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Alstom – ‘20-F’ for 3/31/03 – EX-4.18

On:  Wednesday, 10/15/03, at 10:20pm ET   ·   As of:  10/16/03   ·   For:  3/31/03   ·   Accession #:  1193125-3-62461   ·   File #:  1-14836

Previous ‘20-F’:  ‘20-F’ on 5/24/02 for 3/31/02   ·   Next & Latest:  ‘20-F’ on 6/17/04 for 3/31/04

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

10/16/03  Alstom                            20-F        3/31/03   18:71M                                    RR Donnelley/FA

Document/Exhibit                   Description                      Pages   Size 

 1: 20-F        Alstom Annual Report on Form 20-F                   HTML   3.31M 
 2: EX-1        Bylaws (Statuts), as Amended, of the Company        HTML     67K 
                          (Unofficial English Translation)                       
 8: EX-4.10     Amended and Restated Eur 976,300,000 Multicurrency  HTML    636K 
                          Revolving Credit Agreement                             
 9: EX-4.11     Terms of Offer Relating to the Sale of Alstom's     HTML   6.31M 
                          Small Gas Turbines Business                            
10: EX-4.12     Agreement Re Sale and Purchase of Alstom's          HTML   1.87M 
                          Industrial Gas Turbines Business                       
11: EX-4.13     Financing Package Agreement Dated 2 August 2003     HTML     29K 
12: EX-4.14     Amendment to the Financing Package Agreement Dated  HTML     66K 
                          20 September 2003                                      
13: EX-4.15     Share Purchase Agreement With Respect to the Sale   HTML  44.48M 
                          of the T&D Sector                                      
14: EX-4.16     Eur 3,500,000,000 Bonding Guarantee Facility        HTML   1.15M 
                          Agreement Dated 29 August 2003                         
15: EX-4.17     Deed of Amendment No.1 Re Eur 3,500,000,000         HTML    203K 
                          Bonding Guarantee Facility Agreement                   
16: EX-4.18     Subordinated Debt Facility Agreement Dated 30       HTML    629K 
                          September 2003                                         
 3: EX-4.5      Eur 600,000,000 Revolving Credit Facility           HTML    895K 
                          Agreement Dated 25 March, 2003                         
 4: EX-4.6      Amended and Restated Eur 400,000,000 Revolving      HTML    641K 
                          Credit Facility Agreement                              
 5: EX-4.7      Eur 50,000,000 Amended and Restated Revolving       HTML    420K 
                          Credit Agreement, 25 March 2003                        
 6: EX-4.8      Eur 25,000,000 Amended and Restated Credit          HTML    434K 
                          Agreement, 25 March 2003                               
 7: EX-4.9      Amended and Restated Eur 1,250,000,000              HTML    625K 
                          Multicurrency Credit Agreement                         
17: EX-12.1     Certifications of CEO and CFO                       HTML     26K 
18: EX-13.1     Certifications of CEO and CFO                       HTML     15K 

EXHIBIT 4.18

Dated 30 September 2003

ALSTOM

as Borrower

BNP PARIBAS

CREDIT AGRICOLE INDOSUEZ

CREDIT LYONNAIS

SOCIETE GENERALE

and

CAISSE FRANCAISE DE DEVELOPPEMENT INDUSTRIEL

as Arrangers

and

THE BANKS NAMED HEREIN

as Lenders

and

BNP PARIBAS

as Agent

EUR 1,563,399,105

SUBORDINATED DEBT FACILITY

AGREEMENT

CONTENTS

Page i

Page ii

THIS AGREEMENT is made on 30 September 2003

BETWEEN:

BACKGROUND:

The Lenders are willing to make available to the Borrower (i) a euro term loan facility of EUR 1,200,000,000 and (ii) a euro revolving credit facility of up to EUR 363,399,105.

IT IS AGREED as follows:

1.      INTERPRETATION

1.1    Definitions: In this Agreement, except to the extent that the context requires otherwise:

Advance means an advance made or to be made by the Lenders under this Agreement, whether under Tranche A or under Tranche B, or, as the case may be, the outstanding principal amount of any such advance;

Affected Facilities means (i) the EUR 976,300,000 multicurrency revolving credit agreement dated 3 August 2001 between, inter alios, the Borrower, BNP Paribas as agent and the banks named therein, as amended by an amendment letter dated 28 March 2002 and as amended and restated by a second amendment agreement dated 8 April 2003 and (ii) the EUR 1,250,000,000 Credit Agreement;

Affiliate means, in respect of any Person, any Subsidiary or holding company of that Person, or any Subsidiary of any such holding company, or any other Person in which that Person or any such holding company or Subsidiary owns at least 20% of the share capital or the like;

Agency means, in respect of a state, any agency, authority, central bank, department, government, legislature, minister, ministry, official or public or statutory Person (whether autonomous or not) of, or of the government of, that state or any political sub-division therein or thereof;

Applicable Accounting Principles means those accounting principles, standards and practices generally accepted in France on which the preparation of the audited consolidated accounts of the Borrower and the Consolidated Group as at 31 March

2003 and for the twelve month period ended on that date was based and those accounting policies which were used in the preparation of those accounts;

Auditors means Barbier Frinaut et Associés and Deloitte & Touche or any other firm of independent public accountants of international standing which may be appointed as its auditors from time to time by the Borrower;

Authorised Signatory means any of Philippe Jaffré, Marc Haestier, Olivier Klaric or Pierre-Jean Bosio or any other person of similar status nominated by the Borrower and approved by the Agent (such approval not to be unreasonably withheld or delayed);

Available Commitment means, in relation to a Lender, its Tranche A Available Commitment or its Tranche B Available Commitment, as the case may be;

Billets de Trésorerie means the billets de trésorerie issued or to be issued by the Borrower pursuant to article 2.5 of the Protocol and which are for the time being outstanding;

Bonding Guarantee Facility Agreement means the EUR 3,500,000,000 bonding guarantee facility agreement dated 29 August 2003 between, inter alios, ALSTOM Holdings, HSBC Bank plc as agent and the banks named in that agreement;

Bonds means the EUR 550,000,000 bonds of the Borrower maturing in February 2004 listed on the Luxembourg Stock Exchange;

Bridge Facility Agreement means the EUR 600,000,000 revolving credit facility agreement dated 25 March 2003 and originally made between the Borrower and each of Bayerische Landesbank, Paris Branch, BNP Paribas, CCF, CDC Finance—CDC IXIS, Commerzbank Aktiengesellschaft, Paris Branch, Credit Agricole Indosuez, Credit Industriel et Commercial, Credit Lyonnais, JPMorgan Chase Bank, Paris Branch, Natexis Banques Populaires, Société Générale, the banks named therein and BNP Paribas as agent, as amended by a first amendment agreement dated 16 June 2003;

Business Day means a day (other than Saturday or Sunday) on which:

Cancellation Required Amount means a minimum of EUR 25,000,000 and an integral multiple of EUR 5,000,000;

Cash Equivalent means any demand or time deposits and certificates of deposit of any credit institution whose short-term unsecured, unguaranteed debt obligations are rated at least P-1 by Moody’s or A-1 by S&P;

CFDI means Caisse Française de Développement Industriel, whose obligations hereunder are guaranteed by the French State;

Page 2

Commitments means, in relation to any Lender, the sum of its Tranche A Commitment and its Tranche B Commitment;

Consolidated Group means, at any particular time, the Borrower and all its consolidated Subsidiaries (and member of the Consolidated Group shall be construed accordingly);

Consolidated Net Financial Expense means, with respect to the financial covenant contained in Clause 18.6(a) (Interest Coverage) at any time, interest expense plus securitisation expenses less interest income, as shown in the Latest Financial Statements at such time;

Consolidated Net Worth means, with respect to the financial covenant contained in Clause 18.6(b) (Consolidated Net Worth) at any time, the aggregate of:

all as shown in the Latest Financial Statements at such time;

Default Interest Period means a period by reference to which interest is calculated on an overdue sum;

Default Interest Rate means the relevant rate per annum (as determined by the Agent) specified in Clause 20.2 (Default Interest Periods and Rates);

Deferred Interest means:

Deferred Margin means 1.50% per annum, being one third of the Margin;

Directive means any present or future directive, regulation, request, requirement, rule or credit restraint programme of the European Union, of any Agency of any state or of any self-regulating organisation (whether or not having the force of law but, if not

Page 3

having the force of law, only if compliance with the Directive is in accordance with the general practice of Persons to whom the Directive is intended to apply);

Disposal means a sale, granting of a lease or making of an assignment, conveyance, transfer or gift or the disposal of any form of ownership, title, estate or interest (including, without limitation, by way of securitisation, sale and leaseback and/or sub-participation) and Dispose has the corresponding meaning;

Early Repayment Event means one of the events mentioned in Clause 19.2;

EBIT means EBIT as shown on the Latest Financial Statements of the Borrower;

EBITDA means, with respect to the financial covenant contained in Clauses 18.6(a) (Interest Cover), 18.6(d) (Total Net Debt Leverage) and 18.6(e) (Minimum EBITDA) at any time and for an applicable period on a consolidated basis, EBIT plus depreciation and amortisation as set out in the Borrower’s cash flow statements less goodwill amortisation and less capital gains on disposal of investments, in each case as shown in the Latest Financial Statements of the Borrower at such time;

Environmental Authorisations means all authorisations necessary under Environmental Law for the carrying out of the business of the Group and the operation and maintenance of the Assets of the Group;

Environmental Law means any law, Directive or any Consent in force from time to time relating to:

EONIA means, in relation to any Default Interest Period:

Page 4

at or about 5:00 p.m. Paris time on the applicable Rate Fixing Day for the offering of overnight deposits in euro;

EUR 1,250,000,000 Credit Agreement means the EUR 1,250,000,000 multicurrency revolving credit agreement dated 19 April 1999 between, inter alios, the Borrower, BNP Paribas as agent and the banks named therein, as amended by an amendment letter dated 17 May 2000 and by an amendment letter dated 28 March 2002 and as amended and restated by a third amendment agreement dated 8 April 2003;

EURIBOR means, in relation to any Interest Period or Default Interest Period:

at or about 11:00 a.m. Brussels time (in the case of (a) above) or Paris time (in the case of (b) above) on the applicable Rate Fixing Day for the offering of deposits in euro for the same period as the relevant Interest Period or Default Interest Period (or, if the periods are not the same, such period, if any, as the Agent determines to be substantially the same);

euro, EUR or € means the single currency of the member states of the European Union participating in Economic and Monetary Union as contemplated in the Treaty of Rome of 25 March 1957 establishing the European Community, as amended by the Maastricht Treaty on European Union (which was signed in Maastricht on 7 February 1992 and came into force on 1 November 1993) and by the Treaty of Amsterdam (signed in Amsterdam on 2 October 1997), as further amended from time to time;

Event of Default means one of the events mentioned in Clause 19.1 (Events of Default);

Excluded Default means any actual or potential default, event of default or the like (howsoever described) under an agreement described in Schedule 12 and which results from and would not have occurred but for a circumstance or event which has occurred prior to, and is subsisting on, the date of this Agreement and is listed in relation to that agreement in Schedule 12. However, any such actual or potential default, event of default or the like (howsoever described) shall cease to be an Excluded Default if any Person or group of Persons so entitled declares due and payable or puts on demand or accelerates any Indebtedness of the Borrower or any

Page 5

member of the Group, or cancels or suspends any commitment under any agreement to which the Borrower or any member of the Group is a party;

Extended Facilities means the credit facilities provided under the Extended Facility Agreements;

Extended Facility Agreements means the EUR 400,000,000 revolving credit agreement dated 28 March 2002 between, inter alios, the Borrower, BNP Paribas as agent and the banks named therein, the EUR 50,000,000 bilateral credit agreement dated 30 April, 2002 between the Borrower and BNP Paribas and the EUR 25,000,000 credit agreement dated 23 April, 2002 between the Borrower and JPMorgan Chase Bank, Paris Branch in each case, as amended by an amendment agreement dated 25 March 2003 and by a second amendment agreement dated 3 July 2003;

Facility has the meaning ascribed to it in Clause 2.1;

Facility Office means, in relation to a Lender or any New Lender at any particular time, the office through which it is then acting for the purpose of this Agreement;

Final Maturity Date means the Tranche A Maturity Date or the Tranche B Maturity Date, as the case may be;

Financial Commitments means any Indebtedness granted at any time including for or in respect of (a) money borrowed or raised (whether or not for cash) by whatever means, including the ORA, the TSDD, the TSDDRA, bonds (but excluding, for the avoidance of doubt, any bonding guarantees provided in the ordinary course of business save with respect to any indemnity or counter-indemnity obligations of the Borrower to any provider of such bonding guarantees contained in a bonding guarantee facility agreement to the extent that payment has been made by the guarantor thereunder), notes and other debt instruments issued, other financial debts and bank overdrafts, acceptances, discounting, factoring, financial leases, hire purchase, sale-and-lease back, securitisation transactions, sale-and-repurchase and any form of off-balance sheet financing, (b) the deferred purchase price of Assets or services (other than goods or services obtained on normal commercial terms in the ordinary course of trading), (c) for the purposes of Clause 19.1(d) (Cross Default) only, any amounts due and payable under derivatives or hedging instruments, or (d) any Guarantee in respect of any Indebtedness falling within (a), (b) or (c) above;

G7 Banks means BNP Paribas, CCF, CDC Finance—CDC IXIS, Crédit Agricole Indosuez, Crédit Industriel et Commercial, Crédit Lyonnais, Natexis Banques Populaires, and Société Générale;

Group means at any particular time, the Borrower and its Subsidiaries;

Group Guarantee means a Guarantee from any member of the Consolidated Group or a Subsidiary or an Affiliate of such a member (other than an SPP described in paragraph (i) of the definition of “Project Finance Indebtedness”);

Indebtedness means, with respect to any Person (the Relevant Person), any obligation (whether present or future, actual or contingent, secured or unsecured, as

Page 6

principal, surety or otherwise) (a) of such Relevant Person for the payment or repayment of money, or (b) of any other Person for the payment or repayment of money secured by Security on Assets of the Relevant Person, whether or not the Relevant Person is primarily liable in respect of any obligation so secured;

Information Package means:

Insolvency Proceeding means, in respect of any Person, such Person enters into a règlement amiable or liquidation or any other arrangements or composition with its creditors or such Person is in a situation of cessation des paiements or a judgement is given for a liquidation judiciaire, redressement judiciaire or a plan cession in respect of its business or such Person is subject to any similar proceedings under the law of any jurisdiction in which that Person is incorporated, domiciled or resident or carries on business or has assets;

Intellectual Property means patents and patent applications, trade and service marks and applications (and goodwill associated with such applications), brand and trade names, copyrights and rights in the nature of copyright, design rights, registered designs and applications for registered designs, trade secrets, know-how and all other intellectual property rights throughout the world and all rights under any agreements relating to the use or exploitation of such rights;

Inter-bank Market means:

Interest Payment Date means the last day of each Interest Period;

Page 7

Interest Period means the period determined in accordance with Clauses 8.1 and 8.2;

Investment Grade means, in respect of any Person, that its long term unsecured, unsubordinated debt has been assigned a credit rating of at least Baa3 by Moody’s or BBB- by S&P;

Investments means (i) any debt securities issued by the governments of any member state of the European Union, Switzerland or the United States, or (ii) any debt securities maturing not more than 1 year after the date of acquisition, issued by any commercial banking institution or any company (other than a Subsidiary of the Borrower) organised under the laws of any of the countries referred to above and whose short term debt rating, as at the time of any investment, is at least P-1 or A-1 according to Moody’s or S&P, respectively, or any successor thereto;

Latest Financial Statements means the Original Financial Statements or, if applicable, the financial statements and accounts of the Consolidated Group most recently delivered to the Agent pursuant to Clauses 17.2 (Audited Accounts) and 17.3 (Semi-Annual Information);

Liquidity Plan means any liquidity plan certified by the Chief Financial Officer of the Borrower updating the September Liquidity Plan and substantially in the same form as the long form September Liquidity Plan;

Litigation Report means the internal annual litigation report of the Borrower prepared in the context of the disclosures made in the Borrower’s annual accounts, as well as its subsequent updates provided to the agent and the banks under the Affected Facilities and to the Agent and the Lenders pursuant hereto;

Majority Lenders means Lenders whose Commitments (whether drawn or undrawn) together exceed 66 ²/3% of the Total Commitments or, once the Available Commitments equal zero, Lenders the amounts of whose Outstandings together exceed 66 ²/3% of the amount of the total Outstandings;

Mandatory Costs means, in relation to any Interest Period or Default Interest Period (or part of an Interest Period or Default Interest Period) relating to any Lender’s share of an Advance or overdue sum, the percentage rate per annum determined by that Lender in accordance with Schedule 7 (Mandatory Costs);

Margin means in respect of a Tranche A Advance or a Tranche B Advance, 4.50% per annum of which one third is Deferred Margin;

Material Adverse Effect means any event or circumstance which has a material adverse effect (a) on the financial condition or business of the Borrower or the Group taken as a whole, or (b) on the ability of the Borrower to perform and comply with its obligations under this Agreement;

Material Subsidiary means, at any time, any Subsidiary of the Borrower which is named in the list of Subsidiaries set out in Schedule 8 (List of Material Subsidiaries) (including ALSTOM Holdings) or in any such revised list as shall be provided by the Borrower to the Agent together with its annual consolidated accounts and semi-annual

Page 8

and quarterly financial information specified in Clause 17.9 (Material Subsidiaries), provided that a Subsidiary shall in all cases be a Material Subsidiary if:

provided that all Material Subsidiaries shall represent in aggregate not less than 70% of the consolidated revenues of the Group for the period in respect of which such accounts were prepared or financial information relates, as the case may be;

Moody’s means Moody’s Investors Services;

Net Cash Proceeds means the cash proceeds from the disposal of assets, having deducted, for the avoidance of doubt:

New Lender means:

and in each case, to which the assignment or transfer of such rights and/or obligations is permitted by applicable law;

ORA means the issue of obligations remboursables en actions referred to, and on the terms set out, in article 3.4 of the Protocol in an amount not less than EUR 900,000,000;

Original Financial Statements means the audited consolidated financial statements of the Consolidated Group for the period of 12 months ending 31 March 2003;

Page 9

Outstandings means, in relation to a Lender at any particular time, the aggregate principal amount of its share of all (if any) Advances outstanding at that time;

Place of Payment means the principal financial centre of the country of the currency to be paid (or, if there is more than one such centre, one of those centres as selected by the Agent);

Potential Event of Default means any event or circumstance which, if it continued after the giving of any notice, the expiry of any grace period, and/or (as the case may be) the making of any determination by the Majority Lenders, provided for in Clause 19.1 (Events of Default), would become an Event of Default;

Prepayment Required Amount means a minimum of EUR 50,000,000 and an integral multiple of EUR 25,000,000;

Project Finance Indebtedness means any Indebtedness to finance the ownership, acquisition, development, operation or maintenance of an asset or business (a Project):

Page 10

provided that in no circumstances shall there be any such recourse in respect of unlimited cash flow deficiencies within the relevant Project in excess of EUR 15,000,000 per annum; and/or

Page 11

Protocol means the agreement entered into on 2 August 2003 between the French State, BNP Paribas, Groupe Crédit Agricole, Société Générale and the Borrower, as amended by an Avenant à l’accord du 2 août 2003 entered into on 20 September 2003 between the French State, the G7 Banks and the Borrower. For the avoidance of doubt, references herein to the Protocol shall not include any amendment or modification thereto unless agreed by the parties hereto;

PwC Report means any report prepared by PricewaterhouseCoopers in respect of the Group pursuant to Clause 17.11 (PwC Reports) and shall include, for the avoidance of doubt, the Liquidity Plan to which any such report relates;

Qualifying Lender means a Person which is entitled to any part of an Advance and any interest to be paid to it on that part of that Advance and which fulfils the conditions (other than the completion and filing of forms by such Person) imposed by French laws, taking into account, as the case may be, any applicable international treaty, in order for any sum payable by the Borrower or the Agent for the account of the Borrower not to be subject to any withholding or deduction for any Taxes;

Rate Fixing Day means in relation to any Interest Period or Default Interest Period for which an interest rate is to be determined under this Agreement, the day on which quotations would ordinarily be provided in the relevant Inter-bank Market for deposits in the relevant unit for delivery on the first day of that period. If for any such period quotations would ordinarily be provided on more than one day, the Rate Fixing Day for that period shall be whichever of those days is from time to time nominated by the Agent (having regard to any convention or practice in the relevant Inter-bank Market);

Reference Banks means, subject to Clause 26.5(a) (Reference Banks), BNP Paribas, Crédit Agricole Indosuez, Crédit Lyonnais and Société Générale, each acting through its Paris or Brussels office;

Relevant Facilities means the Bridge Facility Agreement, the Extended Facility Agreements, the agreement referred to in paragraph (i) of the definition of “Affected Facilities”, the EUR 200,000,000 Loan Agreement dated 18 August 2000 (as amended) between the Borrower and CDC Finance - CDC IXIS and the EUR 33,200,000 credit facility dated 4 January 2000 between the Borrower and Caisse Régionale de Crédit Agricole Mutuel Charente Périgord;

Repayment Date means, in relation to an Advance under Tranche A, the Final Maturity Date and in relation to an Advance under Tranche B, the last day of its Interest Period;

Required Amount means a minimum of EUR 20,000,000 and an integral multiple of EUR 5,000,000;

Reservations means generally applicable legal principles affecting creditors’ rights generally as set out in the legal opinions referred to in paragraph 1.4 of Schedule 1;

S&P means Standard & Poor’s Rating Services, a division of The McGraw-Hill Inc.;

Page 12

Security means any mortgage, pledge, lien, hypothecation, security interest or other charge or encumbrance and any other agreement or arrangement having substantially the same economic effect (including, for the avoidance of doubt, any arrangement under which the repayment of a deposit or similar sum of money to a person depends on the performance by that person of certain payment obligations, or any similar arrangement) (and secured shall be construed accordingly);

September Liquidity Plan means the 3 year liquidity plan dated 19 September 2003 referred to as “W10” in article 1.2 of the Protocol and delivered to the Lenders, a copy of which is initialled by the Borrower for identification purposes on the date of this Agreement, to be validated in the PwC Report to be delivered on or prior to 15 November 2003;

Short-Term Investments means any short-term debt securities issued by any commercial banking institution or any company (other than a Subsidiary of the Borrower) organised under the laws of any of the OECD countries and whose short term debt rating, as at the time of any investment, is at least P-1 or A-1 according to Moody’s Investors Service, Inc. or Standard & Poor’s Ratings Services, respectively, or any successor thereto and purchased by the Borrower as a short term placement of excess cash;

Specified Time for any action means the time and date specified in Schedule 6 (Timetables) for that action;

Strategic Plan means the strategic plan for the Group outlined in the press release of 12 March 2003;

Subsidiary means an entity of which the Borrower has from time to time direct or indirect control (as defined in article L.233-3 of the French Commercial Code);

T&D means the project referred to as “the disposal of transmission and distribution business” in the Strategic Plan and the Protocol or such business itself, as the context may require;

T&D Letter means the letter of the Borrower dated 25 September 2003 delivered to the Agent (in sufficient copies for each of the Lenders) and in a form and substance satisfactory to the Lenders setting out the gross proceeds, adjustment provisions, expected Net Cash Proceeds and timing of all payments to be received by the Borrower in connection with T&D;

TARGET means Trans-European Automated Real-time Gross Settlement Express Transfer payment system;

TARGET Day means any day on which TARGET is open for the settlement of payments in euro;

Tax includes any present or future tax, levy, impost, duty, charge, fee, deduction or withholding of any nature and whatever called, by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or assessed and includes any penalty or interest payable in connection with any failure to pay or delay in paying the same;

Page 13

Total Commitments means the aggregate of the Tranche A Commitments and the Tranche B Commitments, being EUR 1,463,399,105 at the date of this Agreement;

Total Debt means, at any time, an amount equal to the aggregate of the liabilities described as “financial debt” of the Consolidated Group (including borrowings, bonds and notes issued, other financial debt and bank overdrafts and, for the avoidance of doubt, the redeemable preference shares of ALSTOM Finance Jersey Ltd. maturing on 31 March 2006, the subordinated notes issued on 29 September 2000, the TSDD and the TSDDRA but excluding the ORA) and the aggregate amount of securitised trade receivables (both existing and future and, in each case, to the extent permitted pursuant to the terms of this Agreement) net of retained interests, all as shown in the then latest monthly management accounts and/or Latest Financial Statements of the Borrower, as the case may be (recognising, without prejudice to the Borrower’s obligations pursuant to Clauses 17.1 (Preparation of Accounts), 17.2 (Audited Accounts) and 17.3 (Semi-Annual Information), that figures prepared with due diligence and in good faith in respect of semi annual and annual accounts may differ from the figures in the management accounts for the corresponding period);

Total Net Debt means, at any time, Total Debt less Short-Term Investments, cash and Cash Equivalents of the Consolidated Group all as shown in the then latest monthly management accounts and/or Latest Financial Statements of the Borrower, as the case may be (recognising that figures in respect of semi-annual and annual accounts may differ from the figures in the management accounts for the corresponding period);

Total Net Debt Leverage Ratio means a ratio the numerator of which is the Total Net Debt of the Borrower (calculated as specified in Clause 18.6(d) (Total Net Debt Leverage)) and the denominator of which is EBITDA;

Tranche A means the term loan facility made available to the Borrower under this Agreement and any Advances made thereunder;

Tranche A Amount means the total amount that may be drawn under Tranche A, which on the date of the Agreement is EUR 1,200,000,000;

Tranche A Available Amount means the total amount of the Tranche A Available Commitments;

Tranche A Availability Period means the period during which Tranche A is available to be drawn by the Borrower, being from (and including) the date of this Agreement to (and including) 28 February 2004;

Tranche A Available Commitment means, in relation to a Lender on any date during the Tranche A Availability Period, its Tranche A Commitment (to the extent not cancelled) less the amount of that Lender’s share of any Tranche A Advances made on or prior to the relevant date;

Tranche A Commitment means in relation to a Lender and subject as provided in this Agreement, the amount set out opposite its name at the end of this Agreement under the heading “Tranche A”;

Page 14

Tranche A Maturity Date means 30 September 2008;

Tranche A Outstandings means, in relation to a Lender at a particular time, the aggregate principal amount of its share of all (if any) Tranche A Advances outstanding at that time;

Tranche B means the revolving credit facility made available to the Borrower under this Agreement and any Advances made thereunder;

Tranche B Amount means the total amount that may be drawn under Tranche B, which on the date of the Agreement is no more than EUR 263,399,105, it being understood that such amount may be increased by up to EUR 100,000,000 in accordance with article 3.4 of the Protocol;

Tranche B Available Amount means the total amount of the Tranche B Available Commitments;

Tranche B Availability Period means the period during which Tranche B is available to be drawn by the Borrower, being from (and including) 20 January 2004 to (and including) the Tranche B Maturity Date;

Tranche B Available Commitment means, in relation to a Lender on any date during the Tranche B Availability Period, its Tranche B Commitment (to the extent not cancelled) less the amount of that Lender’s share of any Advances under Tranche B made on or prior to the relevant date;

Tranche B Commitment means, in relation to a Lender at any time of calculation and subject as provided in this Agreement, the amount set out opposite its name at the end of this Agreement under the heading “Tranche B” together with, in relation to the G7 Banks only, such additional commitment amount determined in accordance with article 3.4 of the Protocol, if any;

Tranche B Maturity Date means 30 September 2008;

Tranche B Outstandings means, in relation to a Lender at a particular time, the aggregate principal amount of its share of all (if any) Tranche B Advances outstanding at that time;

Transaction Documents means this Agreement, the fee letters referred to in Clause 9 (Fees) and any other agreements designated as such by the Borrower and the Agent;

Transfer Agreement means an agreement substantially in the form set out in Schedule 4 (Form of Transfer Agreement);

TSDD means the issue of titres subordonnés à durée déterminée referred to, and on the terms set out, in article 2.1 b) of the Protocol which are to be expressed by their terms as subordinated in accordance with article L.228-97 of the Code de Commerce;

TSDDRA means the issue of titres subordonnés à durée déterminée remboursables en actions referred to, and on the terms set out, in article 2.1 a) of the Protocol which are

Page 15

to be expressed by their terms as subordinated in accordance with article L.228-97 of the Code de Commerce;

Underwriting Agreement means any underwriting agreement entered or to be entered into by the Borrower in connection with the issue of ORA as contemplated in the Protocol;

Vendor Financing means the provision of financial assistance to a third party institution which finances any customer of any member of the Group;

1.2    Construction of Certain References: Except to the extent that the context requires otherwise, any reference in this Agreement to:

acting in concert in connection with a change of control has the meaning given to that term in article L.233-10 of the French Commercial Code;

this Agreement includes this Subordinated Debt Facility Agreement, the fee letters referred to in Clause 9 (Fees), the Taux Effectif Global letter referred to in Clause 8.6 (Taux Effectif Global), any transfer agreement, notice of assignment and any other document designated by the Agent and the Borrower, as from time to time amended, supplemented, novated, restated or replaced and any document which amends, supplements, novates, restates or replaces this Agreement, in accordance with Clause 26.3 (Transfer or Assignment by Lenders) or 27.2 (Amendments, Waivers and Consents);

the Assets of any Person means all or any part of its business, undertaking, property, assets, revenues (including any right to receive revenues) and uncalled capital, wherever situated;

Consent also includes an approval, authorisation, exemption, filing, licence, order, permission, recording or registration (and references to obtaining Consents shall be construed accordingly);

one Person being Controlled by another means that other (whether directly or indirectly and whether by the ownership of share capital, the possession of voting power, contract or otherwise) has the power to appoint and/or remove all or the majority of the members of the Board of Directors or other governing body of that Person or otherwise controls or has the power to control the affairs and policies of that Person;

the date of this Agreement means 30 September 2003;

the equivalent in any currency (the first currency) of any amount in another currency (the second currency) shall be construed as a reference to the amount in the first currency which could be purchased with that amount in the second currency at the spot rate of exchange at which the Agent would have been prepared and able to purchase that amount in the first currency for the second currency in the Paris foreign exchange market for value as at the relevant time on the relevant date specified in this Agreement (or, where no such time and date is specified, for value at such time and

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on such date as the Agent may from time to time reasonably determine to be appropriate in the circumstances);

a Guarantee also includes an indemnity and any other obligation (whatever called) of any Person to pay, purchase, provide funds (whether by the advance of money, the purchase of or subscription for shares or other securities, the purchase of Assets or services, or otherwise) for the payment of, indemnity against the consequences of default in the payment of, or otherwise be responsible for, any Indebtedness of any other Person, including (without limitation) any cautionnement, aval or garantie which is independent from the debt to which it relates;

a law includes common or customary law and any constitution, decree, judgement, legislation, order, ordinance, regulation, statute, treaty or other legislative measure, in each case of any jurisdiction whatever (and lawful and unlawful shall be construed accordingly);

a Lender includes any New Lender which is an assignee or transferee pursuant to Clause 26.3 (Transfer or Assignment by Lenders);

a merger includes, in respect of any company, any fusion implemented in accordance with articles L.236-1 to L.236-24 of the French Commercial Code;

any obligation of any Person under this Agreement or any other agreement or document shall be construed as a reference to an obligation expressed to be assumed by or imposed on it under this Agreement or, as the case may be, that other agreement or document (and due, owing, payable and receivable shall be similarly construed);

a Person includes any individual, company, corporation, firm, state or Agency of a state, or any grouping of 2 or more of the foregoing (in each case, whether or not having separate legal personality);

a reconstruction includes, in respect of any company, any contribution of part of its business in consideration of shares (apport partiel d’actifs) and any de-merger (scission) implemented in accordance with articles L.236-1 to L.236-24 of the French Commercial Code;

Tax on Overall Net Income of a Person shall be construed as a reference to Tax (other than Tax deducted or withheld from any payment) imposed on that Person by the jurisdiction in which its principal office (and/or, in the case of a Lender, its Facility Office) is located by reference to (a) the net income, profits or gains of that Person world-wide or (b) such of its net income, profits or gains as arise in or relate to that jurisdiction;

a time of the day is to Paris time unless otherwise stated;

trustee and fiduciary has, in each case, the meaning given to such term under any applicable law;

the Winding-up of a Person also includes the amalgamation, reconstruction, administration, dissolution, liquidation, merger or consolidation of that Person, and

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any equivalent or analogous procedure under the law of any jurisdiction in which that Person is incorporated, domiciled or resident or carries on business or has Assets.

1.3    Calculation of Financial Covenants: For the purposes of the covenants contained in Clauses 18.6 (Financial Covenants) and 18.7 (Restriction on Subsidiary Indebtedness), Consolidated Net Worth, Consolidated Net Financial Expense, EBIT, EBITDA, Total Debt and Total Net Debt shall be calculated and interpreted in accordance with Applicable Accounting Principles and shall be expressed in euro.

1.4    Construction of Certain Clauses: Clauses 11 (Illegality), 16.1(j) (No Material Adverse Change), 16.1(f)(ii) (No Default) and 19.1(i) (Litigation), 19.1(l) (Illegality or Invalidity), 19.1(n) (Material Adverse Change) shall not apply to the events or circumstances described in Clauses 19.2(b) (Implementation of the Protocol) or 19.2(c) (Failure to Implement the Protocol);

1.5    Headings: Headings shall be ignored in construing this Agreement.

2.    THE FACILITY

2.1    Amount: On the date of this Agreement, the Lenders grant to the Borrower a euro term loan and revolving credit facility of up to EUR 1,563,399,105 in aggregate available in 2 tranches consisting of a Tranche A term loan of EUR 1,200,000,000 and a Tranche B revolving credit facility of up to EUR 363,399,105 (collectively, the Facility).

2.2  Pro Rata Participation in Advances:

2.3    Calculation of Available Commitments/Facility: In order to calculate the amount of the Tranche A Available Amount and the Tranche B Available Amount and each Lender’s Tranche A Available Commitment or, as the case may be, its Tranche B Available Commitment in connection with a proposed Advance (whether for the purpose of Clause 2.2 (Pro Rata Participation in Advances) or 4.2 (Drawdown Request)):

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The Borrower shall use the proceeds of:

but in each case neither the Agent nor any Lender will be required to verify that the Advances are so used.

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3.    CONDITIONS PRECEDENT TO SIGNING

The conditions precedent to the signing of this Agreement set out in Schedule 1 (Conditions Precedent to Signing) shall have been satisfied or waived prior to the date of this Agreement.

4.    DRAWDOWN

4.1    Drawdown Conditions: Advances will be made by the Lenders to and as requested by the Borrower if the conditions set out in Clauses 4.2 (Drawdown Request) to 4.7 (Conditions Precedent to First Tranche B Drawdown), as applicable, are fulfilled no later than the Specified Time.

4.2    Drawdown Request: Not later than the Specified Time (or, as the case may be, such later time as may be acceptable to the Agent and the Lenders for the purpose of the relevant request), the Agent has received from the Borrower a notice substantially in the form set out in Schedule 5 (Drawdown Notice) specifying:

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4.3    Conditions Precedent to All Drawdowns: No Advance shall be made under Tranche A or Tranche B unless all the conditions precedent set out in Schedule 1 (Conditions to Signing) and Schedule 3 (Conditions Precedent to All Drawdowns) have been satisfied.

4.4    Conditions Precedent to First Tranche A Drawdown: No Advance shall be made under Tranche A unless the Agent has received satisfactory evidence that:

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Agreement (including the French version thereof) and which are due and payable have been paid in full.

4.5    Conditions Precedent to Second Tranche A Drawdown: The second Advance under Tranche A shall not be made unless the Agent has received satisfactory evidence that all amounts outstanding and commitments under the Extended Facility Agreements have been repaid in full and cancelled.

4.6    Restrictions on Tranche A Drawdowns:

4.7    Conditions Precedent to First Tranche B Drawdown: No Advance shall be made under Tranche B unless the Agent has received satisfactory evidence that (i) all amounts outstanding and commitments under the EUR 1,250,000,000 Credit Agreement have been repaid in full and cancelled, and (ii) all amounts outstanding and commitments under the Extended Facility Agreements have been, or will on the date of that Advance be, repaid in full and cancelled.

4.8    Notification of Drawdown Requests: The Agent shall promptly (and in any event by the Specified Time) notify each Lender of the proposed details of, and the amount of that Lender’s share of, each Advance.

4.9    Limit on Number of Advances: Tranche A will be available to be drawn in two Advances and Tranche B will be available to be drawn in one or more Advances, provided that with respect to Tranche B not more than four Advances may be outstanding at any one time. For the avoidance of doubt, the first Advance under Tranche A shall, notwithstanding that it will be used for the two separate purposes referred to in Clause 2.4(a) (Purpose), be treated as a single Advance.

4.10    Consolidation of Advances Under Tranche A: Each Advance made under Tranche A shall be consolidated into a single Advance at the end of each Interest Period, provided that this Clause 4.10 shall not in any way affect the restrictions on the number of Advances set out in Clause 4.9 (Limit on Number of Advances).

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5.1    Repayment of Advances: The Borrower shall repay each Advance on its Repayment Date, together with all unpaid interest accrued on that Advance other than Deferred Interest, which Deferred Interest shall be payable in accordance with Clause 8.5(b). However, as the facility under Tranche B is revolving, any amount repaid under Tranche B before the Tranche B Maturity Date will remain available for re-borrowing under Tranche B on the terms and conditions of this Agreement.

5.2    Final Maturity Date: If on the Final Maturity Date any Advance remains outstanding, the Borrower shall repay that Advance on that date together with all Deferred Interest, unpaid accrued interest and fees and any other sum then due under this Agreement.

6.1    Of All Lenders: Following the date on which there is an unconditional payment or discharge in respect of the aggregate of all moneys and other liabilities then due or owing by the Borrower under each of the Relevant Facilities, the Borrower may (and shall as provided in Clause 7.1) prepay any Advance made under Tranche A, or any part of it which is a Prepayment Required Amount, without penalty, on any Interest Payment Date if (i) it gives to the Agent not less than 10 Business Days’ irrevocable written notice of the Advance to be prepaid and the date and amount of the prepayment, and (ii) a portion of the Tranche B Available Commitments proportional to the amount of Tranche A Advances being prepaid is cancelled on the date of prepayment. Any such prepayment must be accompanied by Deferred Interest, accrued interest on the amount prepaid and any other sum then due under Clause 21.2 (Break Funding Costs) or any other provision of this Agreement. Any Advance in respect of Tranche A which is repaid may not be redrawn.

the Borrower may prepay all (but not part only) of that Lender’s Outstandings without premium or penalty on the date of prepayment specified in that notice. Any such prepayment must be accompanied by all Deferred Interest, unpaid accrued interest on that Lender’s Outstandings, all unpaid fees accrued to that Lender and any other sum then due to that Lender under Clause 21.2 (Break Funding Costs) or any other provision of this Agreement.

7.1    Of All Lenders: Following the date on which there is an unconditional payment or discharge in respect of the aggregate of all moneys and other liabilities

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then due or owing by the Borrower under each of the Relevant Facilities, the Borrower may (and shall as provided in Clause 6.1) cancel the Tranche B Available Amount, or any part thereof which is a Cancellation Required Amount, without premium or penalty on any Interest Payment Date before the relevant Final Maturity Date if (i) it gives to the Agent not less than 10 Business Days’ irrevocable written notice of the date and amount of the cancellation, (ii) an amount of Deferred Interest proportional to the cancelled portion of the Tranche B Available Amount is paid on such cancellation date and (iii) a portion of the Tranche A Outstandings and Deferred Interest relating thereto proportional to the amount of Tranche B Available Commitments being cancelled is paid on such cancellation date. Any such partial cancellation shall reduce each Lender’s Tranche B Commitment rateably.

7.2    Of Certain Lenders: If the events specified in Clauses 6.2(a) (Of Certain Lenders) and 6.2(b) (Of Certain Lenders) occur, the relevant Lender’s Commitment in respect of Tranche A or Tranche B shall be cancelled (without premium or penalty) upon the Agent receiving the relevant notice under Clause 6.2(b) (Of Certain Lenders). In addition, if any event specified in Clause 6.2(a) (Of Certain Lenders) occurs and there are no Outstandings owing to the relevant Lender, the Borrower may cancel all (but not part only) of that Lender’s Commitment without premium or penalty at any time before the relevant Final Maturity Date if it gives to that Lender and the Agent not less than 10 Business Days’ irrevocable written notice of the date of the cancellation.

7.3    Cancellation Rights Limited: The Borrower may not cancel all or any part of the Commitments except as expressly provided in this Agreement.

7.4    No Reinstatement: No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

8.1    Interest Periods: Interest shall be calculated on each Advance by reference to the Interest Period of that Advance. The Interest Period in respect of an Advance shall begin on the proposed date of that Advance or (if already made) on the last day of its preceding Interest Period and shall have a duration of:

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in the case of paragraph (c) above as selected by the Borrower in the notice requesting that Advance, provided that in the case of any Tranche B Advance, the Borrower may not select an Interest Period ending after the relevant Final Maturity Date.

8.2    Non-Business Days: If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

8.3    Normal Interest Rate: The rate of interest applicable to an Advance for each Interest Period applicable to that Advance shall be the rate per annum (as determined by the Agent) equal to the sum of:

8.4    Notification of Interest Rates: The Agent shall promptly notify the Borrower and the Lenders of each rate of interest determined in accordance with this Agreement.

8.5    Payment of Interest:

8.6    Taux Effectif Global: For the purpose of Article L.313.1 et seq. of the French Code de la Consommation, the parties acknowledge that, due to certain characteristics of the facility and, in particular, to the floating interest rate applicable to the Advances, the actual all-in percentage rate (taux effectif global) for the duration of the facility cannot be calculated as at the date of this Agreement. Notwithstanding the above, the Agent delivered to the Borrower on the date of this Agreement letters containing indicative calculations of the actual all-in percentage rate, the form of the latter such letter being set out in Schedule 9 (Taux Effectif Global Letter).

8.7    Deferred Interest: Without prejudice to any other provisions of this Agreement, the following principles applying to Deferred Interest are set out below for explanation purposes:

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9.1    Agency Fee: The Borrower shall pay to the Agent for its own account an agency fee as stated in a letter dated 30 September 2003 from the Agent to, and countersigned by, the Borrower.

9.2    Upfront Fee: The Borrower shall pay to the Agent (for the account of the Lenders) an upfront fee as stated in a letter dated 30 September 2003 from the Agent to, and countersigned by, the Borrower.

9.3    Commitment Fees: The Borrower shall pay a commitment fee calculated on a daily basis at the rate of 1.50% per annum on the amount of each Lender’s Tranche A Available Commitment and Tranche B Available Commitment in each case during the period from (but excluding) the date of this Agreement to (and including) the Final Maturity Date. These fees shall be payable in arrear quarterly from the date of this Agreement and on the relevant Final Maturity Date or any earlier date on which that Lender’s Tranche A Commitment or Tranche B Commitment, as the case may be, is reduced to zero.

10.1    Payments to be Free and Clear: All sums payable by the Borrower under this Agreement shall be paid free and clear of and (except to the extent required by law) without any deduction or withholding, whether for or on account of Tax, by way of set-off or otherwise.

10.2    Grossing-up of Payments:

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10.3    Qualifying Lender: Notwithstanding Clauses 10.2(a) (Grossing-up of Payments) and (b) (Grossing-up of Payments), the Borrower shall not be required to pay any additional amount in respect of any Tax so imposed or levied on a Lender if (i) on the due date of a payment of interest to a Lender or the Agent, such Person is not a Qualifying Lender, unless such imposition of withholding results from the introduction of, or any change in, or in the interpretation or application of, any relevant law, order or practice of the tax authorities after this Agreement is entered into or, as the case may be, the date on which that Person becomes a Lender or Agent, as the case may be, or from the breach by the Borrower of its obligations under Clause 10.4 (Tax Administration Formalities) below or (ii) subject to the Borrower complying with Clause 10.4 (Tax Administration Formalities), such Person has failed to complete any procedural formalities which were in its sole dominion and control to complete and which are necessary in order to ensure that no additional amounts in respect of Tax are payable by the Borrower pursuant to Clause 10.2 (Grossing-up of Payments).

10.4    Tax Administration Formalities: The Borrower agrees to provide such information in respect of itself as may be reasonably requested by the Lenders or the Agent in order for the Lenders or the Agent to comply with any administrative formalities required in order for the Lenders or the Agent to be exempt from withholding or deduction for any Taxes under any applicable international treaty.

then, if it can do so without any adverse consequences for that Lender, that Lender shall, as soon as practicable, reimburse the Borrower such amount as that Lender determines in its sole discretion to be such proportion of that Tax Credit as will leave that Lender (after that reimbursement) in no better or worse position in respect of its world-wide Tax liabilities than it would have been in if no Tax Payment had been required. A Lender shall use its reasonable endeavours to claim any Tax Credit (and, if it does claim, to determine the extent, order and manner in which it does so) and to determine whether any amount is due from it under this Clause 10.5 (and, if so, what amount and when). No Lender shall be obliged to disclose any information regarding its Tax affairs and computations.

If at any time any Lender (acting reasonably) determines that it is or will become unlawful or contrary to any law or Directive for it to allow all or part of its Commitment to remain outstanding, to make, fund or have outstanding all or part of its Outstandings and/or to carry out all or any of its other obligations under this Agreement then:

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12.1    Indemnity: If the Agent or, as the case may be, any Lender (in each case acting reasonably) determines that, as a result of (a) the introduction of or any change in, or in the interpretation or application of, any law or Directive (b) compliance by it with any law or Directive:

the Borrower shall, at the request of the Agent or the relevant Lender, as the case may be, and at the Borrower’s option either (i) indemnify it (or pay to it an amount sufficient to indemnify any of its holding companies) against that cost, reduction, payment or forgone interest or other return (except to the extent that it results from a deduction or withholding of Tax) and, accordingly, shall from time to time on demand (whenever made) pay to the Agent for its own account or, as the case may be, for the account of that Lender the amount certified by it with reasonable justification to be necessary so as to indemnify it (or any of its holding companies) or (ii) prepay to that Lender all (but not part only) of that Lender’s Outstandings on the date specified in that request. Any such prepayment will be made without penalty but must be accompanied by a payment of all unpaid Deferred Interest, accrued interest on that Lender’s Outstandings, fees accrued to that Lender and any other sum then due to that Lender under Clause 21.2 (Break Funding Costs) or any other provision of this Agreement.

12.2    Capital Adequacy: Under Clause 12.1 (Indemnity), a Lender shall be entitled to claim indemnification not only for a cost, reduction, payment or forgone interest or other return directly attributable to this Agreement, its Commitment, its share of any

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Advance or any overdue sum, but also for that proportion of any cost, reduction, payment or forgone interest or other return which that Lender (or any of its holding companies) reasonably determines to be fairly allocable to this Agreement, its Commitment, its share of any Advance or any overdue sum in relation to any law or Directive applicable to that Lender (or any of its holding companies) or affecting the conduct of that Lender’s (or any of its holding companies’) business or a type of business or the manner in which or the extent to which that Lender (or any of its holding companies) allocates capital resources.

13.1    Triggering Events: If in relation to any Advance:

the Agent shall promptly notify the Borrower and the Lenders and that Advance shall not be made.

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If any circumstances arise which result, or would on the giving of notice result, in the Borrower having to make a payment to or for the account of a Lender under Clause 10 (Taxes), 11 (Illegality) or 12 (Increased Costs), or in a Lender’s Commitment being cancelled under Clause 11(a), then without in any way limiting, reducing or otherwise qualifying any of the obligations of the Borrower under Clauses 10 (Taxes) to 13 (Increased Costs):

However, no Lender shall be obliged to take any such steps which in its reasonable opinion could have an adverse effect on that Lender.

15.1    By Lenders: On each date on which an Advance is to be made, each Lender shall make its share of that Advance available to the Agent. Each such amount shall be made available in euro in such funds and by such time on the due date as may then be generally accepted for the settlement in the Place of Payment of international payments in euro to such account with such bank in the Place of Payment as the Agent may specify.

If so requested by the Agent, the relevant Lender will promptly confirm to the Agent that it will make the relevant payment as required by this Clause 15.1.

15.2    Disbursement to Borrower: The Agent shall make the amounts so received by it from the Lenders available to the Borrower before close of business in the Place of Payment on that date by payment in euro of funds as received by the Agent to such account with such bank as the Borrower shall have specified in the notice requesting that Advance. If any Lender makes its share of an Advance available to the Agent later than required by Clause 15.1 (By Lenders), the Agent shall make that share available to the Borrower as soon as practicable thereafter.

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15.4    By Borrower: On each date on which a payment is to be made by the Borrower, it shall make that payment to the Agent in the currency specified in Clause 15.3 (Currency of Payments) in such funds and by such time on the due date as may then be generally accepted for the settlement in the Place of Payment of international payments in that currency. All such payments shall be made to such account with such bank in the Place of Payment as the Agent may specify.

15.5    Distribution to Lenders: The Agent shall make available to each Lender before close of business in the Place of Payment on that date its pro rata share (if any) of any sum so received by the Agent from the Borrower in the same currency and funds as received by the Agent to such account of that Lender with such bank in the Place of Payment as it shall have designated to the Agent for that purpose. If any sum is received by the Agent from the Borrower later than required by Clause 15.4 (By Borrower), the Agent shall make each Lender’s share (if any) available to it as soon as practicable thereafter.

15.6    Netting of Payments: Notwithstanding Clauses 15.1 (By Lenders) to 15.3 (Currency of Payments) or any other provision of this Agreement:

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The relevant Lender shall remain obliged to advance the first amount in euro and the Borrower shall remain obliged to repay the second amount in the currency of the second amount, notwithstanding this Clause 15.6(b).

Nothing in this Clause 15.6 shall be effective to create a charge.

15.7    Order of Distribution: If the amount received by the Agent from the Borrower on any date is less than the total sum remaining and/or becoming due under this Agreement on that date, the Agent shall apply that amount in or towards payment of the following sums in the following order:

Any such applications shall override any purported appropriation by any Person. For this purpose, the Agent may (if and to the extent necessary) convert one currency into another.

15.8    Refunding of Payments: The Agent shall not be obliged to (but may) make available to any Person any sum which it is expecting to receive for the account of that Person until it has been able to establish that it has received that sum. However, it may do so if it wishes. If and to the extent that it does so but it transpires that it had not then received the sum which it paid out:

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16.1    By the Borrower: The Borrower represents and warrants to and for the benefit of each other party to this Agreement, in relation to itself and (where applicable) its Material Subsidiaries, and in the case of 16.1(h) below, each member of the Group, as follows:

have been or will be when required (as applicable) taken, fulfilled and done other than such actions, conditions or things in connection with any laws or regulations on state aid.

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or result in the existence of, or oblige any member of the Group to create, any Security over those Assets other than as permitted under Clause 18.3 (Negative Pledge).

other than, in each case, an Excluded Default.

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16.2    Repetition: Each of the representations and warranties in Clauses 16.1(a) (Status) to 16.1(u) (Subordination of Claims) (other than Clause 16.1(1)(i), (ii) and (iii) (Information) will be repeated on each date on which an Advance is requested or made and on each date on which interest is payable pursuant to this Agreement, as if repeated by reference to the then existing circumstances, except as otherwise agreed by the Majority Lenders in their absolute discretion.

16.3    Qualifications to Warranties: The representations and warranties in Clauses 16.1(c)(ii) (Authorisations and Consents), 16.1(d)(i) (Non-Violation, etc.) and 16.1(e) (Obligations Binding) shall be subject to Reservations.

The Borrower undertakes that, so long as any Commitment remains available or any Advance remains outstanding under this Agreement:

17.1    Preparation of Accounts: The Borrower will ensure that all accounts to be delivered by it under this Agreement are prepared in such manner that Clause 16.1(i) (Accounts) would be complied with.

17.2    Audited Accounts: As soon as available and in any event within 120 days after the end of each of its financial years (beginning with the current one), the Borrower will deliver to the Agent enough copies for the Lenders of its annual report and audited consolidated accounts (including balance sheet, profit and loss and cash flow statements of the Borrower) as at the end of and for that financial year, together with copies of the related directors’ and auditors’ reports.

17.3    Semi-Annual Information: As soon as available and in any event within 90 days after the end of the first 6 months of each of its financial years (beginning with the current one), the Borrower will deliver to the Agent enough copies for the Lenders of its interim consolidated financial statements (which shall have been subject to limited review by the Borrower’s auditors) (including balance sheet, profit and loss and cash flow statements of the Borrower) for that 6 month period.

17.4    Quarterly Information: If at any time after the date of this Agreement the Borrower publishes quarterly consolidated financial statements, as soon as available and in any event within 60 days of the end of each quarter, the Borrower will deliver to the Agent enough copies for the Lenders of its interim consolidated financial statements for that quarter.

17.5    Monthly and Quarterly Information: If and for so long as the Borrower is not Investment Grade, as soon as the same become available, but in any event within 20 days after the end of each calendar month, commencing in October 2003 (and following the first anniversary date of this Agreement, within 20 days after the end of each calendar quarter) deliver to the Agent (in sufficient copies for each of the Lenders):

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17.6    Information to Shareholders or Creditors: At the same time as it is sent to its shareholders (or any class of its shareholders) or creditors, the Borrower will deliver to the Agent upon its request enough copies for the Lenders of any circular, document or other written information sent to its shareholders as a whole (or any class of its shareholders as a whole) or creditors as such.

17.7    Events of Default and Early Repayment Events: The Borrower will notify the Agent in writing of the occurrence of any Event of Default or Potential Event of Default (other than an Excluded Default) and any Early Repayment Event (and of any action taken or proposed to be taken to remedy it) promptly and in any event within 3 Business Days after becoming aware of it.

17.8    Compliance with Financial Covenants:

(ii)    in respect of its obligations under Clause 18.6(c) (Total Debt), within 20 days after the end of each relevant quarter; and

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(iii)    in any case within 14 days after any request made by the Agent from time to time,

the Borrower will deliver to the Agent a certificate signed on its behalf by the chief financial officer or a vice-president corporate funding of the Borrower:

17.9    Material Subsidiaries: With each set of accounts delivered by it under Clauses 17.2 (Audited Accounts), 17.3 (Semi-Annual Information) and 17.4 (Quarterly Information) (or, if no accounts are provided under Clause 17.4, with each quarterly update of the Liquidity Plan under Clause 17.5 (Monthly and Quarterly Information) and by reference to the financial information available to the Borrower in respect of the last quarter) and within 14 days after any request made by the Agent from time to time, the Borrower will deliver to the Agent a certificate:

17.10    Computation of Financial Covenants: The Borrower shall provide to the Agent, by no later than 30 November 2003, computations in respect of the financial covenants contained in Clause 18.6 (Financial Covenants) on the basis of the half year ending 30 September 2003.

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17.11    PwC Reports: If and for so long as the Borrower is not Investment Grade, the Borrower will deliver or procure to be delivered to the Agent (in sufficient copies for each of the Lenders) as soon as the same become available, but in any event:

17.12    PwC Additional Scope: The Borrower shall mandate PricewaterhouseCoopers to prepare and deliver a report covering those items listed in Schedule 13 (PwC Additional Scope) in accordance with the timetable and on the terms set out in that Schedule.

17.13    Other Information: The Borrower will promptly deliver to the Agent for distribution to the Lenders such other information relating to its financial condition or business and to the financial condition or business of any member of the Group as the Agent (or any Lender through the Agent) may from time to time reasonably request.

The Borrower undertakes, in relation to itself and, where applicable, each of its Material Subsidiaries and/or each member of the Group that, so long as any Facility remains available or any sum remains payable under this Agreement:

18.1    Maintenance of Corporate Existence: The Borrower and each of the Material Subsidiaries will:

except, in each case, where the failure to be in compliance with the foregoing does not or would not materially and adversely affect its business or undertaking.

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18.2    Ranking of Obligations: Its payment obligations under this Agreement rank and will at all times rank at least equally and rateably in all respects with all its unsecured and unsubordinated Indebtedness except as provided in Clause 2.5 (Subordination).

18.3    Negative Pledge: The Borrower will not, and will ensure that no other member of the Group will, create or have outstanding any Security on or over their respective Assets, except for:

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Lenders, the principal, capital or nominal amount secured by any such Security and outstanding at the time of acquisition may not be increased);

18.4    Disposals:

The Borrower will procure that no member of the Group will (whether by a single transaction or a number of related or unrelated transactions and whether at the same time or over a period of time) Dispose of all or any part of its assets other than Disposals made on arms’ length terms and at fair market value:

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in each case provided that disposals under paragraphs (iii) to (vii) and (ix) inclusive are only permitted so long as no Event of Default or Early Repayment Event has occurred which is continuing.

18.5    Change of Business:

18.6    Financial Covenants:

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For the purposes of this paragraph (b) only, it is expressly agreed that Consolidated Net Worth shall include the TSDDRA.

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For the purposes of this paragraph (c) only, it is expressly agreed that Total Debt shall be calculated excluding the TSDDRA.

For the purposes of this paragraph (d) only, it is expressly agreed that Total Net Debt shall be calculated excluding the TSDDRA.

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18.7    Restriction on Subsidiary Indebtedness: The Borrower shall procure that the financial debt of its Subsidiaries on a consolidated basis shall at no time represent more than 30% of Total Debt. For the avoidance of doubt, for these purposes the “financial debt” of Subsidiaries shall be calculated in the same manner as “financial debt” of the Borrower, as described in the definition of Total Debt.

18.8    Acquisitions and Mergers: The Borrower will procure that, except as permitted by the Majority Lenders:

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18.9    Insurances: The Borrower will ensure that there is in effect at all times, insurance cover over its Assets and business and those of its Material Subsidiaries of a type and in an amount which is consistent with good business practice in the relevant industry.

18.10    Loans: The Borrower will procure that no member of the Group will be the creditor of any Financial Commitments other than:

18.11    Intellectual Property: The Borrower will procure that it and the Material Subsidiaries will:

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failure to do so would have or could be reasonably expected to have a Material Adverse Effect and not discontinue the use of any of that Intellectual Property nor allow it to be put at risk by becoming generic or by being identified as disreputable if in each case to do so would have or could be reasonably expected to have a Material Adverse Effect; and

18.12    Compliance with Laws: The Borrower will, and shall ensure that each Material Subsidiary will, make all filings and request all Consents as are necessary or desirable in connection with its business and maintain and comply with (i) all applicable laws, regulations and Consents as are necessary or desirable in connection with its business, and (ii) any Environmental Law and any Environmental Authorisations, except, in each case, to the extent failure would not reasonably be expected in the opinion of the Majority Lenders to have a Material Adverse Effect.

18.13    Auditors: The Borrower will procure that neither it nor any Material Subsidiary will:

18.14    Arm’s Length Transactions: The Borrower will procure that no member of the Group will enter into any arrangement or transaction which is not on arm’s length terms in accordance with sound commercial practice and (except in order to implement the Strategic Plan and the Protocol) in the ordinary course of its business.

18.15    Joint Ventures: The Borrower will procure that no member of the Group will enter into or permit to subsist any joint venture, partnership or similar arrangement with any person, other than:

and no member of the Group shall make any investment or otherwise participate in an entity with unlimited liability.

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18.16    Cash Pooling: The Borrower will procure that no change is made to the cash pooling or other cash or treasury management operations of the Group as carried on at the date of this Agreement which would be likely to have a Material Adverse Effect.

18.17    Capital Expenditure: The Borrower will procure that net capital expenditure of the Consolidated Group for the 12 month period following the date of this Agreement does not exceed EUR 250,000,000 in aggregate (unless otherwise permitted by the Majority Lenders).

18.18    Pensions Schemes: The Borrower will procure that all material pension schemes of it and its Material Subsidiaries are fully funded to the extent required by law based on reasonable actuarial assumptions applicable in the jurisdiction in which the relevant pension scheme is maintained.

18.19    Protocol and Others: The Borrower undertakes:

18.20    Vendor Financing: The Borrower will procure that no new Vendor Financing is provided by any member of the Group after the date of this Agreement.

18.21    Off-Balance Sheet Undertakings: The Borrower will procure that no member of the Group will enter into any new commitment or assume any additional liability (contingent or actual) in respect of any Financial Commitments unless such commitment or assumption of liability is not contrary to any other provision hereunder.

18.22    Put Option: The Borrower undertakes not to grant any put option for the benefit of the purchaser nor any other option, right or arrangement having a similar effect in connection with the implementation of the disposal of T&D.

18.23    Stay of Action by Other Lenders: The Borrower undertakes to obtain, as soon as reasonably practicable, an undertaking in favour of the Borrower substantially on the terms of the provisions of Clause 27.3 (Stay of Action by the Lenders) from each of its lenders or other providers of Indebtedness (a Financier) which is not a party to this Agreement, and to deliver to the Agent promptly upon receipt a copy of such undertakings signed by each Financier.

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18.24    Subordination of Indebtedness to Subsidiaries: The Borrower shall ensure that:

18.25    Acquisition of ORAs and Share Capital: The Borrower undertakes not to purchase, redeem or otherwise acquire at any time any of the obligations remboursables en actions comprised in the ORA or any of its issued share capital.

18.26    Acquisition or Reimbursement of TSDD or TSDDRA: The Borrower undertakes not to purchase, redeem or otherwise acquire or repay at any time any of the titres comprised in the TSDD or the TSDDRA prior to (but may do so simultaneously with) the repayment in full and cancellation of this Facility, save that the Borrower shall be entitled at any time to reimburse in shares (remboursement en actions) any of the titres comprised in the TSDDRA.

18.27    No Subsidiary Guarantees in Favour of Borrower: The Borrower will procure that no member of the Group shall give any guarantee in respect of Indebtedness incurred by the Borrower in respect of which it is primarily liable.

18.28    Copies of TSDD and TSDDRA Terms and Conditions: The Borrower shall provide to the Agent on behalf of the Lenders copies of the terms and conditions of the TSDD and the TSDDRA as soon as practicable after the same are agreed.

19.    DEFAULT AND EARLY REPAYMENT

19.1    Events of Default: The occurrence of any of the following events shall constitute an Event of Default:

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19.2    Early Repayment Events: The following are Early Repayment Events:

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19.3    Cancellation/Acceleration: If at any time and for any reason (and whether within or beyond the control of the Borrower) any Event of Default or Early Repayment Event has occurred and is subsisting, the Agent, if so instructed by the Majority Lenders, shall by notice to the Borrower and without mise en demeure or any other judicial or extra-judicial step (but subject to the mandatory provisions of articles L.620-1 to L.628-3 of the French Code de Commerce) declare:

20.    DEFAULT INTEREST

20.1    Interest on Overdue Sums: If the Borrower does not pay any sum under this Agreement when due and payable, it shall (to the fullest extent permitted by law) pay interest on the amount from time to time outstanding in respect of that overdue sum for the period beginning on its due date and ending on the date of its receipt by the Agent (both before and after judgement) in accordance with this Clause 20. For the avoidance of doubt, this Clause 20.1 shall not apply to any Deferred Interest prior to the Final Maturity Date or such earlier date on which the Deferred Interest becomes due and payable. For the purpose of this Clause 20, if any payment is received by the Agent on the due date, but too late to be made available by the Agent on that due date to the Person(s) entitled to it under Clause 15.5 (Distribution to Lenders), that payment shall be deemed to be received on the next Business Day (but the Agent will give credit to the Borrower for any interest earned by the Agent on the relevant sum pending distribution to such Person(s)).

20.2    Default Interest Periods and Rates: Interest under this Clause 20 shall be calculated by reference to successive Default Interest Periods, each of which (other than the first, which shall begin on the due date) shall begin on the last day of the previous one. Each such Default Interest Period shall be of three months or such shorter period as the Agent may from time to time select, and the rate of interest applicable for all or any part of a particular Default Interest Period shall be the rate per annum equal to the Default Interest Rate for (or, as the case may be, for that part of) that Default Interest Period, except as follows:

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20.3    Payment and Compounding of Default Interest: Interest accrued under this Clause 20 shall be due on demand by the Agent but, if not previously demanded, shall be paid when due in accordance with Clause 8.5(b). If not paid when due, the interest shall be added to the overdue sum and itself bear interest accordingly, to the fullest extent permitted by French law, and only if such interest accrued on overdue amounts remains due (within the meaning of article1154 of the French Civil Code) for a period of at least one year.

21.    INDEMNITIES

21.1    Miscellaneous Indemnities: The Borrower shall on demand and, on receipt of written justification, indemnify the Agent, each Arranger and each Lender against any funding or other reasonable cost, loss, expense or liability sustained or incurred by it as a result of:

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21.2    Break Funding Costs: In the case of Clauses 21.1(a) (Miscellaneous Indemnities) and 21.1(c) (Miscellaneous Indemnities) above, the amount payable shall in any event include the amount (if any) by which:

is less than:

21.3    Currency Indemnity:

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21.4    Indemnities Separate: Each of the indemnities in this Agreement constitutes a separate and independent obligation from the other obligations in this Agreement, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by the Agent, any Arranger and/or any Lender and shall continue in full force and effect despite any judgment, order, claim or proof for a liquidated amount in respect of any sum due under this Agreement or any other judgment or order.

22.    THE AGENT AND ARRANGERS

22.1    Appointment of Agent: Each Lender irrevocably appoints the Agent to act as its agent for the purpose of this Agreement and authorises it to perform the functions specifically delegated to it by this Agreement and such other functions as are reasonably incidental. However, the Agent may not begin any legal action or proceeding in the name of a Lender without its consent. The relationship between the Agent and the Lenders is of agent and principal only. The Agent shall not be a trustee or fiduciary for any Lender, nor an agent, trustee or fiduciary for the Borrower, under or in relation to this Agreement.

22.2    Agent’s Duties: The Agent shall:

22.3    Agent’s Rights: The Agent may:

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22.4    Rights of Agent and Arrangers: The Agent and each Arranger (and, in the case of Clauses 22.4(d) (Rights of Agent and Arrangers) and, each of their respective Affiliates) may:

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22.5    Exoneration of Agent and Arrangers: Neither the Agent nor any Arranger nor any of their respective personnel or agents shall be:

None of the Arrangers shall have any duty, obligation or responsibility under or in connection with this Agreement.

22.6    Agent and Arrangers as Lenders: The Agent and each Arranger shall have the same rights and powers with respect to its Commitment and share of the Advances (if any) as any other Lender and may exercise those rights and powers as if it were not also acting as Agent or, as the case may be, as Arranger.

22.7    Non-Reliance on Agent and Arrangers: Each Lender confirms that it has itself been, and will at all times continue to be, solely responsible for making its own independent investigation and appraisal of the business, financial condition, prospects, creditworthiness, status and affairs of the Borrower or any Subsidiary of the Borrower and has not relied, and will not at any time rely, on the Agent and/or any Arranger and/or any other Lender:

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22.8    Indemnity to Arrangers and Agent: To the extent that the Borrower does not do so on demand or is not obliged to do so, each Lender shall on demand indemnify the Arrangers and the Agent in the proportion borne by its Outstandings to all the Outstandings at the relevant time (or, if there are then no Outstandings, in the proportion borne by its Commitment to the Total Commitments):

except in each case to the extent that they are sustained or incurred as a result of the faute lourde (gross negligence) or dol (wilful misconduct) of the Agent or any Arranger or any of their respective personnel or agents.

22.9    Resignation of Agent: Notwithstanding the irrevocable appointments in Clauses 22.1 (Appointment of Agent) and 22.11 (Transfer Notice), the Agent may resign at any time (after consultation with the Borrower) if it gives at least 7 days’ notice to the Borrower and the Lenders. However, no resignation shall be effective until the successor has been appointed and accepted its appointment in accordance with this Clause 22.9. The Agent may in its notice of resignation appoint any of its Affiliates with an office in Paris as its successor. If it does not do so, the Majority Lenders, after consultation with the Borrower, unless an event referred to in Clause 19.3 has occurred, may appoint a successor. If the relevant successor has not been so appointed and accepted its appointment within 15 days after the date of the notice of resignation, the resigning Agent may appoint any reputable bank or financial institution with an office in Paris (whether or not an Affiliate of the Agent) to be its successor. Any appointment of a successor must be in writing, signed by the Person(s) appointing that successor and delivered to that successor. Any acceptance of such appointment must be in writing, signed by the Person appointed and delivered to the

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Person(s) appointing that successor. The other parties to this Agreement shall be promptly informed of the acceptance by a successor Agent. Upon the successor accepting its appointment, the resigning Agent shall be automatically discharged from any further obligation under this Agreement and its successor and each of the other parties to this Agreement shall have the same rights and obligations among themselves as they would have had if the successor had been the original Agent party to this Agreement. The resigning Agent shall provide its successor with (or with copies of) such of its records as its successor requires to carry out its functions under this Agreement.

22.10    The Majority Lenders may, by giving 30 days’ prior written notice to the Agent, remove the Agent from its appointment as such hereunder. The Majority Lenders may appoint (after consultation with the Borrower) a successor Agent provided that such successor is a reputable bank or financial institution with an office in Paris. If the Lenders have not, within 30 days after such notice of removal, appointed a successor Agent which shall have accepted such appointment, the retiring Agent shall have the right to appoint (after consultation with the Borrower) a successor Agent, in accordance with Clause 22.9 (Resignation of Agent).

22.11    Transfer Notice: The Borrower, each Arranger and each Lender (except for a Lender voluntarily seeking the relevant transfer in accordance with Clause 26.3 (Transfer or Assignment by Lenders)) irrevocably authorise the Agent to sign each Transfer Notice on their behalf.

22.12    Agency Department: In the exercise of its functions the Agent shall be treated as acting through an agency department separate from any of its other departments or services, and any information received by such other departments or services will not be treated as known by the Agent unless communicated to it in its capacity as such.

23.    SET-OFF/PRO RATA SHARING

23.1    Set-Off: The Borrower authorises any other party to this Agreement (but only so long as an Event of Default, a Potential Event of Default or an Early Repayment Event has occurred and is continuing) to apply (without prior notice) any credit balance (whether or not then due) to which it is at any time beneficially entitled on any account at, any sum held to its order by and/or any liability to it of, any office of that party in or towards satisfaction of any sum then due from it to that party under this Agreement and unpaid and, for that purpose, to convert one currency into another at the rate of exchange obtained by such party in accordance with its usual practice (but so that nothing in this Clause 23.1 shall be effective to create a charge). No party shall be obliged to exercise any of its rights under this Clause 23.1, which shall be without prejudice and in addition to any right of set-off, combination of accounts, lien or other right to which it is at any time otherwise entitled (whether by operation of law, contract or otherwise).

23.2    Pro Rata Sharing: If at any time the proportion received or recovered (whether by direct payment, by exercise of any right of set-off, combination of accounts or lien, or otherwise) by any Lender (the Recovering Lender) in respect of the total sum which has become due to it from the Borrower under this Agreement

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before that time exceeds the proportion received or recovered by the Lender(s) receiving or recovering the smallest proportion (if any), then: