================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
SCHEDULE 14D-1
(Amendment No. 2)
Tender Offer Statement Pursuant to Section
14(d)(1) of the Securities Exchange Act of 1934
BERG ELECTRONICS CORP.
(Name of Subject Company)
BERG ACQUISITION CO.
(Bidder)
FRAMATOME CONNECTORS INTERNATIONAL S.A.
(Co-Bidder)
Common Stock, $0.01 Par Value per Share
Class A Common Stock, $0.01 Par Value per Share
(including associated rights to purchase Series A Junior Preferred Stock)
(Title of Class of Securities)
-----------------------
08372 L 10
08372 CLA
(Cusip number)
Alan H. Peltz
Berg Acquisition Co.
c/o Framatome Connectors USA Holding Inc.
55 Walls Drive
Suite 304
P.O. Box 320599
Fairfield, CT 06432-0599
Telephone: 203-319-3940
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications on Behalf of Bidder)
Copies to:
John J. McCarthy, Jr.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Telephone: (212) 450-4000
================================================================================
This Amendment No. 2 amends and supplements the Tender Offer Statement on
Schedule 14D-1 (the "Schedule 14D-1") originally filed with the Securities and
Exchange Commission on September 2, 1998 by Berg Acquisition Co., a Delaware
corporation ("Purchaser"), and Framatome Connectors International S.A., a
corporation organized under the laws of the Republic of France ("Parent"), and
previously amended by Amendment No. 1, relating to the offer by Purchaser (the
"Offer") to purchase all of the issued and outstanding shares of Common Stock,
par value $0.01 per share (the "Common Shares"), of Berg Electronics Corp. (the
"Company") at $35.00 per Common Share, net to the seller in cash, and all of the
issued and outstanding shares of Class A Common Stock, par value $0.01 per share
(the "Class A Shares" and, together with the Common Shares, the "Shares"), of
the Company at $32.965 per Class A Share, net to the seller in cash, including
in each case the associated rights to purchase Series A Junior Preferred Stock
issued pursuant to the Rights Agreement dated as of December 22, 1997 and
amended August 27, 1998, between the Company and Harris Trust and Savings Bank,
upon the terms and subject to the conditions set forth in the Offer to Purchase
(the "Offer to Purchase") and in the related Letter of Transmittal, copies of
which are attached as Exhibits (a)(1) and (a)(2), respectively, to the Schedule
14D-1.
All capitalized terms used in this Amendment No. 1 without definition have
the meanings attributed to them in the Schedule 14D-1.
The items of the Schedule 14D-1 set forth below are hereby amended and
supplemented as follows:
Item 11. Material to Be Filed as Exhibits.
Item 11 of the Schedule 14D-1 is hereby amended and supplemented to add new
Exhibits as follows:
(b)(3) English translation of Bridge Loan Agreement dated as of
September 30, 1998 among Framatome Connectors International S.A., Framatome
S.A., Bayerische Landesbank Girozentrale Paris Branch and Credit Commercial de
France.
(b)(4) English translation of Independent, Irrevocable, First Demand
Guaranty dated as of September 30, 1998 from Framatome S.A. to Credit Commercial
de France.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: October 6, 1998
BERG ACQUISITION CO.
By: /s/ Philippe Anglaret
---------------------------------------------
Name: Philippe Anglaret
Title: Chairman of the Board and President
FRAMATOME CONNECTORS INTERNATIONAL S.A.
By: /s/ Philippe Anglaret
---------------------------------------------
Name: Philippe Anglaret
Title: Chairman and President
FRAMATOME S.A.
By: /s/ Dominique Vignon
---------------------------------------------
Name: Dominique Vignon
Title: Chairman and Chief Executive Officer
FRAMATOME CONNECTORS USA HOLDING INC.
By: /s/ Philippe Anglaret
---------------------------------------------
Name: Philippe Anglaret
Title: President and Chief Executive Officer
EXHIBIT 99.b(3)
[TRANSLATION FROM FRENCH
FOR INFORMATION PURPOSES ONLY]
- --------------------------------------------------------------------------------
BRIDGE LOAN AGREEMENT
- --------------------------------------------------------------------------------
DATED SEPTEMBER 30, 1998
BY AND BETWEEN
FRAMATOME CONNECTORS INTERNATIONAL
Borrower
AND
FRAMATOME
Guarantor
AND
BAYERISCHE LANDESBANK GIROZENTRALE PARIS BRANCH
CREDIT COMMERCIAL DE FRANCE
Co-Arrangers
AND
BAYERISCHE LANDESBANK GIROZENTRALE PARIS BRANCH
CREDIT COMMERCIAL DE FRANCE
Banks
AND
CREDIT COMMERCIAL DE FRANCE
Agent
TABLE OF CONTENTS
1. DEFINITIONS...............................................................7
2. AMOUNT, PURPOSE AND USE OF THE BRIDGE LOAN...............................11
2.1 Amount and Purpose of the Bridge Loan.........................11
2.2 Procedures for Use............................................12
2.3 Waiver of Bridge Loan.........................................14
2.4 Bank Participation Rules......................................14
3. CONDITIONS PRECEDENT.....................................................14
3.1 Conditions Precedent to the First Drawdown....................14
3.2 Conditions Precedent to any Subsequent Drawdown...............15
4. REPAYMENT OF THE BRIDGE LOAN.............................................16
4.1 Normal Repayment..............................................16
4.2 Prepayment....................................................16
5. INTEREST AND LATE PAYMENT INTEREST.......................................17
5.1 Interest......................................................17
5.2 Late Payment Interest.........................................17
6. PAYMENTS.................................................................18
6.1 Payment Procedures............................................18
6.2 Non-receipt of Funds by the Agent.............................18
6.3 Basis for Computation.........................................18
6.4 Covenant Regarding Business Days..............................18
6.5 Application of Payments.......................................18
6.6 Accounts of the Agent.........................................18
6.7 Accounts of the Banks.........................................19
6.8 Nature of Transactions........................................19
7. REPRESENTATIONS AND WARRANTIES...........................................19
7.1 Representations and Warranties of the Borrower................19
7.2 Representations and Warranties of the Guarantor...............21
8. COVENANTS................................................................22
8.1 Annual Consolidated Financial Statements......................22
8.2 Obligations Concerning Information............................22
8.3 Form of Business Organization / Corporate Purpose.............22
8.4 Continuation of Participation.................................22
8.5 Covenants by the Guarantor....................................23
9. ACCELERATION.............................................................23
9.1 Event of Default..............................................23
9.2 Effect of Acceleration........................................24
10. CHANGED CIRCUMSTANCES...................................................25
10.1 New Circumstances............................................25
10.2 Illegality...................................................26
10.3 Market Disruption............................................26
11. COMMITMENT FEE..........................................................28
12. EXPENSES AND COMPENSATION...............................................28
12.1 Stamp Duties.................................................28
12.2 Compensation for Failure to make a Drawdown..................28
12.3 Compensation for Breach......................................28
12.4 Other Expenses and Compensation..............................28
13. BENEFIT OF THE AGREEMENT................................................29
13.1 Successors in Interest and Assigns...........................29
13.2 No Assignment by the Borrower................................29
13.3 Accounting Address...........................................29
14. THE CO-ARRANGERS AND THE AGENT..........................................29
14.1 Appointment..................................................29
14.2 Instructions.................................................30
14.3 Guarantee....................................................30
14.4 Liability of the Agent toward the Banks......................30
14.5 Communications...............................................31
14.6 Compensation.................................................31
14.7 Rights.......................................................31
14.8 Representations of the Banks.................................31
14.9 Agent's Successor............................................32
15. AMENDMENTS..............................................................32
16. EQUALIZATION OF PAYMENTS................................................33
17. NOTICES.................................................................33
18. EFFECTIVE GLOBAL RATE...................................................34
19. SET OFF.................................................................35
20. EXERCISE OF RIGHTS......................................................35
21. GOVERNING LAW - JURISDICTION............................................35
SCHEDULES
Schedule 1. List of Bank Commitments
Schedule 2. Form of Drawdown Notice
Schedule 3. Form of Period Renewal Notice
Schedule 4. Form of Guaranty
Schedule 5. List of Documentary Conditions Precedent
BY AND BETWEEN
1. Framatome Connectors International, a French corporation (societe anonyme)
with stated capital of 2,685,000 francs, having its principal office at
Tour Framatome - 1, place de la Coupole 92400 Courbevoie (France),
registered with the Nanterre Trade and Company Registry under number B 349
566 240, represented by Mr Philippe Anglaret, chairman of the board of
directors, duly empowered for the purposes hereof by a resolution of the
board of directors dated 25 September 1998,
(hereinafter the "Borrower")
2. Framatome, a French corporation (societe anonyme) with stated capital of
francs, having its principal office at Tour Framatome - 1, place de la
Coupole 92400 Courbevoie (France), registered with the Nanterre Trade and
Company Registry under number B 592 018 089, represented by Dominique
Vignon, chairman of the board of directors, duly empowered for the purposes
hereof by a resolution of the board of directors dated 2 September 1998,
(hereinafter the "Guarantor")
3. Credit Commercial de France, a French corporation (societe anonyme) with
its principal office at 103 Avenue des Champs-Elysees, 75008 Paris,
represented by Bertrand Grunenwald and Bernard Boue, acting in its capacity
as Co-Arranger,
(hereinafter "CCF")
4. Bayerische Landesbank Girozentrale, a company organized and existing under
German public law, having its principal office located at 20 Briener
Strasse, 80333 Munich (Germany), acting through its Paris branch located at
203 Faubourg Saint Honore, 75008 Paris (France), represented jointly by
Jean-Louis Gleizes, General Manager, and Jean-Michel Pezard, Assistant
General Manager, acting in its capacity as Co-Arranger,
(hereinafter "BLB")
6. Credit Commercial de France, a French corporation (societe anonyme) with
its registered office at 103 Avenue des Champs-Elysees, 75008 Paris,
represented by Bertrand Grunenwald and Bernard Boue,
(hereinafter the "Agent")
7. Credit Commercial de France, a French corporation (societe anonyme) with
its registered office at 103 Avenue des Champs-Elysees, 75008 Paris,
represented by Bertrand Grunenwald and Bernard Boue, acting in its capacity
as a bank.
8. Bayerische Landesbank Girozentrale, a company organized and existing under
German public law, having its principal office located at 20 Briener
Strasse, 80333 Munich (Germany), acting through its Paris branch located at
203 Faubourg Saint Honore, 75008 Paris (France), represented jointly by
Jean-Louis Gleizes, General Manager, and Jean-Michel Pezard, Assistant
General Manager, acting in its capacity as bank.
RECITALS
WHEREAS
(A) By letter dated 2 September 1998, the Borrower filed a cash tender offer
offre publique dachat) with the New York Stock Exchange (NYSE), for the
shares of Berg Electronics (the "Tender Offer"). The Tender Offer procedure
was opening 2 September 1998.
(B) Within the framework of the Tender Offer, the Borrower asked the
Co-Arrangers to arrange through the Banks a bridge loan in a maximum amount
of FRF 6,000,000,000 (six billion francs) in principal earmarked solely to
finance part of (i) the price to be paid by the Borrower for the purchase
of the Berg Electronics Securities tendered in the Tender Offer and
allocated to the Borrower, (ii) the related costs, and (iii) where
applicable, the price to be paid by the Borrower for the purchase of Berg
Electronics Securities within the framework of any "squeeze out" procedure,
up to a maximum amount of FRF 6,000,000,000 (six billion francs)
corresponding to an assumed response to the Tender Offer of 100%.
(C) The Banks have stated that they are to grant the bridge loan referred to in
paragraph B above to the Borrower on the terms set out in this Agreement.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS
1. DEFINITIONS
1.1 For purposes of applying this Agreement, unless otherwise agreed, the words
and terms set out below shall have the following meanings:
"Acquisition" means the acquisition of full title by the Borrower to the Berg
Electronics Securities tendered in the Tender Offer and allocated to the
Borrower in accordance with the procedures set out in the Information Memorandum
(Note d'Information).
"Agent" means CCF or any bank of financial institution that may take its place
in accordance with the provisions of Article 14.9 ("Agent's Successor").
"Aggregate Commitment" means the sum of the Commitments on a given date, which
is FRF6,000,000,000 (six billion francs) on the date of execution of the
Agreement.
"Agreement" means this Agreement, its Schedules, which constitute an integral
part thereof, and any amendment to this Agreement.
"Available Amount" means, on a given date, the amount of the Aggregate
Commitment on said date, reduced by the total cumulative amount of outstanding
Drawdowns as of said date, it being understood that, upon receipt of a Drawdown
Notice, and at any time between the date of receipt of said Drawdown Notice and
the date of the corresponding Drawdown, the Agent shall make the necessary
adjustments to the Available Amount:
(i) by deducting the amount of any other Drawdown which has been
requested, but not yet made,
(ii) by adding the amount of any Drawdown which comes due before the date of
the requested Drawdown or on that date, and
(iii) by deducting the amount of any reduction in the Aggregate Commitment
that may occur in accordance with the provisions of the Agreement
between receipt of said Drawdown Notice and the date of the Drawdown
requested or that date.
"Banks" means CCF and BLB, whose Commitments are described in detail in Schedule
1.
"Berg Electronics Securities" means the common shares and all other Securities
issued at any time by Berg Electronics.
"Bridge Loan" means the opening of the confirmed bridge loan provided to the
Borrower by the Banks under the Agreement and which may be used in the form of
Drawdowns by the Borrower up to a maximum limit of FRF 6,000,000,000 (six
billion francs) beginning on the date of the Agreement, subject to fulfillment
of the conditions precedent set out in Article 3 ("Conditions Precedent").
"Business Day" means a full day, with the exception of Saturday, Sunday and
holidays, on which banks and lending institutions are open in Paris and New
York, and on which the interbank market in Paris and New York is operating.
"Capital Increase" means collectively (i) the amount of FRF 2.850.000.000 (two
billion eight hundred and fifty million francs) to be paid in as contribution in
cash for the increase of FRF3.000.000.000 (three billion francs) in Borrower's
capital resolved on the 25 September 1998 and which effective payment shall be a
condition precedent to the Banks making the funds available to the Borrower at
the date selected for the first Drawdown, and (i) the amount of FRF 150.000.000
(one hundred and fifty million francs) paid in as contribution in cash for the
increase in Borrower's capital resolved on 24 April 1998 and paid in on 29 June
1998 up to FRF 150,000,000 (one hundred and fifty million francs), the rest of
the FRF 150,000,000 (one hundred fifty million francs) was being paid in on 22
September 1998.
"Co-Arrangers" means CCF and BLB.
"Commitment" means, on a given date, for each of the Banks, the maximum amount
which each of said Bank undertakes (but not jointly and severally) to make
available to the Borrower under the Bridge Loan in the form of Drawdowns. The
initial amount of the Commitment of each Bank on the date of execution of the
Agreement is set out in Schedule 1.
"Consolidated Subsidiaries" means the Subsidiaries falling within the scope of
consolidation of Framatome, including the Borrower [and Berg Electronics].
"Depositary" means Harris Trust and Savings Bank, located c/o Harris Trust
Company of New York, Receive Window Wall Street Plaza, 88 Pine Street, 19th
Floor, New York, NY 10005, USA, acting in its capacity as "depositary" within
the framework of the Tender Offer.
"Depositary Notice" means any notice sent to the Borrower by the Depositary at
the end of the Tender Offer procedure specifying, in particular, the number of
Berg Electronics Securities tendered in the Tender Offer.
"Drawdown" means the use by the Borrower by means of a Drawdown Notice of all or
some part of the Aggregate Commitment for the Interest Period selected in any
Drawdown Notice or selected in any Period Renewal Notice in the case of renewal
in accordance with the provisions of Article 4.1.2, with the renewal of a
Drawdown in accordance with the provisions of Article 4.1.2 being considered a
new Drawdown for purposes of this Agreement, or the unrepaid principal amount of
any such use, as the case may be.
"Drawdown Notice" means any notice to be sent by the Borrower to the Agent for
any Drawdown for which funds are made available, in accordance with Article 2
("Procedures for Use"), a specimen of which is found in Schedule 2.
"Event of Default" means any of the events referred to in Article 9.1 ("Events
of Default").
"Final Due Date" means the date on which all sums owed by the Borrower must be
paid or repaid and on which all of the Borrower's other obligations arising out
of the Agreement must be fulfilled. The Final Due Date is fixed at December 31,
1998.
"Franc" or "franc" means the currency which is legal tender in France at a given
time.
"Group" means Framatome, the Borrower and the Consolidated Subsidiaries.
"Guarantor" means Framatome in its capacity as Guarantor under the Guaranty.
"Guaranty" means the independent, irrevocable, first-demand guaranty provided by
Framatome in favor of the Agent and for the benefit of the Banks as condition
precedent to the making available of the first Drawdown, securing repayment of
the Bridge Loan, which guaranty is in the form of the specimen appearing in
Schedule 4.
"Information Memorandum" means the information memorandum ("Note d'Information")
of the Borrower submitted within the framework of the Tender Offer.
"Interest Payment Date" means the last day of an Interest Period.
"Interest Period" means, for the computation of the interest on any Drawdown, a
minimum period of ten (10) days and a maximum of three (3) months as specified
in the corresponding Drawdown Notice. Any Interest Period shall begin on the
Drawdown date concerned, which shall be a Business Day and shall end on the last
day of the period selected, it being understood that if the last day is not a
Business Day, said Interest Period shall end on the next Business Day following,
unless this falls in the next calendar month, in which case said Interest Period
shall end on the next preceding Business Day.
"Letter of Acceptance" means the letter sent by the Borrower in response to the
Depositary Notice confirming the Borrower's agreement to acquire the Berg
Electronics Securities tendered in the Tender Offer.
"Majority Banks" means no fewer than two Banks whose total Commitments account
for no less than 67% of the Aggregate Commitment or, if the Aggregate Commitment
has been reduced to zero, which accounted for 67% of the Aggregate Commitment
immediately before it was reduced to zero.
"Margin" means a rate of 0.15% per annum.
"NYSE" means the New York Stock Exchange or any other regulated market which may
replace it in the future.
"Offering Documents" means the Information Memorandum and the Agreement and Plan
of Merger dated 27 August 1998 between Framatome Connectors International, Bravo
Acquisition Corp. and Berg Electronics.
"Period Renewal Notice" means any notice to be sent by the Borrower to the Agent
for any Drawdown which consists of a renewal of an existing Drawdown, in
accordance with Article 2 ("Procedures for Use"), a specimen of which appears in
Schedule 3.
"PIBOR" or "TIOP" means "Paris Interbank Offered Rate" expressed in the form of
an annual rate, as published (at this time, on page 20041 of the Telerate
screen) under the auspices of the French Banking Association (Association
Francaise des Banques) at approximately 11:30 am (Paris time) on the Business
Day preceding the day scheduled for a Drawdown, for deposits denominated in
French francs on the Paris interbank market at approximately 11:00 am (Paris
time) for a time period equal to the Interest Period concerned, and for an
amount comparable to that of the Drawdown concerned.
In the event that the said rate is not published, PIBOR shall be the annual rate
computed by the Agent, which is equal to the arithmetic mean (rounded up to the
next one-sixteenth of one percent, where applicable) of the rates quoted at the
request of the Agent by the Reference Banks for deposits in French francs on the
Paris interbank market at approximately 11:00 am (Paris time) one (1) Business
Day before the day scheduled for a Drawdown, for a time period equal to that of
the Interest Period concerned, and for an amount comparable to that of the
Drawdown.
In the event that a Reference Bank has not forwarded its rate to the Agent by
approximately 11:30 am (Paris time) on the specified day, PIBOR shall be
computed by the Agent on the basis of the rates provided by the other two
Reference Banks. If no other Reference Bank quotes a rate, or if only one
Reference Bank does so, the rate to be used for the Interest Period concerned
shall be computed in accordance with the provisions of Article 10.3 ("Market
Disruption").
In the event that PIBOR should disappear and be replaced by a rate of the same
or an equivalent type, as well as in the event of a change affecting the
organization which publishes the said rate or the procedures governing
publication, including but not limited to as a result of the changeover to the
single European currency, the rate which results from said change or replacement
shall apply by operation of law.
"Reference Banks" means the principal offices in Paris of Paribas, Credit
Agricole Indosuez and Credit Lyonnais and a "Reference Bank" means any one of
them.
"Reference Rate" means either (i) PIBOR, provided that the Interest Period
concerned, as selected by the Borrower in any Drawdown Notice (or any Period
Renewal Notice, as the case may be) is equal to one (1), two (2) or three (3)
months, or (ii) the annual rate computed by the Agent, equal to the arithmetic
mean (rounded up, where applicable, to the next one- sixteenth of one percent)
of the rates quoted at the request of the Agent by the Reference Banks for
deposits denominated in francs on the Paris interbank market at approximately
11:00 am (Paris time) one (1) Business Day before the day scheduled for a
Drawdown, for a period equal to that of the Interest Period concerned and for a
standard amount, in light of practices on the Paris interbank market on the date
concerned, where the Interest Period concerned, as selected by the Borrower in
any Drawdown Notice (or any Period Renewal Notice, as the case may be) is
different from the time periods specified in (i) above.
With respect to the Interest Periods referred to in (ii), and in the event that
a Reference Bank fails to provide its rate to the Agent at approximately 11:30
am (Paris time) on the scheduled date, the Reference Rate shall be computed by
the Agent on the basis of the rates provided by the other two Reference Banks.
If no Reference Bank quotes a rate, or if only one Reference Bank does so, the
rate to be used for the Interest Period concerned shall be computed in
accordance with the provisions of Article 10.3 ("Market Disruption").
"SEC" means the oversight commission known as the "Stock Exchange Commission" or
any supervisory authority for the NYSE that may replace it in the future.
"Securities" means any share, bond, warrant or other security or their
equivalent under US law, granting rights in the capital of a company either
immediately or at some future date, through the exercise of an option or
otherwise.
"Squeeze Out" means either (i) the simplified so-called "squeeze out" procedure
which may be initiated by the Borrower once it has accepted a number of Berg
Electronics Securities tendered in the Tender Offer representing more than 90%
of such Berg Electronics Securities as may be allocated to the Borrower within
the framework of the Tender Offer, or (ii) the statutory merger procedure that
may be initiated by the Borrower once it has accepted a number of Berg
Electronics Securities tendered in the Tender Offer representing a percentage of
Berg Electronics Securities that may be allocated to the Borrower within the
framework of the Tender Offer which falls between 50% and 90%.
"Subsidiaries" means, at any time, all companies directly or indirectly
controlled by Framatome and/or the Borrower within the meaning of article 355-1
of the Act of July 24, 1966.
"Tender Offer" has the meaning given to it in paragraph A of the Recitals.
"TMP" means, for a given period, the average daily money market rate for
commercial paper, stated as an annual rate, determined by Banque de France,
which presently appears on page 20118 of the Telerate screen on the Business Day
preceding the start of said period, as well as each following Business Day
during said period, with the exception of the last day of said period.
In the event that TMP should disappear or be replaced by a rate of the same or
an equivalent type, as well as in the event of a change affecting the
organization which publishes it or the procedures for publication, including but
not limited to as a result of the changeover to the single European currency,
the rate which results from said change or replacement shall apply by operation
of law.
"Transaction Documents" means the Agreement, the Guaranty and the Offering
Documents.
1.2 Article headings in this Agreement are solely for ease of reference and
shall not be considered in interpreting it. Any reference to "Articles",
"paragraphs", "Recitals" or "Schedules" shall be deemed to be reference to the
articles, paragraphs, recitals or schedules of this Agreement.
2. AMOUNT, PURPOSE AND USE OF THE BRIDGE LOAN
2.1 Amount and Purpose of the Bridge Loan
2.1.1 In accordance with the terms of the Agreement, and on the basis of the
representations and warranties of the Borrower set out in Article 7.1 and the
representations of the Guarantor set out in Article 7.2, the Banks, subject
to fulfillment of the conditions precedent set out in Article 3 ("Conditions
Precedent") agree to make the Bridge Loan available to the Borrower in a maximum
principal amount of FRF 6,000,000,000 (six billion francs).
2.1.2 The Bridge Loan is exclusively intended to finance a part of (up to the
Available Amount thereof) (i) the Acquisition and (ii) related expenses, as well
as (iii) any bond which the Borrower may be required by the relevant regulatory
authorities to post in the event of a Squeeze Out initiated by the Borrower
(each of which shall be referred to as the "Bond").
2.1.3 Without prejudice to the Borrower's obligations arising under the
provisions of Article 8 ("Covenants"), none of the Banks, the Agent or any of
the Co-Arrangers shall incur any liability in connection with the use of the
sums made available to the Borrower under one or more Drawdowns. Each Bank's
only obligation under the Agreement with respect to the Bridge Loan shall be to
make the amount of its Commitment available in accordance with the terms and
conditions of the Agreement.
2.2 Procedures for Use
Subject to fulfillment of all of the relevant conditions precedent set out in
Article 3 ("Conditions Precedent"), and provided that no Event of Default has
occurred and that all of the representations made by the Borrower and by the
Guarantor under the Agreement are valid and accurate as of the date of the
Drawdowns concerned, the Borrower may make drawdowns subject to the following
conditions:
2.2.1 First Drawdown
(a) The Borrower shall have received the Depositary Notice and shall have sent
the Letter of Acceptance; in addition, the date of the first Drawdown
selected by the Borrower shall be consistent with the payment periods
ordinarily used on the NYSE for the acquisition of listed securities after
their acceptance by an offeror in a tender offer comparable to the Tender
Offer.
(b) The maximum amount of the first Drawdown shall be equal to the amount of
the price to be paid by the Borrower for the Berg Electronics Securities
tendered in the Tender Offer and allocated to the Borrower prior to the
date of the first Drawdown or on said date, (i) increased by the
corresponding expenses and fees and, where applicable, by the amount of the
price to be paid for the acquisition of Berg Electronics Securities in the
case of a Squeeze Out and (ii) reduced by the amount of the Capital
Increase to be paid in as a condition precedent to the provision of the
funds on the date scheduled for the First Drawdown, subject, however, to
the Available Amount as of that date.
2.2.2 Subsequent Drawdowns
Following the first Drawdown, the Borrower may make subsequent drawdowns in
order to finance all or part of the price to be paid (increased by the
corresponding expenses and fees, and, where applicable, by the amount of the
price to be paid for the acquisition of Berg Electronics Securities in a Squeeze
Out by the Borrower for such additional Berg Electronics Securities as are
acquired by the Borrower following the date on which the first Drawdown is made
available, and in particular, in the event of an extension of the Tender Offer.
2.2.3 Procedures for Use Which Apply to All Drawdowns
Provided that funds are being made available thereunder, each Drawdown shall be
made on the terms set out in subsections (a) through (f) below:
(a) No later than 2:00 p.m. (Paris time) on the second Business Day before the
date of the Drawdown concerned, the Borrower shall send the Agent a
Drawdown Notice in the form of the specimen appearing in Schedule 2, which
shall specify the amount of the Drawdown computed in accordance with the
provisions of Article 2.2.1 (if it is the first Drawdown) or 2.2.2 (if it
is a subsequent Drawdown), irrevocably ordering the Agent to make the
Drawdown in accordance with the transfer instructions specified in said
Drawdown Notice. Before 4:00 p.m. on that same day (Paris time), the Agent
shall advise the Banks of the content of the Drawdown Notice received from
the Borrower;
(b) No later than the date scheduled for the Drawdown, each of the Banks shall
transfer, for value the date of the Drawdown, to the Agent's account, that
portion of the amount of the Drawdown which is represented by the ratio of
its Commitment to the Aggregate Commitment. The Agent shall then make the
amounts received from the Banks available to the Borrower in accordance
with the instructions set out in the Drawdown Notice concerned;
(c) Each Drawdown Notice shall be sent in the form of the specimen which
appears in Schedule 2, and shall specify:
(i) the amount of the Drawdown, which shall be a whole multiple of FRF
10,000,000 (ten million francs), but shall not, however, exceed the
Available Amount on the date of the Drawdown concerned:
(ii) the date scheduled for making the Drawdown available, which must be a
Business Day;
(iii) the length of the Interest Period applicable to the Drawdown; and
(iv) the details of the account or accounts to which the amount of the
Drawdown shall be credited.
(d) No Drawdown shall take place, at the request of the Borrower, if the
characteristics thereof are in contravention of any of the following
provisions:
(i) several Drawdowns may occur on the same day, subject to a limit of six
(6) Drawdowns on any one day, provided, however, that they are
requested for Interest Periods of different lengths. No Drawdown (or,
if two or more than two Drawdowns, but not more than six Drawdowns,
are made on the same day, no series of Drawdowns) shall occur fewer
than two (2) Business Days after the date of the previous Drawdown (or
previous series of Drawdowns);
(ii) at no time shall the number of outstanding Drawdowns be greater than
twelve (12);
(iii) the final day of the Interest Period selected shall not be later than
the Final Due Date; and
(iv) the amount of the Drawdown shall not have the effect of making the
Bridge Loan available to the Borrower in an amount which is greater
than the Available Amount on the date scheduled for the Drawdown
concerned;
(e) Each Drawdown Notice shall be deemed to entail a reaffirmation by the
Borrower of the representations set out in Article 7.1 and the
representations of the Guarantor set out in Article 7.2 and shall be
irrevocably binding on the Borrower, which shall be required to make the
Drawdown concerned on the date and in accordance with the procedures
stipulated therein;
(f) No Drawdown Notice which does not include the information specified in
subsection (c) above and/or which does not conform to the specimen Drawdown
Notice appearing in Schedule 2, or which fails to comply with the
conditions specified by the Agreement, and in particular the provisions of
subsection (d) above, shall under any circumstances result in a Drawdown
being made.
Provided that it is merely a renewal as provided in Article 4.1.2, in order to
made, each Drawdown shall require a Period Renewal Notice in the form of the
specimen appearing in Schedule 3. The same conditions and provisions as are set
out in subsections (a), (c), (d) and (e) above for the use of Drawdowns in which
funds are made available shall similarly apply to any Drawdown which consists of
the renewal of an existing Drawdown, and the information which appears on a
Drawdown Notice shall be replaced by the information appearing in a Period
Renewal Notice.
2.3 Waiver of Bridge Loan
2.3.1 Up until the Final Due Date, the Borrower shall have the right to
conclusively waive its rights, in advance and without any penalty, in or to all
or any part of the Aggregate Commitment on the following terms and conditions:
(a) the waiver is subject to prior written notice received by the Agent no
later than five (5) Business Days before the date of the contemplated
waiver;
(b) the waiver shall be for a principal amount which must be a whole multiple
of FRF 10,000,000 (ten million francs).
2.3.2 Any waiver of rights in or to the Bridge Loan shall be irrevocable and
final and shall result in a proportionate reduction in the Commitment of each
Bank. That portion of the Aggregate Commitment which is waived may not be
reused.
2.4 Bank Participation Rules
2.4.1 The rights and obligations of each of the Banks toward the Borrower
under the Agreement constitute separate and distinct legal relations with
respect to the Borrower and shall not give rise to any relationship of joint and
several liability among the Banks.
2.4.2 Each Bank individually and irrevocably undertakes to participate in any
Drawdown in a percentage equal to the proportion which its Commitment bears to
the Aggregate Commitment on the date of the Drawdown concerned, subject to the
other terms and conditions of the Agreement.
3. CONDITIONS PRECEDENT
3.1 Conditions Precedent to the First Drawdown
3.1.1 The Bridge Loan shall be made available, and payment of the first
Drawdown shall be made, subject to prior fulfillment, no later than the date
scheduled for the first Drawdown, of the condition precedent, which is
stipulated solely in the interest of the Banks, that all of the documents listed
in Schedule 5 be remitted to the Agent in form and substance satisfactory to the
Agent.
3.1.2 The Bridge Loan shall be made available and payment of the first
Drawdown shall be made, subject to prior or simultaneous fulfillment, at the
latest on the Notice Drawdown date with respect to the conditions set out in
subsection (a), (b), (d) and (e) below, or no later than the date of the first
Drawdown with respect to the conditions set out in (c) below, of the following
conditions precedent, which are stipulated solely in the interest of the Banks:
(a) proof that the Borrower has sent the Depositary the Letter of Acceptance in
response to the Depositary Notice received by the Borrower;
(b) execution and actual entry into force of the Guaranty in accordance with
its terms;
(c) proof of actual completion of the Capital Increase and payment of that
portion of the Capital Increase to be paid up as a condition precedent to
making the funds available on the date scheduled for the first Drawdown;
(d) (where, and only where, the Borrower has initiated a Squeeze Out) proof of
final completion of the statutory merger which is to occur within the
framework of the Squeeze Out in accordance with the terms and conditions of
the Information Memorandum; and
(e) that no Event of Default has occurred or is continuing.
3.2 Conditions Precedent to any Subsequent Drawdown
Drawdowns subsequent to the first Drawdown shall be made available subject to
prior or simultaneous fulfillment, which must be recorded no later than the date
of the Drawdown concerned or any Drawdown Notice or any Period Renewal Notice,
as the case may be, of the following conditions precedent, which are stipulated
solely in the interest of the Banks:
(a) proof that the Borrower has sent the Depositary the Letter of Acceptance in
response to the Depositary Notice received by the Borrower, with respect to
the additional Berg Electronics Securities tendered in the Tender Offer
after the date of the first Drawdown (this condition is not, however,
applicable in the case of a Drawdown which merely consists of a renewal as
provided in Article 4.1.2, or if the Drawdown is solely intended to finance
the Bond);
(b) (if the Drawdown is solely intended to finance the price to be paid for
the acquisition of the Berg Electronics Securities within the context of a
Squeeze Out, and only in that case) proof of final completion of the
statutory merger which is to occur within the framework of the Squeeze
Out, in accordance with the terms and conditions set out in the
Information Memorandum; and
(c) that no Event of Default has occurred or is continuing.
4. REPAYMENT OF THE BRIDGE LOAN
4.1 Normal Repayment
4.1.1 The Borrower shall repay the Agent, for the benefit of the Banks, the
principal amount of each Drawdown on the Interest Payment Date corresponding to
the last day of the Interest Period for said Drawdown, except where the Drawdown
is renewed for a new Interest Period on the conditions set out in Article 4.1.2.
4.1.2 No sum which has been repaid on a Drawdown may be borrowed again, and
no Drawdown shall have the purpose or effect of extinguishing all or any part of
the Borrower's debt under the Agreement, or of working a novation of the
Borrower's commitments by creating a new debt. However, with respect to any
Drawdown, the Borrower shall have the right to renew the Drawdown concerned for
a new Interest Period, the length of which he shall specify by sending the Agent
a Period Renewal Notice, subject to the provisions of Article 2.2.3 above.
4.1.3 In the case of renewal on the terms set out in Article 4.1.2, the
Borrower shall repay the principal amount of the Drawdown concerned on the last
day of the last Interest Period applicable to said Drawdown, it being understood
that all amounts made available to the Borrower in the form of Drawdowns shall
be fully and finally repaid on the Final Due Date.
4.2 Prepayment
4.2.1 Prepayment at the Borrower's Initiative
The Borrower shall have the right at any time to prepay (the "Prepayment Date")
all or some part (and, in the latter case, the amount must be a whole multiple
of FRF 10,000,000 (ten million francs)), of any outstanding Drawdown subject to
prior, written notice of at least five (5) Business Days given to the Agent, who
shall promptly notify the Banks thereof.
4.2.2 Mandatory Prepayment
The Borrower shall be obligated to prepay any outstanding Drawdown on each of
the following dates:
(a) on the date on which the Borrower issues registered bonds in order to
refinance the Bridge Loan, in the amount of the total nominal amount of the
tranche or tranches issued;
(b) on the date on which it is discovered that the Borrower has failed to
deliver, for any reason whatsoever, one or more of the Berg Electronics
Securities accepted by the Borrower in the Letter of Acceptance, in the
amount of the purchase price of all of the Berg Electronics Securities in
question.
The Agent shall promptly inform the Banks of any mandatory prepayment to be
made.
4.2.3 Conditions Common to all Prepayments
On the Prepayment Date concerned, the Borrower shall repay the Agent, for the
benefit of the Banks, the principal amount of all or some of the Drawdown or
Drawdowns concerned and shall pay the Agent, for the benefit of the Banks, an
amount equal to the sum:
(a) of the accrued interest on the amount being prepaid, computed in accordance
with Article 5.1 ("Interest"), between the date on which the amount
concerned was made available and the Prepayment Date concerned, as well as
all such other amounts, if any, as may be owed in connection with said
amounts and are outstanding on the date concerned; and
(b) where applicable, an amount equal to the compensation provided for in
Article 12.3 ("Compensation for Breach").
All prepayments shall be final and shall result in a reduction in the Aggregate
Commitment and a proportionate reduction in the Commitment of each Bank.
5. INTEREST AND LATE PAYMENT INTEREST
5.1 Interest
Interest shall be owed on the principal amount of each Drawdown and shall be
paid on each Interest Payment Date at an annual rate equal to the Reference Rate
applicable to the Interest Period concerned, increased by the Margin. As soon as
possible following computation of the applicable Reference Rate for each
Drawdown, the Agent shall compute the interest owed for the period concerned and
shall promptly inform the Borrower thereof.
5.2 Late Payment Interest
5.2.1 In the event that all or some part of an amount owed in connection with
performance of the Agreement is not paid when due, the Borrower shall owe
interest on said amount between the date on which payment should have been made
and the date on which payment is actually made, computed at a rate determined by
the Agent as the TMP reference rate increased by the Margin, plus 1.5% per
annum, all of the foregoing by operation of law, without any prior formal notice
being required, and without prejudice to any of the other rights or actions of
the Banks. The Borrower shall also pay all such sums as may be owed to the Banks
and/or to the Agent under the Agreement.
5.2.2 Receipt of the late payment interest referred to in Article 5.2.1 shall
not under any circumstances constitute the grant of a payment extension, or a
waiver of any rights whatsoever of the Banks under the Agreement or the ordinary
law.
5.2.3 Such sums as are owed by the Borrower and are outstanding for an entire
year following the date on which they were due shall be compounded in accordance
with Article 1154 of the Civil Code (Code Civil) and shall generate interest at
a rate to be determined by the Agent in accordance with the provisions of
Article 5.2.1.
6. PAYMENTS
6.1 Payment Procedures
Unless otherwise provided in the Agreement, any amount which is to be made
available to the Borrower by the Banks and any amount owed by the Borrower to
the Banks shall be paid to the Agent no later than 11:00 am (Paris time) on the
Business Day concerned, for value on the payment date, in immediately available
funds, by transfer to such account as the Agent may identify for the Borrower
and the Banks as the account to which the payments should be made. The Agent
shall pay over the amount concerned, for value on the payment date, to the party
to which said amount is owed, to such account as said party has identified to
the Agent, paying over such amounts as it has received. It is specified that
with respect to any amount to be paid to the Banks, only their share of the
amounts collected by the Agent shall be paid to them.
6.2 Non-Receipt of Funds by the Agent
For the purposes hereof, the Agent is entitled to presume that any payment owed
to a party was made on the date on which said payment was due and payable and to
pay to the party to which said payment is owed an amount corresponding to its
share of the said payment. However, in the event that for some reason the Agent
does not receive some portion of an amount owed under the Agreement, the Agent
shall not be obligated to advance said amount to the intended recipients of the
said payment, and shall only be obligated to distribute such amounts as have
actually been paid to its account, in such proportions as are owed to each
recipient of the payment concerned.
6.3 Basis for Computation
Interest, fees and other amounts computed on an annual basis and payable under
this Agreement shall be computed on the basis of the exact number of days
elapsed during the period concerned (including the first day of the period, but
excluding the last day of the period) on the basis of a three hundred and sixty
(360) day year.
6.4 Covenant Regarding Business Days
Any repayment of principal and any payment of interest or fees which is to be
made on a day which is not a Business Day shall be postponed to the next
following Business Day, unless this causes the payment date to fall into the
next calendar month, in which case the date of payment shall be the immediately
preceding Business Day.
6.5 Application of Payments
Any partial payment received from the Borrower shall be applied against the
expenses and fees, and then the interest, and finally, against the principal
amount due and payable on each Drawdown in the chronological order in which they
are due.
6.6 Accounts of the Agent
In accordance with its standard practice, the Agent shall open one or more
accounts in its books which separately summarize the amounts in principal,
interest, fees, expenses and incidental costs owed by the Borrower to each Bank
under the Agreement. The Agent shall credit to this account or accounts the
principal amount and the amount of interest, fees, expenses and incidental costs
paid to each Bank following a payment or repayment by the Borrower under the
Agreement.
6.7 Accounts of the Banks
In accordance with its standard practice, each Bank shall open and maintain on
its books one or more accounts from which each amount owed by it under the
Agreement shall be debited, and to which each repayment of principal pursuant to
the Agreement shall be credited. Each Bank shall also maintain a detailed
statement of the interest and such other amounts as are received by it in
performance of the Agreement, in accordance with its standard practice.
6.8 Nature of Transactions
Transactions in connection with the operation of the Bridge Loan shall not be
recorded in any current accounts which the Borrower may or shall have with the
Agent. The accounts kept by the Agent and the Banks and referred to in Articles
6.6 ("Accounts of the Agent") and 6.7 ("Accounts of the Banks") in order to be
able to track the transactions made in performance of the Bridge Loan shall be
nothing more than accounting instruments, and shall not have the legal effects
associated with a current account.
7. REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties of the Borrower
On the date on which the Agreement is signed, the Borrower makes the following
representations and warranties to the Agent and the Banks and agrees that these
representations shall be deemed reaffirmed on the date on which any Drawdown
Notice is sent, on the date of each Drawdown, and on each Interest Payment Date:
7.1.1 Existence - Capacity: The Borrower is a corporation duly organized and
existing under French law (societe anonyme), incorporated in accordance with the
applicable regulations; the Borrower has full capacity to hold and exercise its
rights and to carry on such business as it currently carries on and to own such
assets as it owns; the Borrower has capacity to sign the Transaction Documents
and to fulfill its obligations thereunder.
7.1.2 Corporate Authorizations: The execution of the Transaction Documents
was duly authorized by the relevant governing bodies of the Borrower and the
Borrower took all necessary steps to secure the required authorizations from the
relevant stock exchange authorities and from the relevant merger control and
competition law authorities both in France and the United States, and in the
European Union.
7.1.3 Compliance with Articles of Incorporation and By-laws (Statuts): The
execution of the Transaction Documents and the performance of the Borrower's
obligations thereunder do not contravene any provision of its articles of
incorporation and by-laws nor any provision of the agreements or undertakings by
which it is bound or which concern its assets, nor does it in any way violate
any of the statutes or regulations applicable to the Borrower.
7.1.4 Validity of Undertakings: The Transaction Documents constitute and
shall continue to constitute after each Drawdown has been made available, valid,
legal undertakings by the Borrower which enforceable against third parties and
legally binding on the Borrower in accordance with each of their terms.
7.1.5 Unconditional, Pari Passu Obligations - No Immunity: The obligations of
the Borrower under the Agreement are unconditional and shall rank at least pari
passu with the unsecured, unsubordinated indebtedness of the Borrower and are
not entitled to any immunity from jurisdiction or execution.
7.1.6 Disputes: No judicial, administrative or arbitral proceeding or lawsuit
is pending or, to its knowledge, threatened or about to be brought or initiated
against the Borrower for an amount in controversy in excess of FRF 100,000,000
(one hundred million francs) that would be likely to prevent or preclude the
execution or performance of a Transaction Document or which could have a
material adverse affect on the assets, business or financial, legal or economic
condition of the Borrower or on the Borrower's ability to fulfill its
obligations under the Agreement and the Borrower is not aware of any event
likely to trigger any such lawsuit or proceeding.
7.1.7 Bankruptcy Proceedings: The Borrower is not "insolvent" within the
meaning of applicable French case law and has not been advised of any action,
steps or proceeding whatsoever taken or contemplated by any person whatsoever
for the purpose of (i) causing or seeking to have it file for bankruptcy, be
dissolved, placed in liquidation or judicial administration, or for the
appointment of a conciliator or receiver for the management or administration of
all or some part of its assets, and/or (ii) negotiating or finalizing any
arrangement with creditors in connection with its indebtedness.
7.1.8 No Event of Default, etc.: No Event of Default has occurred and no
material fact or event has occurred or arisen since the date of the most recent
audited consolidated financial statements of the Group which is likely to call
into question the Banks decision to make the Bridge Loan available to the
Borrower in accordance with the terms of this Agreement.
7.1.9 Taxes and Duties - Set-offs, etc.: The Borrower has complied with all
of its tax and social security obligations in connection with the reporting and
payment of all taxes, social security contributions, levies or other charges in
accordance with the statutes and regulations applicable to it.
7.1.10 Accounting Books and Records: All accounting books and records
concerning the Borrower and the consolidated financial statements of the Group,
regardless of whether they are audited, provided to the Agent pursuant to any of
the provisions of this Agreement or independently thereof, are true and
accurate, have been prepared in accordance with generally accepted accounting
principles in France, have been consistently applied from one financial year to
the next, and faithfully reflect the accounting and financial position and
earnings or losses of the Borrower and the Group for each financial year.
7.1.11 Tender Offer - Offering Documents: Neither the Tender Offer nor the
Acquisition will, on the first Drawdown date, contravene any regulation
whatsoever applicable in France, the European Union or the United States, and in
particular, they are not in contravention of any merger control regulation; the
Borrower is not aware of any fact likely to call the Tender Offer and/or the
Acquisition into question and no relevant authority or third party with standing
to sue has stated that it intends to contest the filing of the Tender Offer, the
conduct or closure of the Tender Offer procedure or completion of the
Acquisition; the Offering Documents have not been modified, amended or canceled
in any manner whatsoever since the date each of them was signed, and the
transactions therein are still planned to be carried out on the same terms.
7.2 Representations and Warranties of the Guarantor
As of the date of execution of the Agreement and/or where applicable below, of
the entry into effect of the Guaranty, the Guarantor makes the following
representations and warranties to the Agent and to the Banks and agrees that
said representations shall be deemed to be reaffirmed on the date on which the
Borrower sends any Drawdown Notice, on the date of each Drawdown, and on each
Interest Payment Date:
7.2.1 Existence - Capacity: The Guarantor is a corporation duly organized and
existing under French law (societe anonyme), incorporated in accordance with the
applicable regulations; the Borrower has full capacity to hold and exercise its
rights and to carry on such business as it currently carries on and to own such
assets as it owns; the Borrower has capacity to sign the Agreement and to
fulfill its obligations thereunder and, on the date on which the Guaranty enters
into effect, the Guarantor shall have the capacity to sign the Guaranty and to
fulfill its obligations thereunder.
7.2.2 Corporation Authorizations, etc.: The execution of the Agreement was
duly authorized by the relevant governing bodies of the Guarantor and does not
require any authorization by any competent authorities in France and, on the
date of entry into effect of the Guaranty, the Guarantor shall have been
authorized to provide the Guaranty by a valid resolution, still in force, of the
Guarantor's board of directors; as a general matter, the Guarantor has secured
and received all authorizations required to carry on its business in accordance
with the statutes and regulations applicable to it.
7.2.3 Compliance with Articles of Incorporation and By-laws, etc.: The
execution of the Agreement and the performance of the Guarantor's obligations
thereunder are not in contravention of any provision its articles of
incorporation and by-laws or any provision of the agreements or undertakings by
which it is bound or which concern its assets nor do they in any way violate the
statutes or regulations applicable to it; on the date it enters into effect, the
provision of the Guaranty and performance of the Guarantor's obligations
thereunder are not in contravention of any provision of its articles of
incorporation and by-laws or any provision of the agreements or undertakings by
which it is bound or which concern its assets, nor do they in any way violate
the statutes or regulations applicable to it.
7.2.4 Validity of Undertakings: The Agreement constitutes and shall continue
to constitute after each Drawdown is made available, legal and valid obligations
of the Guarantor, with respect to the provisions which concern it, enforceable
against third parties and binding on the Guarantor in accordance with each of
their terms. On the date on which the Guaranty goes into effect and throughout
the entire term of the Agreement after said date, the Guaranty shall constitute
a legal, valid undertaking by the Guarantor enforceable against third parties
and binding on the Guarantor in accordance with each of the terms of the
Guaranty.
7.2.5 Unconditional and Pari Passu Obligations - No Immunity: The obligations
of the Guarantor under the Agreement and the Guaranty shall be unconditional and
shall rank at least pari passu with the unsecured, unsubordinated indebtedness
of the Guarantor, and the Guarantor is not entitled to any immunity from
jurisdiction or execution.
7.2.6 Bankruptcy Proceedings: The Guarantor is not "insolvent" within the
meaning of applicable French case law and has not been advised of any action,
steps or proceeding whatsoever taken or contemplated by any person whosoever for
the purpose of (i) asking or causing it to file for bankruptcy, be dissolved,
placed in liquidation or judicial administration, or for the appointment of a
conciliator or receiver for the management or administration of all or some part
of its assets, and/or (ii) negotiating or finalizing any arrangement with
creditors in connection with its indebtedness.
8. COVENANTS
For so long as it is allowed to borrow under the present Agreement and/or any
sum whatsoever continues to be owed to the Banks and/or the Agent under the
Agreement and/or it continues to be subject to any obligation pursuant to any
provision whatsoever of the Agreement, the Borrower (and, with respect to the
covenant set out in Article 8.5, the Guarantor) agree to abide by the following
covenants:
8.1 Annual Consolidated Financial Statements: No later than the date on
which the first Drawdown is made available, the Borrower shall provide the Agent
with the most recent annual consolidated audited financial statements of the
Group and of the Borrower, as well as the corresponding management reports and
statutory auditors' reports, and the most recent unaudited consolidated
semi-annual financial statements of the Group, as well as of the Borrower.
8.2 Obligations Concerning Information: The Borrower shall advise the Agent
as soon as it learns of (i) the occurrence of any Event of Default, (ii) any
material change in the composition of its governing bodies, (iii) any dispute or
litigation relating to or arising out of the Tender Offer and/or the
Acquisition, (iv) the occurrence of any material event likely to affect its
ability to fulfill its obligations under any of the Transaction Documents, and
in particular, its ability to repay or pay any amount owed under the Agreement
when due, and (v) the threat or occurrence of any dispute likely to have a
material adverse effect on the amount or value of its assets or undertakings, or
those of Berg Electronics.
8.3 Form of Business Organization/Corporate Purpose: The Borrower
undertakes not to allow any change to be made to its form of business
organization or corporate purpose and undertakes to ensure that Berg Electronics
will not alter its corporate purpose.
8.4 Continuation of Participation: Throughout the entire term of the
Agreement, Framatome shall at all times directly hold more than 66.67% of the
Securities and voting rights making up the capital stock of the Borrower.
8.5 Covenants by the Guarantor: For so long as it continues to be bound
under the Guaranty and any amount continues to be owed under the Agreement
and/or Guaranty and/or the Borrower continues to be subject to any obligation
whatsoever under the Agreement and/or the Guarantor continues to be subject to
any obligation whatsoever under the Agreement and/or Guaranty, the Guarantor (i)
guarantees that the Borrower, in accordance with the provisions of this
Agreement, shall comply with all of the Borrower's covenants under the
Agreement, and in particular those set out in this article, (ii) undertakes not
to grant or allow the grant of any Lien whatsoever to secure payment or
repayment of any indebtedness of the Guarantor or a third party guaranteed by
the Guarantor (regardless of whether said indebtedness exists as of the date of
the Agreement or arises subsequent to that date) provided, however, that it may
grant an equivalent Lien in favor of the Agent acting on behalf of the Banks,
and (iii) undertakes no later than two (2) Business Days before the Final Due
Date, to make a cash collateral deposit (gage-espces) in favor of the Banks on
the account identified by the Agent to it on the date concerned, in an amount
equal to the total amount of the Bridge Loan increased by a lump sum amount
intended to cover payment of interest equal to 1.25% of the total amount of the
Bridge Loan.
9. ACCELERATION
9.1 Event of Default
Any of the following events constitutes an Event of Default as soon as it
occurs, and regardless of the reason therefor:
9.1.1 Non-payment: Failure to pay when due any amount owed in principal,
interest, fees, expenses or incidental costs by the Borrower in performance of
the Agreement which is not cured within two (2) days following the date on which
said amount is due; this time period shall be reduced to zero for any payment
whose due date corresponds to a Final Due Date.
9.1.2 Inaccuracy of a Representation or Warranty: Any representation or
warranty of the Borrower proves to be incorrect or inaccurate, unless cured
(provided that it can be cured) within thirty (30) days following the date on
which the Borrower learned of the inaccuracy in question.
9.1.3 Breach of a Covenant: The Borrower fails to fulfill any of its
obligations or covenants (other than those set out in Articles 9.1.1 and 9.1.2)
under any of the Transaction Documents and/or the Guarantor breaches any of its
covenants set out in Article 8.5 or any of its obligations under the Guaranty
and said breach is not cured (provided that it can be cured) within thirty (30)
days following the occurrence thereof.
9.1.4 Cross Default: Any indebtedness of (i) the Borrower other than that
arising under the Agreement in an amount greater than FRF 50,000,000 (fifty
million francs), and/or (ii) of the Guarantor in an amount greater than FRF
150,000,000 (one hundred and fifty million francs), and/or (iii) of Berg
Electronics in an amount greater than FRF 50,000,000 (fifty million francs), is
not paid on the date specified for payment in the applicable agreement (or at
the end of any grace period).
9.1.5 Disputes: Any dispute which results in a judgment or decision ordering
or requiring the Borrower to make a payment of more than FRF 100,000,000 (one
hundred million francs), unless the obligation to pay said amount is assumed by
one of the Borrower's insurers.
9.1.6 Bankruptcy Proceedings - Going Out of Business: The Borrower (and/or
the Guarantor) goes out of business, voluntarily or otherwise, or is insolvent
within the meaning of the controlling case law, or declares that it is
insolvent, suspends payment on its debts or renegotiates them, assigns a
substantial portion of its assets to its creditors in payment of its debts,
files for bankruptcy, seeks the appointment of a receiver or conciliator, is
subject to a dissolution or voluntary or involuntary liquidation proceeding or a
proceeding involving the shut-down of its business, or the assignment of all or
part of the business, or any other similar measure.
9.1.7 Illegality, etc.: All or some part of the Agreement or the Guaranty no
longer constitutes a valid undertaking enforceable against the Borrower and/or
the Guarantor or all or some part thereof becomes illegal, unenforceable,
inapplicable, null, void, canceled or invalid, or as a general matter ceases to
have full force and effect.
9.1.8 Refinancing of Berg Electronics' Debt: The Borrower has not received,
by November 15, 1998 at the latest, either (i) confirmation by Berg Electronics'
banks that they agree to extend the existing credit facilities which they have
granted in favor of Berg Electronics to December 31, 1998 or (ii) an irrevocable
undertaking by one or more banks to refinance Berg Electronics existing credit
facilities on terms which are not financially less advantageous than those
applicable to Berg Electronics' current financing, with an undertaking not to
syndicate said indebtedness before December 31, 1998, unless the Guarantor has
granted a valid cash pledge in accordance with its covenant in Article 8.5.
9.1.9 Loss of Control: The percentage of Framatomes direct interest in the
Securities and voting rights comprising the capital stock of the Borrower falls
to 66.67% or less.
9.2 Effect of Acceleration
9.2.1 In the event of the occurrence of an Event of Default or any other
ground for termination of the Agreement, no further Drawdowns may be made for so
long as the Borrower (and/or the Guarantor) has/have not cured the default in
question (unless the Borrower (and/or the Guarantor) is/are granted a grace
period pursuant to the provisions of Article 9.1) or, if no grace period is
contemplated, until the Majority Banks, after having consulted with the Agent,
have ruled on whether it is appropriate to declare that the Bridge Loan has been
accelerated.
9.2.2 At the request of the Majority Banks following the occurrence of an
Event of Default or, where applicable, after the Agent has noted following the
expiration of the applicable grace period that the Borrower and/or the Guarantor
have not cured the Event of Default in question, the Agent shall advise the
Borrower by simple notice:
(a) that each Bank's commitment is terminated, effective immediately. Said
termination shall occur by operation of law, without any requirement of any
other prior notice or formal notice of any type whatsoever to the Borrower;
and
(b) that all sums advanced by the Banks in performance of the Agreement have
become immediately due and payable. As a result, all such sums, as well as
all interest accrued thereon and all such other amounts as may be owed
under the Agreement, and in particular those discussed in Article 13
("Expenses and Compensation"), shall become immediately due and payable by
operation of law without there being any requirement of any prior notice or
formal notice of any type whatsoever to the Borrower.
10. CHANGED CIRCUMSTANCES
10.1 New Circumstances
In the event that, following the date of execution of the Agreement, a new
statutory or regulatory provision, a new instruction, or a new guideline
(regardless of whether compliance therewith is mandatory) from an official
authority or banking institution, or any interpretation or application thereof,
or any interpretation or application of a statutory or regulatory provision,
instruction or guideline existing on the date of execution of the Agreement by
an official authority or banking institution, should have any of the following
consequences for one or more Banks (or for any institution which directly or
indirectly controls a Bank), provided that the appropriate documentation shall
have been provided to the Agent for purposes of notice to the Borrower:
(a) the Bank or Banks concerned (or any other institution which directly or
indirectly controls said Bank or Banks) is/are subject to a tax (with the
exception of corporate income tax) or any other duty, expense or cost on or
in connection with some principal amount or interest or any other debt
arising under the Agreement; or
(b) the terms of the tax to which the Bank or Banks concerned (or any other
institution which directly or indirectly controls said Bank or Banks) are
modified with respect to an amount in principal or interest or any other
debt arising under the Agreement (excluding corporate income tax); or
(c) obligations with respect to setting aside or maintaining reserves,
obligations regarding available funds, deposits, liquidity, net worth,
permanent equity, risk coverage or any other similar obligations relating
to all or some part of the assets or commitments (including off-balance
sheet commitments) of the Bank or Banks concerned (or of any other
establishment which directly or indirectly controls the said Bank or
Banks), are imposed, modified or declared to be applicable, or statutory
credit restrictions are imposed;
and, in the event that the Bank or Banks concerned (or any other establishment
which directly or indirectly controls said Bank or Banks) record a charge, a
cost or a reduction in its/their net return or a decrease in the total return on
its/their equity, the following provisions shall apply:
(A) the Bank or Banks concerned shall promptly notify the Borrower and the
Agent thereof in writing. The written notice shall contain the estimated
amount of the resulting increased cost, and the corresponding compensation.
As soon as possible, the Bank or Banks concerned shall provide the Agent
and the Borrower with all supporting documents;
(B) the Bank or Banks concerned shall endeavor to assign its/their rights and
obligations under the Agreement to another prime bank which is not at that
time affected by the occurrence of such events, it being understood that
said provision shall not in any way affect or limit the covenants and
obligations of the Borrower under the other provisions of the Agreement and
that neither the Bank or Banks concerned, nor the Agent or the Borrower
shall be obligated to accept any agreements which they deem prejudicial to
their interests;
(C) if such assignment proves impossible, the Borrower, the Agent and the Bank
or Banks concerned shall meet within the shortest possible time to work out
a solution that will enable them to overcome the problems that have arisen,
in the same spirit of cooperation in which they signed the Agreement;
(D) if no solution can be found within thirty (30) days following receipt of
the notice specified in subsection (A) above, the Borrower shall:
(i) either ask the Bank or Banks concerned to maintain its/their
commitment and its/their participation in the Bridge Loan, and the
Borrower shall then undertake, as from the date on which the Bank or
Banks concerned give it the notice specified in subsection (A) of this
article, to assume such additional cost as the said Bank or Banks (or
any other establishment which directly or indirectly controls the said
Bank or Banks) may be required to bear as a result thereof;
(ii) or terminate the Bridge Loan with respect to the Bank or Banks
concerned within seven (7) Business Days following the last day of
said thirty (30) day period, and the Borrower shall then be required,
on the date on which the Agreement is terminated, and with respect to
the Bank or Banks concerned, to prepay all amounts still owing in
principal and interest and to pay all interest accrued up to that date
and fees increased, where applicable, by the compensation provided for
in Article 12.3 ("Compensation for Breach") as well as any additional
cost which said Bank or Banks (or any other establishment which
directly or indirectly controls the said Bank or Banks) shall be
forced to incur as a result of the new circumstance in question, up to
the date of prepayment.
10.2 Illegality
The provisions of the first sentence of subsection (A) of Article 10.1 and the
provisions of subsections (B), (C) and (D)(ii) of Article 10.1 shall also apply
in the event that one or more Banks are subject to any measure which has the
effect of making it unlawful for them to maintain its/their Commitment or
its/their participation in the Bridge Loan.
10.3 Market Disruption
Notwithstanding any provision to the contrary in the Agreement, in the event
that, on a date on which the Reference Rate must be computed for a Drawdown, and
as a result of events affecting the interbank market:
(a) the Agent, following consultation with the Reference Banks, determines
(which determination shall be final and binding on the parties), that it is
impossible to compute the Reference Rate for that Drawdown, or
(b) the Agent receives one or more notices from one or more Banks accounting
for more than 35% of all of the Banks' Commitments that they are unable to
secure deposits denominated in French francs on the Paris interbank market
for the amount and term desired to finance a Drawdown, or that their cost
of obtaining said deposits is greater than the applicable Reference Rate,
the Agent shall promptly notify the Borrower and each of the Banks thereof, and
the following provisions shall then apply:
(A) the Drawdown concern shall not occur and the Bank shall be relieved of
their obligation to participate in any new Drawdowns and shall continue to
be relieved of said obligation for so long as the consultation provided for
in subsection (B) below has not resulted in agreement, or for so long as
the circumstances described in subsection (a) and (b) above continue to
exist;
(B) the Borrower, the Agent and the Bank shall consult with one another for a
period of five (5) Business Days following the notice referred to above, in
a good faith effort to find a mutually satisfactory replacement reference
rate for the Drawdown concerned;
(C) if, during this period of five (5) Business Days, the Borrower and the
Banks agree in writing on a new method for computing the replacement
reference rate, said method shall apply as agreed by the parties, it being
understood that the adoption of any replacement rate requires the unanimous
consent of the Banks;
(D) if the Borrower and the Banks do not succeed in developing a new
computation method within the allowed period of five (5) Business Days, the
Agent shall provide the Borrower (by means of a notice which shall be final
and, absent palpable error, binding on the parties) with a computation
method which the Banks shall use to compute the interest owed for the
current Interest Period or Periods. This computation method shall reflect
the cost incurred by the Banks, i.e., the refinancing of the Drawdowns
concerned, any other sum owed under the Bridge Loan, and the Commitment of
each Bank, obtained from various sources of financing, including those with
different financing periods, increased by the applicable Margin, and shall
be retroactive to the beginning of the Interest Period or Periods
concerned;
(E) notwithstanding the provisions of Article (D) above, the Borrower may at
any time, following computation by the Agent and the Banks of the
applicable replacement reference rates, and provided that said rate or
rates continue(s) to apply, (irrevocably) notify the Agent within no fewer
than five (5) Business Days that it intends to prepay all such amounts as
may be owed with respect to the outstanding Drawdowns, and to pay all such
amounts as may be owed under the Bridge Loan.
11. COMMITMENT FEE
Between the date of execution of the Agreement and the Final Due Date, the
Borrower undertakes to pay the Agent, for the benefit of the Banks, a commitment
fee computed at an annual rate of 0.075% on that portion of the Aggregate
Commitment which is not used, and on the basis of the exact number of days
elapsed, based on a three hundred and sixty (360) day year. This fee shall be
payable on the Final Due Date. It shall be allocated among the Banks pro rata
their Commitments.
12. EXPENSES AND COMPENSATION
12.1 Stamp Duties
Upon presentation by the Agent (acting for its own account and on behalf of the
Banks) of appropriate supporting documents, the Borrower shall pay all stamp
taxes and registration fees, and all taxes or similar costs owed in connection
with the execution or performance of the Agreement, the Guarantee or any other
instrument, document or security interest relating thereto.
12.2 Compensation for Failure to Make a Drawdown
If, for any reason other than fault on the part of the Agent or the Banks, a
Drawdown is not made on the scheduled date, or the scheduled amount is not drawn
down, at the request of the Agent the Borrower shall compensate the Agent and
each Bank, and shall pay the Agent for the benefit of the Banks, upon
presentation by the Agent of the appropriate supporting documents, any amounts
which the Banks certify are needed to compensate them for any losses or costs
which they may have incurred as a result, including but not limited to any lost
profits as measured against the Margin and any loss or cost incurred by any of
the Banks in liquidating or relending the deposits acquired by it to finance the
Drawdown concerned.
12.3 Compensation for Breach
If all or some part of a Drawdown is repaid on a date other than the Interest
Payment Date corresponding to the due date for said Drawdown, the Borrower shall
compensate the Agent and each Bank and shall pay the Agent for the benefit of
the Banks, upon presentation by the Agent of appropriate supporting documents,
all such amounts as the Banks certify to the Agent (no later than two (2)
Business Days following the repayment date) are necessary to compensate them for
any losses and costs which they may incur as a result of said repayment,
including but not limited to any lost profit as measured against the Margin or
any loss or cost incurred by the Banks to liquidate or relend such deposits as
they have acquired to finance the Drawdown concerned, and in particular, in the
case of prepayment of all or some part of a Drawdown for any reason whatsoever,
including but not limited to in the cases described in Articles 9 ("Events of
Default") and 10 ("Changed Circumstances").
12.4 Other Expenses and Compensation
Without prejudice to the other provisions of the Agreement, the Borrower shall
compensate the Agent and each Bank, upon presentation by the Agent, acting on
its own behalf and on behalf of the Banks, of the appropriate supporting
documents, for all such sums, including interest and reasonable expenses
(including but not limited to court costs, attorneys fees and costs and the
taxes relating thereto) and all such costs (including the cost of reinvesting
the funds) and losses as each of them may incur:
(a) as a result of non-performance (regardless of the reason therefor), by the
Borrower, through its own fault, of any of the provisions of the Agreement,
and in particular, failure by the Borrower to pay when due any sum
whatsoever due and payable hereunder, non-performance of any of the
provisions of the Guarantee or of any other instrument, document or
security interest relating thereto whatsoever;
(b) as a result of the occurrence of an Event of Default;
(c) for the protection and exercise of the rights of the Agent and of the Banks
arising under the Agreement and the Guarantee.
13. BENEFIT OF THE AGREEMENT
13.1 Successors-in-Interest and Assigns
The Agreement shall be binding on the Borrower, the Banks, the Co-Arrangers and
the Agent and on their successors-in-interest and assigns and shall inure to the
benefit of each of them.
13.2 No Assignment by the Borrower
The Borrower shall not assign or otherwise transfer its rights and obligations
under the Agreement.
13.3 Accounting Address
Each of the Banks may notify the Borrower of a new address at which the
accounting transactions with regard to its participation in the Agreement shall
be recorded.
14. THE CO-ARRANGERS AND THE AGENT
14.1 Appointment
Each of the Banks irrevocably appoints the Agent as its agent to act on its
behalf within the framework of the Agreement and the Guarantee, respectively,
and to take all steps and exercise all rights, powers and discretionary
authority expressly granted or assigned to it under the terms of the Agreement
and the Guarantee, respectively, as well as those which are the result thereof.
Each of the Banks irrevocably appoints the Agent as its agent, and the Agent
accepts, to represent it in and on all acts and instruments, notices and
formalities (with the exception of legal proceedings, either as plaintiff or
defendant) in connection with its dealings with the Borrower within the
framework of the Agreement and the Guarantee respectively.
The Agent shall only have those obligations, powers and duties, and that
discretionary authority which is expressly specified in the Agreement and the
Guarantee, respectively. These are solely of a technical and administrative
nature.
14.2 Instructions
In all cases which are not expressly provided for in the Agreement and the
Guarantee, and in the exercise of its rights and powers which provide for
instructions from the Banks, the Agent shall act (or shall refrain from acting)
in accordance with the instructions from the Majority Banks or unanimous
instructions from them (where unanimity is required by the provisions of the
Agreement and the Guarantee). In the absence of instructions from the Banks, the
Agent may act (or refrain from acting) in such manner as it deems most
consistent with the interests of all of the Banks.
14.3 Guarantee
The Guarantee shall be issued in favor of the Banks represented by the Agent,
which shall provide follow-up and handle implementation thereof on behalf of the
Banks, which appoint the Agent their agent for that purpose.
In the performance of its duties as described above, the Agent shall act upon
the instructions of the Majority Banks, subject to the provisions of Article 15
("Amendments").
The proceeds of any implementation of the Guarantee shall be collected by the
Agent, which shall record them on behalf of the Banks in accounts specifically
opened for that purpose on its books. The proceeds of any implementation of the
Guarantee shall be allocated among the Banks by the Agent pro rata their
respective Commitments.
14.4 Liability of the Agent Toward the Banks
No attempt shall be made to establish liability on the part of the Agent for
action (or inaction) at the request of the Majority Banks and, unless otherwise
provided in the Agreement or the Guarantee, any action (or inaction) in response
to any such request shall be binding on all the Banks.
Neither the Co-Arrangers, the Agent nor any of their directors, officers or
employees shall under any circumstances be liable for the proper performance,
validity, enforceability or contents of the Agreement, the Guarantee or any
other instrument or document relating thereto.
Neither the Co-Arrangers, nor the Agent shall be liable toward the Banks for the
accuracy of the representations made in the Agreement, the Guarantee or any
other instrument or document relating thereto, nor for proper performance of the
provisions of those instruments by the Borrower and the other parties to those
instruments. Neither the Co-Arrangers nor the Agent shall be liable to the
Borrower for any breach by the Banks in the performance of their obligations
under the Agreement or the Guarantee.
The Agent is entitled to rely on any document which it believes to be authentic
or signed by the person or persons authorized to do so and any communication
which it believes to have been made by an authorized person and, with respect to
legal issues, it is entitled to rely on the advice of its counsel. The Agent
shall not be required to conduct any inspection or verification to ensure that
the documents submitted to it within the framework of the Agreement and the
Guarantee are accurate or authentic.
14.5 Communications
The Agent shall promptly communicate to the Banks all notices (other than purely
administrative notices) received by it from the Borrower in its capacity as
Agent, in performance, respectively, of the Agreement, the Guarantee or any
other instrument or document relating thereto.
14.6 Compensation
In the event that the Borrower fails to fulfill any of its obligations under the
Agreement (or that the Guarantor fails to fulfill any of its obligations under
the Guarantee), each of the Banks undertakes to compensate the Agent, pro rata
its respective Commitment, for any and all losses, costs, expenses or other
expenditures made or incurred by it as a result of said breach, provided,
however, that this shall not relieve the Borrower of its obligations.
14.7 Rights
The Agent, in its capacity as a Bank, has the same rights and powers under the
Agreement as any other Bank and may exercise those rights and powers in the same
manner as if it were not acting as Agent.
The Agent, the Co-Arrangers and each Bank may accept deposits, lend money and as
a general matter transact any banking business, any consulting business, any
investment business or any other commercial activity whatsoever with the
Borrower and may accept and retain any fee or other compensation paid to them
for their own benefit for such other business or in connection with the
Agreement.
Any information obtained by the Agent other than in its capacity as Agent may be
kept confidential by the Agent, depending on the circumstances, and shall not be
deemed to constitute information held by the Agent in that capacity.
14.8 Representations of the Banks
Each Bank represents:
(a) that its decision to participate in the Agreement was based on its own
judgment;
(b) that, using its own resources, it has independently conducted its own
credit analysis and assessment of the financial position, business and
solvency of the Borrower, and of the financing arrangements;
(c) that, using its own resources, it shall in future independently continue to
make its own credit analyses and to monitor changes in the financial
position, business and solvency of the Borrower, and in the financing
arrangements;
and that neither the Co-Arrangers nor the Agent may be held liable for
information forwarded to the Banks through them.
14.9 Agent's Successor
The Agent may resign at any time from its duties under the Agreement subject to
no fewer than thirty (30) days' prior notice to the Borrower and the Banks. The
Majority Banks may at any time terminate its appointment as Agent subject to no
fewer that thirty (30) days' prior notice to the Agent, the Borrower and the
Banks.
In agreement with the Borrower, the Majority Banks, not including the Agent, may
designate a bank or other financial institution to replace the Agent if the
Agent resigns or is removed, provided that this is done within twenty (20) days
following the date of the notice. In the event of failure to designate a
successor within that time period, the Agent shall itself designate its own
successor, by selecting a prime bank or other financial institution with a
financially sound reputation, and which has an office in Paris.
The resignation or removal of the Agent shall not be effective, and the Agent
shall continue to perform its duties until it has received written acceptance
from its designated successor.
15. AMENDMENTS
15.1 The Majority Banks may agree with the Borrower on any amendment to or
modification of the Agreement, or on any temporary or final waiver of the right
to enforce any provision of the Agreement, it being understood, however, that no
amendment, modification or waiver concerning:
- - the term of the Bridge Loan or of the Drawdowns,
- - any increase in the Aggregate Commitment,
- - the definition of the interest rate, the Margin and the non-use of credit
fee,
- - the date and amount of payments owed with respect to any Drawdown or the
non-use of credit fee,
- - withdrawal of the Guarantee,
- - the definition of Majority Banks,
- - a provision of the Agreement which requires the consent of each Bank, and
- - this Article 15.1,
may by made without the unanimous consent of the Banks.
15.2 Notwithstanding any provision to the contrary, no modification to the
rights or obligations of the Agent may be made without its express consent.
16. EQUALIZATION OF PAYMENTS
16.1 If a Bank should receive a payment under the Agreement, in any manner
whatsoever, regardless of whether this is through the Agent, as a result of a
direct payment, a set-off, a consolidation of accounts or for any other reason,
and if said payment proves to be greater than the payment that it should have
received under the allocation rules set out in the Agreement, it shall promptly
advise the Agent thereof and the Agent shall promptly determine what portion of
the said payment should be paid to each of the Banks under the Agreement, and
shall so inform the Banks.
The Bank receiving said payment shall then promptly pay the excess over to the
Agent so that the Agent can redistribute their shares to the other Banks such
that each Bank receives its proportionate share of the said payment.
In dealings between the Bank receiving payment and the Borrower, the surplus
paid over to the Agent shall be deemed not to have been paid to the said Bank.
16.2 Notwithstanding any provision to the contrary, a Bank receiving a
payment shall not be required:
(a) to share any payment which it receives if, following payment over of the
excess, it no longer has a valid claim against the Borrower in an amount
equal to the excess paid over to the Agent or
(b) to share any payment with the other Banks which it receives if the payment
is made as a result of, or within the framework of, litigation, when the
other Banks had an opportunity to join in said proceeding, and did not do
so, or did not initiate a separate proceeding.
16.3 If, thereafter, as a result of a court judgment or the provisions of the
law or any applicable regulation, the Bank receiving said payment is required to
repay or pay over the payment so received to the Borrower, each Bank which
received a portion of the excess in accordance with the foregoing provisions
undertakes to promptly pay over to the receiving Bank upon request and through
the Agent, the amount so received increased, where applicable, by any interest
at a rate sufficient to enable the receiving Bank to itself pay such interest as
it may be required to pay in connection with the said payment.
17. NOTICES
17.1 Any and all notices, requests or communications which may or must be
made in performance of the Agreement shall, unless otherwise provided in the
Agreement, be made in writing and sent by certified letter, return receipt
requested, or by facsimile. Notices shall be deemed effective upon receipt at
the addresses or facsimile numbers set out below, it being understood, however,
that in the event that a notice is received on a date which is not a business
day at the place of receipt, or after 6:00 p.m. at said place, the notice shall
be deemed to have been given at the start of business on the next business day,
at the place of receipt of the said notice.
17.2 Any notice, request or communication to be made and/or any document to
be delivered by a party to another party in performance of the Agreement shall
be made or delivered:
to the Borrower:
Attention: Eric d'Amarzit
Tel: 01 47 96 52 02
Fax: 01 47 96 51 11
to the Guarantor:
Attention: Gilbert Vidal
Tel: 01 47 96 28 83
Fax: 01 47 96 14 42
to the Agent:
Attention: Bernard Badon (Back Office AGEI - Trinome D)
Tel: 01 40 70 28 19
Fax: 01 40 70 71 50
to a Bank :
Attention: the Agent.
With copy to : Bayerische Landesbank Girozentrale (Paris Branch)
Attention: Emmanuel Ballande
Tel: 01 44 21 14 47
Fax: 01 44 21 14 95
18. EFFECTIVE GLOBAL RATE
In order to comply with the obligations imposed by Article L.313-2 of the
Consumer Code (Code de la consommation), the effective global rate of the Bridge
Loan has been computed using the actuarial method based on a proportionate
annual rate and is equal to 3,5804%. The calculation of the Rate is based on the
assumption that the first Drawdown will be equal to the Aggregate Commitment as
of the date of execution of the Agreement, and on a Reference Rate of PIBOR 3
months on the 28 September 1998 equal to 3,53125% applicable to a single
Interest Period commencing on the 12 October 1998 and ending on the Final Due
Date.
For the future, the parties expressly acknowledge that, as a result of the
special features of the Agreement, and in particular as a result of the use of a
variable rate and the opportunity available to the Borrower to choose the length
of the Interest Periods, that as of the date of execution of the Agreement, it
is impossible to compute the effective global rate of the Bridge Loan.
However, the Borrower acknowledges that it has personally made all evaluations
which it deems necessary to identify the global cost of the Bridge Loan and
acknowledges that it has received all necessary information from the
Co-Arrangers.
19. SET-OFF
At any time following acceleration as described in Article 9.2 ("Acceleration"),
any bank may, without receiving the consent of or giving notice to the Borrower,
set off such outstanding amounts as it may be owed by the Borrower against such
sums as it may hold on any basis whatsoever on behalf of the Borrower, or such
amounts as it owes to the Borrower and which are considered due and payable at
that time. If those amounts are denominated in different currencies, the Bank
concerned may convert one or more of them at the market exchange rate in
accordance with its standard practice for purposes of set-offs. In addition,
payment of the amounts owed by the Borrower under the Agreement shall be made
net of all present or future taxes, duties or withholding.
20. EXERCISE OF RIGHTS
20.1 All rights granted to the Co-Arrangers, the Agent and the Banks under
the Agreement or by any other document delivered in performance of or in
connection with the Agreement, as well as their rights arising under the law,
are cumulative and may be exercised at any time.
20.2 The partial or late exercise by the Co-Arrangers, the Agent or any Bank
of any right or the failure by them to exercise any right shall not constitute a
waiver of said right and shall not prevent the Co-Arrangers, the Agent or any
Bank as the case may be, from again exercising that right in the future, or from
exercising any other right.
21. GOVERNING LAW - JURISDICTION
21.1 The validity, construction and performance of this Agreement are
governed by French law.
21.2 The Borrower irrevocably agrees that any dispute concerning the
validity, construction or performance of the Agreement shall be referred to the
Paris Commercial Court (Tribunal de Commerce de Paris) without prejudice to the
right of the Banks or of the Agent to file a complaint with the courts of the
jurisdiction in which the Borrower's assets are located.
Executed in Paris,
Date 30 September 1998
In as many counterparts as there are parties.
THE BORROWER:
- ------------
FRAMATOME CONNECTORS INTERNATIONAL
By: /s/ Philippe Anglaret
----------------------------
Philippe Anglaret
THE GUARANTOR:
- -------------
FRAMATOME
By: /s/ Dominique Vignon
----------------------------
Dominique Vignon
THE CO-ARRANGERS:
- ----------------
CCF
By: /s/ Bertrand Grunenwald
----------------------------
Bertrand Grunenwald
By: /s/ Bernard Boue
----------------------------
Bernard Boue
BLB
By: /s/ Jean-Louis Gleize
----------------------------
Jean-Louis Gleize
By: /s/ Jean-Michel Pezard
----------------------------
Jean-Michel Pezard
THE AGENT:
- ---------
CCF
By: /s/ Bertrand Grunenwald
----------------------------
Bertrand Grunenwald
By: /s/ Bernard Boue
----------------------------
Bernard Boue
THE BANKS:
- ---------
CCF
By: /s/ Bertrand Grunenwald
----------------------------
Bertrand Grunenwald
By: /s/ Bernard Boue
----------------------------
Bernard Boue
BLB
By: /s/ Jean-Louis Gleize
----------------------------
Jean-Louis Gleize
By: /s/ Jean-Michel Pezard
----------------------------
Jean-Michel Pezard
SCHEDULE 1
LIST OF BANKS AND BANK COMMITMENTS
BANK LENDING INSTITUTION Commitments
- ---- ------------------- ---------------------------
(in francs) (in %)
----------------- ------
CCF 103 Avenue des Champs-Elysees FRF 3,000,000,000 50 %
75008 Paris (France)
BLB Paris Branch FRF 3,000,000,000 50 %
203 Rue du Faubourg Saint-
Honore 75008 Paris
SCHEDULE 2
Form of Drawdown Notice
From: Framatome Connectors International
in its capacity as Borrower
To: Credit Commercial de France
in its capacity as Agent
Attention: [ ]
Date: [ ]
Re: Bridge Loan Agreement for FRF 6,000,000,000
dated September 30, 1998 (the "Agreement")
--------------------------------------------------------------
This Drawdown Notice is being sent to you pursuant to the provisions of Article
2 of the Agreement.
Defined terms in the Agreement shall have the same meanings in this Drawdown
Notice.
We hereby advise you that we wish to make a Drawdown in accordance with the
provisions of the Contract on the following terms:
Amount of Drawdown: FRF _______________________
Drawdown Date: October [ ], 1998
Interest Period: from [date] inclusive to [date].
Please credit the amount of this Drawdown to the following account: [ ]
We hereby confirm that no Event of Default has occurred and that the
representations and warranties set out in Article 7 of the Agreement continue to
be accurate, and we are enclosing all supporting documents that were used to
compute the amount of the Drawdown in accordance with the provisions of Article
2.2 ("Procedures for Use") of the Agreement, including, solely with respect to
the first Drawdown, all of the documents to be delivered as required by the
conditions precedent to the first Drawdown referred to in the Schedules to the
Agreement.
THE BORROWER:
- ------------
Framatome Connectors International
By: [ ]
SCHEDULE 3
Form of Period Renewal Notice
From: Framatome Connectors International
in its capacity as Borrower
To: Credit Commercial de France
in its capacity as Agent
Attention: [ ]
Date: [ ]
Re: Bridge Loan Agreement for FRF 6,000,000,000
dated September 30, 1998 (the Agreement)
--------------------------------------------
This Period Renewal Notice is being sent to you pursuant to the provisions of
Article 4.1.2 of the Agreement.
Defined terms in the Agreement shall have the same meanings in this Period
Renewal Notice.
We hereby advise you that we wish to renew a Drawdown in accordance with the
provisions of the Agreement on the following terms:
Amount and Date of Drawdown to be Renewed: FRF _______________
Date: ____[ ], 1998
Interest Period: from [date] inclusive to [date] inclusive
We hereby confirm that no Event of Default has occurred and that the
representations and warranties set out in Article 7 of the Agreement are still
accurate.
THE BORROWER:
- ------------
Framatome Connectors International
By: [ ]
SCHEDULE 4
Form Guaranty
[on Framatome letterhead]
Credit Commercial de France
103 Avenue des Champs-Elysees
75008 Paris (France)
in its capacity as agent under the
bridge loan agreement defined below
Attention: Messrs. [ ]
INDEPENDENT, IRREVOCABLE, FIRST DEMAND GUARANTY
Gentlemen:
We the undersigned, Messrs. ____________________, the authorized representatives
of Framatome, which is acting in its capacity as Guarantor to the principal
debtor to the Banks which are parties to the bridge loan agreement dated
September 30, 1998 ("Agreement") by and between Framatome Connectors
International, in its capacity as Borrower and Framatome in its capacity as
Guarantor, parties of the first part, and the Agent and the Banks, parties of
the second part, hereby irrevocably commit Framatome under this Guaranty to pay
the Agent, for the account of the Banks, upon first request by the Agent, which
shall be made in the form of one or more notices (each referred to as a
"Notice") sent by the Agent to the Guarantor by facsimile in the form of the
specimen attached as Schedule A, without there being any need for any other
formalities, such amount as shall be specified by the Agent in any Notice.
The Guarantor's undertaking to pay, which is provided hereunder:
(a) is limited to a total maximum amount of FRF 6,075,000,000 (six
billion seventy-five million francs), which the Agent shall
specify to the Guarantor after having requested payment by the
Borrower under the Agreement, said Notice to be authoritative
as to the amounts to be paid under this Guaranty;
(b) shall remain valid and shall be enforceable against the Guarantor
independent of the validity and legal effect of the Agreement. The
Guarantor hereby waives any defense or objection whatsoever based
on present or future relations between the Agent, the Banks and the
Borrower, and shall not advance any argument based on any event
whatsoever affecting its form or existence, or those of the
Borrower, the Agent and/or the Banks;
(c) is and shall remain valid and unconditional until December 31,
1998, and shall automatically lapse on that date. After that date,
no Notice shall have any effect as against the Guarantor, even if
payment by the Guarantor of any amount owed under this Guaranty may
be made after said date where the Guarantor has received a Notice
before said date.
The Guarantor shall not hold back any amount on any payment under the Guaranty
and shall not make any set-off against any sum whatsoever that it may otherwise
may be owed. In addition, if any law whatsoever requires the Guarantor to make
any withholding or set-off whatsoever in connection with a payment made under
this Guaranty, we hereby commit the Guarantor to pay the Agent for the account
of the Banks, in addition to the amount of said payment, a supplementary sum
sufficient to cover the difference between the amount of said payment and the
amount actually received by the Agent for the account of the Banks, such that
the Banks are put in a position equivalent to that in which they would have been
if the said payment had been made without any withholding.
Any payment made by the Guarantor under this Guaranty shall reduce the amounts
of the Guarantor's commitments by the amount of the said payment, it being
understood, however, that the Guarantor hereby waives all its rights of
subrogation to the rights of the Banks with respect to any and all payments made
pursuant to this Guaranty and hereby agrees not to take any action whatsoever
that would allow it to compete with the rights of the Agent and the Banks
against the Borrower for so long as this Guaranty remains in force and any
amount owed by the Guarantor under this Guaranty has not been finally paid in
full in accordance with the terms hereof.
An abstract of the minutes of the meeting of the board of directors of the
Guarantor authorizing the provision of this Guaranty is appended hereto.
This Guaranty is governed by French law. Any dispute that may arise in
connection with this Guaranty shall be subject to the exclusive jurisdiction of
the courts for the district of the Paris Court of Appeals.
Sincerely yours,
Executed in Paris
Date:[ ], 1998
In one original copy
THE GUARANTOR:
- --------------
Framatome
By: [ ]
By: [ ]
SCHEDULE A
Form of Notice
From: [Credit Commercial de France]
in its capacity as Agent
To: Framatome
in its capacity as Guarantor
Attention: [ ]
Date/Time: [ ]
Re: Guaranty dated [ ], 1998, provided
within the framework of the Bridge Loan
Agreement for FRF 6,000,000,000 dated September
30, 1998 (the "Agreement")
-------------------------------------------------------------
Gentlemen:
This Notice is being sent to you pursuant to the provisions of the
above-referenced Guaranty (the "Guaranty"). Defined terms in the Guaranty shall
have the same meanings in this Notice.
We are asking that you pay the following total amount under the Guaranty:
FRF ________________________
in immediately available funds, for value [ ] by transfer to our account opened
in your books, with the following details:
----------------------------
The funds corresponding to the above payment must reach our account no later
than [ ] at [ ] am/pm.
We confirm that the above amount has been asked from the Borrower in accordance
with the provisions of the Guarantee
Sincerely yours,
THE AGENT:
- ----------
Credit Commercial de France
By: [ ]
SCHEDULE 5
List of Conditions Precedent Concerning Documents
All of the documents listed below must be delivered to the Agent no later than
the date of the Drawdown Notice sent by the Borrower to the Agent for the first
Drawdown in accordance with the provisions of Article 3.1.1 of the Agreement:
(a) a copy, certified as a true copy by the legal representative of the company
concerned, of its current articles of incorporation and by-laws (statuts)
and a company registration form (extrait K-Bis) for the Borrower and the
Guarantor less than three months old, and the equivalent documents under US
law for Berg Electronics;
(b) a list of the representatives (including signature specimens) indicating
their office and/or position, who are authorized to act on behalf of the
Borrower and the Guarantor with respect to the Finance Documents, and in
particular to sign Drawdown Notices and any other notices which must or may
be given in connection with the Finance Documents;
(c) a copy, certified as a true copy by the authorized legal representative, of
the minutes of the meeting or meetings of the board of directors of the
Borrower authorizing (i) the filing of the Tender Offer and the carrying
out of the Acquisition, as well as the conduct of all of the transactions
specified in the Offering Documents, and (ii) the execution of the
Transaction Documents to which the Borrower is a party;
(d) a copy, certified as a true copy by the legally authorized representative,
of the minutes of the meeting or meetings of the board of directors of the
Guarantor (i) approving the filing of the Tender Offer, the carrying out of
the Acquisition and the financing granted under the Agreement, and (ii)
authorizing the execution of the Transaction Documents to which the
Guarantor is a party;
(e) a copy, certified as a true copy by the legally authorized representative,
of the Offering Documents and the Depositary Letter and Letter of
Acceptance, with proof that they have been sent to the Depositary;
(f) the subscription forms for the Borrower's capital increase approved on
April 24, 1998, in an amount of 300 million francs, half of which was paid
up in two equal installments, and the accounting documents relating to such
installments, as well as (i) the minutes of the Borrower's board of
directors of September 25, 1998 which resolved a capital increase for the
Borrower in an amount of 3 billion francs, of which 2.850 billion francs
was to be paid up on the date on which the funds were made available for
the first Drawdown, and (ii) the minutes of the Borrower's shareholders
meeting which approved such increase;
(g) an original copy of the legal opinion prepared by the Borrower's in-house
counsel concerning the existence and capacity of the Borrower, as well as
the corporate authorizations concerning the Borrower and the Capital
Increase;
(h) an original copy of the legal opinion prepared by the Guarantor's in-house
counsel concerning the existence and capacity of the Guarantor, as well as
the corporate authorizations concerning the Guarantor.
EXHIBIT 99.b(4)
[Framatome letterhead]
Credit Commercial de France
103 Avenue des Champs-Elysees
75008 Paris (France)
in its capacity as agent under the
bridge loan agreement defined below
INDEPENDENT, IRREVOCABLE, FIRST DEMAND GUARANTY
Gentlemen:
We the undersigned, Dominique Vignon, President-directeur general and
authorized representative of Framatome, which is acting in its capacity as
Guarantor to the principal debtor to the Banks which are parties to the bridge
loan agreement dated September 30, 1998 ("Agreement") by and between Framatome
Connectors International, in its capacity as Borrower and Framatome in its
capacity as Guarantor, parties of the first part, and the Agent and the Banks,
parties of the second part, hereby irrevocably commit Framatome under this
Guaranty to pay the Agent, for the account of the Banks, upon first request by
the Agent, which shall be made in the form of one or more notices (each referred
to as a "Notice") sent by the Agent to the Guarantor by facsimile in the form of
the specimen attached as Schedule A, without there being any need for any other
formalities, such amount as shall be specified by the Agent in any Notice.
The Guarantor's undertaking to pay, which is provided hereunder:
(a) is limited to a total maximum amount of FRF 6,075,000,000, which
the Agent shall specify to the Guarantor after having requested
payment by the Borrower under the Agreement, said Notice to be
authoritative as to the amounts to be paid under this Guaranty;
(b) shall remain valid and shall be enforceable against the Guarantor
independent of the validity and legal effect of the Agreement. The
Guarantor hereby waives any defense or objection whatsoever based
on present or future relations between the Agent, the Banks and the
Borrower, and shall not advance any argument based on any event
whatsoever affecting its form or existence, or those of the
Borrower, the Agent and/or the Banks;
(c) is and shall remain valid and unconditional until December 31,
1998, and shall automatically lapse on that date. After that date,
no Notice shall have any effect as against the Guarantor, even if
payment by the Guarantor of any amount owed under this Guaranty may
be made after said date where the Guarantor has received a Notice
before said date.
The Guarantor shall not hold back any amount on any payment under the Guaranty
and shall not make any set-off against any sum whatsoever that it may otherwise
may be owed. In addition, if any law whatsoever requires the Guarantor to make
any withholding or set-off whatsoever in connection with a payment made under
this Guaranty, we hereby commit the Guarantor to pay the Agent for the account
of the Banks, in addition to the amount of said payment, a supplementary sum
sufficient to cover the difference between the amount of said payment and the
amount actually received by the Agent for the account of the Banks, such that
the Banks are put in a position equivalent to that in which they would have been
if the said payment had been made without any withholding.
Any payment made by the Guarantor under this Guaranty shall reduce the amounts
of the Guarantor's commitments by the amount of the said payment, it being
understood, however, that the Guarantor hereby waives all its rights of
subrogation to the rights of the Banks with respect to any and all payments made
pursuant to this Guaranty and hereby agrees not to take any action whatsoever
that would allow it to compete with the rights of the Agent and the Banks
against the Borrower for so long as this Guaranty remains in force and any
amount owed by the Guarantor under this Guaranty has not been finally paid in
full in accordance with the terms hereof.
An abstract of the minutes of the meeting of the board of directors of the
Guarantor authorizing the provision of this Guaranty is appended hereto.
This Guaranty is governed by French law. Any dispute that may arise in
connection with this Guaranty shall be subject to the exclusive jurisdiction of
the courts for the district of the Paris Court of Appeals.
Executed in Paris
September 30, 1998
In one original copy
THE GUARANTOR:
- --------------
Framatome
By: Dominique Vignon
President-directeur general
SCHEDULE A
Form of Notice
From: [Credit Commercial de France]
in its capacity as Agent
To: Framatome
in its capacity as Guarantor
Attention: [ ]
Date/Time: [ ]
Re: Guaranty dated [ ], 1998, provided
within the framework of the Bridge Loan
Agreement for FRF 6,000,000,000 dated September
30, 1998 (the "Agreement")
-------------------------------------------------------------
Gentlemen:
This Notice is being sent to you pursuant to the provisions of the
above-referenced Guaranty (the "Guaranty"). Defined terms in the Guaranty shall
have the same meanings in this Notice.
We are asking that you pay the following total amount under the Guaranty:
FRF ________________________
in immediately available funds, for value [ ] by transfer to our account opened
in your books, with the following details:
----------------------------
The funds corresponding to the above payment must reach our account no later
than [ ] at [ ] am/pm.
We confirm that the above amount has been asked from the Borrower in accordance
with the provisions of the Guarantee
Sincerely yours,
THE AGENT:
- ----------
Credit Commercial de France
By: [ ]
