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Facility Agreement

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Title:

Facility Agreement

Entities:

JPMorgan Chase Bank; Lafarge; Lafarge SA

Date:

2006

Size:

168KB total

Price:

$55

ID:

#1622208

► Loans ► Facility Agreements
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$2,800,000,000 Credit Facility, dated February 5, 2006, with BNP Paribas and JPMorgan plc

CONFORMED COPY

U.S. $2,800,000,000

FACILITY AGREEMENT

Dated 5 February 2006

for

LAFARGE S.A.

arranged by
BNP PARIBAS

and

J.P. MORGAN PLC

with

BNP PARIBAS
acting as Agent

Message

CONTENTS

CLAUSE		PAGE

SECTION 1
INTERPRETATION

1.	DEFINITIONS AND INTERPRETATION	1

SECTION 2
THE FACILITY

2.	THE FACILITY	12
3.	PURPOSE	12
4.	CONDITIONS PRECEDENT	13

SECTION 3
UTILISATION

5.	UTILISATION	15
6.	OPTIONAL CURRENCIES	16

SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION

7.	REPAYMENT	17
8.	PREPAYMENT AND CANCELLATION	17

SECTION 5
COSTS OF UTILISATION

9.	INTEREST	21
10.	INTEREST PERIODS	22
11.	CHANGES TO THE CALCULATION OF INTEREST	23
12.	FEES	24

SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS

13.	TAX GROSS UP AND INDEMNITIES	25
14.	INCREASED COSTS	28
15.	OTHER INDEMNITIES	29
16.	MITIGATION BY THE LENDERS	30
17.	COSTS AND EXPENSES	30

SECTION 7
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

18.	REPRESENTATIONS	32
19.	INFORMATION UNDERTAKINGS	34
20.	GENERAL UNDERTAKINGS	36
21.	EVENTS OF DEFAULT	39

SECTION 8
CHANGES TO PARTIES

22.	CHANGES TO THE LENDERS	42
23.	CHANGES TO THE BORROWER	45

-i-

CLAUSE		PAGE

SECTION 9
THE FINANCE PARTIES

24.	ROLE OF THE AGENT AND THE MANDATED LEAD ARRANGERS	46
25.	CONDUCT OF BUSINESS BY THE FINANCE PARTIES	50
26.	SHARING AMONG THE FINANCE PARTIES	50

SECTION 10
ADMINISTRATION

27.	PAYMENT MECHANICS	53
28.	SET-OFF	55
29.	NOTICES	55
30.	CALCULATIONS AND CERTIFICATES	56
31.	PARTIAL INVALIDITY	56
32.	REMEDIES AND WAIVERS	57
33.	AMENDMENTS AND WAIVERS	57

SECTION 11
GOVERNING LAW AND ENFORCEMENT

34.	GOVERNING LAW	58
35.	ENFORCEMENT - JURISDICTION OF THE FRENCH COURTS	58

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THE SCHEDULES

SCHEDULE		PAGE

SCHEDULE 1 The Original Lenders		59
SCHEDULE 2 Conditions precedent		60
SCHEDULE 3 Requests		62
SCHEDULE 4 Mandatory Cost formulae		65
SCHEDULE 5 Form of Transfer Agreement		68
SCHEDULE 6 Timetables		70
SCHEDULE 7 Form of Term Out Notice		71

-iii-

THIS AGREEMENT is dated 5 February 2006 and made between:

(1)	LAFARGE S.A., a company registered in Paris, France with Commerce Registry Number B 542 105 572 (the Borrower);

(2)	BNP Paribas and J.P. Morgan plc (whether acting individually or together the Mandated Lead Arrangers);

(3)	THE FINANCIAL INSTITUTIONS listed in Schedule 1 as lenders (the Original Lenders); and

(4)	BNP Paribas as agent of the other Finance Parties (the Agent).

IT IS AGREED as follows:

SECTION 1

INTERPRETATION

1.	DEFINITIONS AND INTERPRETATION

1.1	Definitions

	In this Agreement:

	Acquisition means the acquisition of Shares pursuant to the Offer, open market or other purchases or any squeeze-out or compulsory acquisition by way of short-form merger or statutory amalgamation.

	Acquisition Loan means any Loan during the Certain Funds Period made solely for purposes specified in paragraph (a) of Clause 3.1 (Purpose).

	Additional Cost Rate has the meaning given to it in Schedule 4 (Mandatory Cost formulae).

	Affiliate means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.

	Agent means the Facility Agent.

	Agents Spot Rate of Exchange means the Agents spot rate of exchange for the purchase of the relevant currency with the Base Currency in the London foreign exchange market at or about 11:00 a.m. on a particular day.

	Agreed Form if it is in a form initialled by or on behalf of the Borrower and the Mandated Lead Arrangers on or before the signing of this Agreement for the purpose of identification.

	Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.

	Availability Period means the period from and including the date of this Agreement to and including the earlier of:

	(a)	the date falling one Month prior to the Initial Termination Date; and

	(b)	the Term Out Date.

	Available Commitment means a Lenders Commitment minus:

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	(a)	the Base Currency Amount of its participation in any outstanding Loans; and

	(b)	in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Revolving Loans that are due to be made on or before the proposed Utilisation Date,

other than that Lenders participation in any Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date.

Available Facility means the aggregate for the time being of each Lenders Available Commitment.

Base Currency or U.S.$ means United States dollars.

Base Currency Amount means, in relation to a Loan, the amount specified in the Utilisation Request delivered by the Borrower for that Loan (or, if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Agents Spot Rate of Exchange on the date which is three Business Days before the Utilisation Date or, if later, on the date the Agent receives the Utilisation Request) adjusted to reflect any repayment or prepayment of the Loan.

Basel II Standards has the meaning given to it in Clause 14.3 (Exceptions).

Break Costs means the amount (if any) by which:

(a)	the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Break Costs Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Break Costs Unpaid Sum, had the principal amount or Break Costs Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

(b)	the amount which that Lender would be able to obtain by placing an amount equal to the principal amount of the Loan or Break Costs Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

Break Costs Unpaid Sum means the principal amount of any Loan unpaid on its due date together with accrued interest (excluding any interest accrued pursuant to Clause 9.3 (Default Interest).

Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Paris and London and:

(a)	(in relation to any date for payment or purchase of euro) any TARGET Day; or

(b)	(in relation to any date for payment or purchase of a currency other than euro) the principal financial centre of the country of that currency.

Certain Funds Default means a Default arising under or in connection with one of the following Clauses:

(a)	Clause 21.1 (Non-payment);

(b)	Clause 21.3 (Other obligations) as it relates to:

	(i)	Clause 20.3 (Negative pledge); or

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	(ii)	Clause 20.10 (The Offer) (other than paragraph (b) (ii));

(c)	Clause 21.4 (Misrepresentation) as it relates to:

	(i)	Clause 18.1 (Status);

	(ii)	Clause 18.2 (Binding obligations);

	(iii)	Clause 18.3 (Non-conflict with other obligations);

	(iv)	Clause 18.4 (Power and authority);

	(v)	Clause 18.5 (Validity); or

	(vi)	Clause 18.16 (The Offer), (excluding any misrepresentation in so far as it relates to paragraph (b) (ii) of Clause 20.10 (The Offer)),

	in each case as it relates to the Borrower;

(d)	Clause 21.6 (Insolvency) or 21.7 (Insolvency proceedings) as it relates to the Borrower; or

(e)	Clause 21.9 (Invalidity or Repudiation).

Certain Funds Period means the period from and including the date of this Agreement to and including the earliest of:

(a)	the date on which the Offer is withdrawn or lapses; and

(b)	31 May 2006;

Commitment means:

(a)	in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading Commitment in Schedule 1 (The Original Lenders) and the amount of any other Commitment transferred to it under this Agreement; and

(b)	in relation to any other Lender, the amount in the Base Currency of any Commitment transferred to it under this Agreement;

to the extent not terminated, cancelled, reduced or transferred by it under this Agreement.

Confidentiality Undertaking means a confidentiality undertaking substantially in a form agreed between the Borrower and the Agent.

Environmental Approvals means all authorisations of any kind required under Environmental Laws to which the Borrower or any Principal Subsidiary is subject at any time.

Environmental Law means all legislation, regulations or orders (insofar as such regulations or orders have the force of law) to the extent that they relate to the protection or impairment of the Environment (whether or not in force at the date of this Agreement).

Existing Facility means the U.S.$700,000,000 facility of the Target dated 12 September 2005.

EURIBOR means, in relation to any Loan in Euro:

(a)	the applicable Screen Rate; or

(b)	(if no Screen Rate is available for the Interest Period of that Loan) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request quoted by the Reference Banks to leading banks in the European interbank market,

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	as of the Specified Time on the Quotation Day for the offering of deposits in Euro for a period equal to or comparable to the Interest Period of the relevant Loan.

	Euro or means the single currency of the European Union.

	Event of Default means any event or circumstance specified as such in Clause 21 (Events of Default).

	Facility means the multicurrency revolving or, after the Term Out Date, term loan facility made available under this Agreement as described in Clause 2 (The Facility).

	Facility Amount means U.S.$2,800,000,000.

	Facility Office means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days written notice) as the office or offices through which it will perform its obligations under this Agreement.

	Fee Letter means any letter or letters dated on or about the date of this Agreement between the Mandated Lead Arrangers and the Borrower (or the Agent and the Borrower) setting out any of the fees referred to in Clause 12 (Fees).

	Final Termination Date means (a) the Initial Termination Date; or (b) following an exercise of the Term-Out Option, the date determined in accordance with Clause 7.2 (Term Out Option).

	Finance Document means this Agreement, any Fee Letter, the Mandate Letter and any other document designated as such by the Agent and the Borrower.

	Finance Party means the Agent, the Mandated Lead Arrangers or a Lender.

	Financial Indebtedness means any indebtedness for or in respect of:

	(a)	moneys borrowed;

	(b)	any amount raised by acceptance under any acceptance credit facility;

	(c)	any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

	(d)	the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance lease;

	(e)	receivables sold or discounted in respect of which there is recourse in whole or in part (but, if in part, to the extent of such recourse);

	(f)	any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing and the main purpose of which is the financing of business operations or capital requirements;

	(g)	for the purpose of Clause 21.5 (Cross-Default) only, the net marked to market amount of any currency swap or interest swap, cap, collar arrangements or any other derivative instrument;

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	(h)	any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution in respect of the indebtedness of any member of the Group, except for any trade letters of credit; and

	(i)	the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.

	Force Majeure Event means fire, flood, earthquake or other natural disaster or nationalisation, war, sabotage, terrorism, insurrection or similar.

	GAAP means generally accepted accounting principles and standards in France.

	Group means the Borrower and its consolidated Subsidiaries for the time being.

	Holding Company means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.

	Information Package means the document in the form approved by the Borrower concerning the Group which, at its request and on its behalf, is to be prepared in relation to this transaction and made available by the Mandated Lead Arrangers to selected financial institutions prior to the Syndication Date.

	Initial Termination Date means the date which is 364 days after the date of this Agreement.

	Interest Period means, in relation to a Loan, each period determined in accordance with Clause 10 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 9.3 (Default interest).

	Launch of Syndication means the date on which invitations are sent by the Mandated Lead Arrangers to prospective Lenders as part of primary syndication.

	Lender means:

	(a)	any Original Lender; and

	(b)	any bank or financial institution, which has become a Party in accordance with Clause 22 (Changes to the Lenders),

	which in each case has not ceased to be a Party in accordance with the terms of this Agreement.

	LIBOR means, in relation to any Loan (other than a Loan in Euro):

	(a)	except in respect of a Settlement Loan, the applicable Screen Rate; or

	(b)	(in respect of a Settlement Loan or if no Screen Rate is available for the currency or Interest Period of the relevant Loan) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request quoted by the Reference Banks to leading banks in the London interbank market,

	as of the Specified Time on the Quotation Day for the offering of deposits in the currency of that Loan and for a period equal to or comparable to the Interest Period for that Loan.

	Loan means a Revolving Loan or a Term Loan.

	Majority Lenders means:

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	(a)	until the Total Commitments have been reduced to zero, a Lender or Lenders whose Commitments aggregate more than 66²/₃% of the Total Commitments (or, if the Total Commitments have been reduced to zero and there are no Loans outstanding, aggregated more than 66²/₃% of the Total Commitments immediately prior to the reduction); or

	(b)	at any other time, a Lender or Lenders whose participations in the Loans then outstanding aggregate more than 66²/₃% of all the Loans then outstanding.

	Mandate Letter means the letter dated on or about the date hereof between the Borrower and the Mandated Lead Arrangers relating among other things to their appointment as Mandated Lead Arrangers.

	Mandatory Cost means the percentage rate per annum calculated by the Agent in accordance with Schedule 4 (Mandatory Cost formulae).

	Margin means 0.225 per cent. per annum.

	Material Adverse Effect means any effect or circumstance:

	(a)	materially adverse to (i) the ability of the Borrower to perform its payment obligations under any Finance Document or (ii) the financial condition of the Group taken as a whole; and/or

	(b)	which results in any Finance Document not being legal, valid and binding on, and enforceable substantially in accordance with its terms against the Borrower, in a manner and to an extent reasonably considered by the Majority Lenders to be materially prejudicial to the ability of the Borrower to perform its payment obligations under any Finance Document.

	Month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

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