exv10w35



 





Exhibit 10.35




CREDIT FACILITIES




THE UNDERSIGNED:




SOCIÉTÉ GÉNÉRALE, a société anonyme with a share capital of 547,086,336.25
euros, having its registered office at 29 Boulevard Haussmann, 75009 Paris,
with sole identification number 552 120 222 RCS PARIS, represented by Mr.
Antoine LARUE DE CHARLUS, in his capacity of Manager of La Défense Entreprise
Branch,




(hereinafter the “Bank”)




AND:




The Company BUSINESS OBJECT SA, a corporation with a share capital of
9,576,892,90 euros, having its registered office at 157-159 rue Anatole France,
92300 Levallois-Perret , with sole identification number 379 821 994 RCS
Nanterre, represented by Mr. Bernard Liautaud, acting as president and chief
executive officer of Business Objects,




(hereinafter the “Client”)




HEREBY AGREE AS FOLLOWS:




ARTICLE 1 - AMOUNT, DURATION AND PURPOSE OF THE CREDIT FACILITIES




The Bank hereby grants to the Client credit facilities, which can be used in
EUR, USD or CAD in a maximum amount of 100,000,000 (EUR) (one hundred million
euros) as of the date of signature of this Agreement and until December 2nd,
2005, the date by which these credit facilities shall be fully repaid in
capital and interest (the “credit facilities repayment date”).




These credit facilities consist of:





	•	 	  A credit facility of Euro 60 million to satisfy general corporate
financing requirements
	 
	•	 	  A bridge loan of Euro 40 million to acquire companies, in waiting
of various forthcoming medium or long term financings




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ARTICLE 2 - DRAWINGS




2.1 - Definition of the Available Amount




The “Available Amount” shall mean, on a given date, the maximum amount of the
credit facilities as defined in Article 1, reduced by the aggregate of all
outstanding Drawings as of the said date. For the purpose of determining the
Available Amount, the aggregate amount of all Drawings made in USD
(respectively in CAD) then outstanding shall be converted in EUR by using the
exchange rate USD/EUR (respectively CAD/EUR) as published by the Banque de
France at or about 4:30 p.m (Paris Time) on the Banking Day preceding the Day
when such determination is to be made.




The term “Drawings” shall mean drawings made by the Client in accordance with
the provisions of this Agreement.




2.2 - Conditions precedent to each Drawing




The Bank’s obligation to make any Drawing available to the Client is also
subject to the following conditions being fulfilled:




     • the amount of the Drawing shall be within the limit of the Available
Amount, and its maturity date shall not be later than the credit facilities
repayment date;



     • there has not occurred any event constituting, or which might constitute
an acceleration event.



2.3 - Drawing notice




Each Drawing shall be made on a date corresponding to a Banking Day, and notice
thereof shall reach the Bank by 10 a.m. (Paris time) at the latest two Banking
Days before the date of making funds available, by receipt of a Drawing notice,
in the form of Appendix 1, sent if need be, by fax or by mail (which shall
constitute evidence of instructions received). Applications for renewal of
Drawings shall be made with the same notice period.




“Banking Day” shall mean a day (other than a saturday or sunday) on which the
TARGET system operates, and on which banks are open simultaneously in the
euro-zone, in London and in New-York.




The Drawing notice, duly signed by the Client’s authorized representatives,
irrevocably commits the Client, which is required to make the Drawing on the
date stipulated in the said Drawing notice.




2.4 - Duration and amount of each Drawing




These credit facilities, which are granted on a 364-day basis, may be drawn
through Drawings in EUR, USD or CAD with a duration of ten days to twelve
months (yet not exceeding 364 days), any other duration being excluded.




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Each Drawing in EUR shall be in an amount equal to at least 1,000,000 EUR (one
million euro) or a whole number multiple of 1,000,000 EUR (one million euro).
Each Drawing in USD shall be at least in an amount rounded up or down to the
nearest whole number of the countervalue in USD of 1,000,000 EUR (one million
euro) or more by tranches of 1,000,000 EUR (one million euro). Each Drawing in
CAD shall be at least in an amount rounded up or down to the nearest whole
number of the countervalue in CAD of 1,000,000 EUR (one million euro) or more
by tranches of 1,000,000 EUR (one million euro).




Each Drawing shall be repaid on the last Banking Day of the Drawing period,
except in case of renewal(s), in which case repayment shall occur on the last
day of the last renewal period.




All the Drawings must be repaid by the credit repayment date.




ARTICLE 3 - FEES - INTEREST - PAYMENTS




3.1 - Commitment fee




A commitment fee of 0.150 % per annum, calculated on the Available Amount on
the basis of a 360-day year, shall be paid by the Client to the Bank every
quarter on the first Banking Day of the quarter, and for the first time on
December 3rd, 2004.




3.2 - Interest on the Drawings




3.2.1 – Drawings in EUR




The interest rate applicable to this credit for Drawings made in EUR is the
EURIBOR corresponding to the Drawing period or to the Drawing renewal period,
as it is published on the TELERATE screen two Banking Days before funds are
made available, or before the Drawing renewal, plus a margin of 0.50% per
annum. For Drawings the duration of which is less than one month, the one month
EURIBOR shall be retained.




The interest shall be calculated on the basis of the exact number of days of
the Drawing period, with a divisor of 360.




Interest shall be paid on the last Banking Day of the Drawing period. In case
of a Drawing renewal, the interest accrued during the renewal period shall be
paid on the last Banking Day of the period of the said renewal. In case of a
Drawing of more than six months, the interest corresponding to a six-month
period shall be paid at the end of the said period, the balance being paid on
the last Banking Day of the Drawing period.




3.2.2 – Definition of EURIBOR




EURIBOR means a rate per annum determined by the Bank and notified to the
Client. This rate will be applied to an outstanding amount in EUR for a
particular period. It will be determined as follows:




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EURIBOR will be the Screen Rate for deposits in EUR for that period. This rate
will be determined at or about 11.00 a.m (Brussels time) on the rate fixing
date relating to the first day of the period.




“Screen Rate” means the rate shown on Telerate Page 248, or if not available,
Reuters Page EURIBOR 01.




3.2.3 – Drawings in USD or CAD




The interest rate applicable to this credit for Drawings made in USD or CAD is
the LIBOR corresponding to the Drawing period or to the Drawing renewal period,
as it is published two Banking Days before funds are made available, or before
the Drawing renewal, plus a margin of 0.5 % per annum. For Drawings the
duration of which is less than one month LIBOR shall be retained.




The interest shall be calculated on the basis of the exact number of days of
the Drawing period, with a divisor of 360.




Interest shall be paid on the last Banking Day of the Drawing period. In case
of a drawing renewal, the interest accrued during the renewal period shall be
paid on the last banking Day of the period of the said renewal. In case of a
Drawing of more than six months, the interest corresponding to a six-month
period shall be paid at the end of the said period, the balance being paid on
the last Banking Day of the Drawing period.




3.2.4 Definition of LIBOR




LIBOR means the London Interbank Offered Rate for the USD or the CAD as
the case may be, and for a period equivalent to the Drawing period or the
renewal period in question, as published by the British Bankers Association on
the TELERATE screen (now on p.3750 LIBO) at or about 11.00 a.m (London time).




3.3 - Interest on late payments




3.3.1 Amounts in EUR




All amounts in EUR due under this Agreement shall bear interest from the date
of their maturity (whether accelerated or not), until their actual payment,
without any prior demand, at the one-day EONIA as published daily, increased by
2% and calculated on a daily basis.




EONIA means the EURO Over Night Index Average. This rate is calculated by the
European Central Bank and published by the European Banking Federation on page
247 of the TELERATE screen.




The interest shall be capitalized if it remains due for a full year.




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3.3.2 Amounts in USD or CAD




All amounts in USD or CAD due under this Agreement shall bear interest from the
date of their maturity (whether accelerated or not), until their actual
payment, without any priour demand, at the six-month LIBOR as published daily,
increased by 2% and calculated on a daily basis.




The interest shall be capitalized if it remains due for a full year.




3.4. – Continuity clause




Where a variable rate contained in this Agreement has been altered, either in
its definition or application, or where such rate has been abolished and
replaced by another similar rate, or where a modification is made in the body
publishing such rate or in the method of publication, the modified or
substitued rate shall automatically apply.




3.5. – Front end fee




A front end fee of Euro 10,000 (0.01 % of the total credit) shall be paid by
the Client to the Bank at the date of signature of these credit facilities,
that is to say on December 3rd, 2004.




3.6. – Place of payment and currency




3.6.1

All Payments to the Bank under this Agreement shall be made to the Société
Générale branch in “La Défense Entreprises”




3.6.2

Drawings in EUR: The Client irrevocably authorises the Bank to debit from its
account held by said branch (number 30003 04250 1520186782 21) all amounts in
EUR necessary for the payment of all sums due in EUR under this Agreement.




3.6.3

Drawings in USD: The Client irrevocably authorises the Bank to debit from its
account held by said branch (number 30003 04250 3020186782 62) all amounts in
USD necessary for the payment of all sums due in USD under this Agreement.




3.6.4

Drawings in CAD: The Client irrevocably authorises the Bank to debit from its
account held by said branch (number 30003 04250 4520186782 06) all amounts in
CAD necessary for the payment of all sums due in CAD under this Agreement.




3.7. – Effective global rate




On the assumption that the credit facilities are fully drawn in EUR until the
credit facilities repayment date through 3-month renewable Drawings, under the
financial conditions set forth in this Agreement and on the assumption that the
rate of the 3-month EURIBOR last published




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on the date of signature of this Agreement is 2.176% per annum, the Bank
informs the Client, as an illustration, that the period rate for a 3-month
period is, on this assumption, 0.7189%. Thus the effective global rate (taux
effectif global), which is the annual rate proportional to the period rate, is
2.88% per annum.




On the assumption that the credit facilities are fully drawn in USD until the
credit repayment date through 3-month renewable Drawings, under the financial
conditions set forth in this Agreement and on the assumption that the rate of
the 3-month LIBOR last published on the date of signature of this Agreement is
2.39% per annum, the Bank informs the Client, as an illustration, that the
period rate for a 3-month period is, on this assumption, 0.7731%. Thus the
effective global rate (taux effectif global), which is the annual rate
proportional to the period rate, is 3.09% per annum.




On the assumption that the credit facilies are fully drawn in CAD until the
credit repayment date through 3-month renewable Drawings, under the financial
conditions set forth in this Agreement and on the assumption that the rate of
the 3-month LIBOR last published on the date of signature of this Agreement is
2.69% per annum, the Bank informs the Client, as an illustration, that the
period rate for a 3-month period is, on this assumption, 0.8492%. Thus the
effective global rate (taux effectif global), which is the annual rate
proportional to the period rate, is 3.40% per annum.




Only the drawdown of the credit facilities can permit the calculation of the
effective global rate applicable to each drawing.




ARTICLE 4 - PREPAYMENT




The Client shall not be entitled to prepay one or several outstanding Drawings
without the Bank’s prior approval or as otherwise stipulated in this Agreement.




ARTICLE 5 - CHANGES IN CIRCUMSTANCES





	5.1	 	If, following a new legislative or regulatory provision or the
interpretation thereof by a competent authority, whether the said
provision or authority be French, European or foreign, it should become
illegal or impossible for the Bank to maintain its participation in these
credit facilities, it shall be automatically terminated and the Client
shall prepay all amounts due in capital, interest and fees, increased by
all expenses and charges, if any, incurred by the Bank as a result of the
said prepayment.
	 
	5.2	 	If, following a new legislative or regulatory provision or the
interpretation thereof by a competent authority, whether the said
provision or authority be French, European or foreign, the conditions of
the Bank’s participation in this credit should be impaired, the Bank shall
inform the Client in writing, indicating the estimated amount of the
increased cost of its participation or of the reduction of its
remuneration in connection with this Agreement, as well as the required
compensation, together with supporting evidence thereof.




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	 	 	The Client and the Bank, at the latter’s initiative, shall then consult each
other within the shortest time and shall negotiate, for a maximum period of
[30] calendar days as from the date of the said notice, with a view to
reaching a solution to deal with the situation.
	 
	 	 	In case of disagreement at the end of the consultation period, the Client
shall, within a maximum period of [30] Banking Days following the last day
of the said period of [30] days, decide:






	 	•	 	to ask the Bank to maintain these credit facilities, in which case it
shall undertake to bear all additional cost incurred by the Bank, as
from the date on which the said cost is being incurred, or
	 
	 	•	 	to terminate these credit facilities by prepaying all amounts due in
capital, interest and fees, increased by all expenses and charges, if
any, incurred by the Bank as a result of the said prepayment
(including, upon presentation of supporting evidence thereof, the
replacement cost, if any, of the funds on the prepayment date).





ARTICLE 6 - REPRESENTATIONS AND UNDERTAKINGS




6.1 - Representations




The Client represents that:





	6.1.1	 	since the closeout date of the last financial year, there has not
occurred any event that could have a material adverse effect on the
Client’s business, assets or economic, financial or legal situation that
has not been disclosed to the Bank;
	 
	6.1.2	 	the financial documents remitted to the Bank in connection with this
operation are accurate, have been prepared pursuant to generally accepted
accounting principles, and offer a true and fair view of the Client’s
results for each financial year ;
	 
	6.1.3	 	the signature and performance of this Agreement have been duly
authorized by the Client’s corporate authorities and do not require any
authorization from any competent authority that has not been obtained;
	 
	6.1.4	 	the signature and performance of this Agreement by the Client do not
violate its constitutive documents nor any undertaking which is binding
upon it and do not violate any applicable law or regulation;
	 
	6.1.5	 	this Agreement is, and shall remain, a valid undertaking binding on it
in accordance with its terms.





6.2 - Undertakings




So long as this Agreement shall remain in force, the Client shall :




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	6.2.1	 	inform the Bank within two weeks of any event likely to have a material
adverse effect on the value of its assets or on its ability to repay these
credit facilities or of any event likely to substantially increase its
general indebtedness;
	 
	6.2.2	 	promptly supply the Bank, at its demand, with any document or
information concerning its economic, accounting and financial situation
that the Bank may reasonably request ;
	 
	6.2.3	 	supply the Bank, as soon as they are drawn up and within a maximum
period of six months following the end of each financial year, with its
annual balance sheets, income statements and all related documents
required by law, together with the auditors’ reports.
	 
	6.2.4	 	not grant any mortgage, lien, pledge, security interest or other rights
whatsoever in respect of all or part of its existing or future assets or
revenues, as security for any existing or future debt for money borrowed
with a term that is less than or identical to the term of this Agreement
or as security for any existing or future undertaking to any person
whatsoever as guarantor or surety , without granting the Bank the right to
participate equally and ratably in such security or granting the Bank
security that the Bank deems to be equivalent thereto.





ARTICLE 7 – VOLUNTARY CANCELLATION BY THE CLIENT




The Client may, without penalty or extra cost, by giving not less than one
Banking Day prior written notice to the Bank, ask for the reduction of the
credit facilities by a minimum amount of 5,000,000 EUR (five million euro) or a
multiple of 5,000,000 EUR (five million euro) provided that the amount of the
reduction does not exceed the Available Amount.




Any reduction shall be definitive so that the amount of the credit facilities
shall be reduced by an amount equivalent to the amount of such reduction.




ARTICLE 8 – EVENTS OF DEFAULT





	8.1	 	If one of the following events should occur:
	 
	8.1.1	 	failure by the Client to pay on due date any amount payable under this
Agreement ;
	 
	8.1.2	 	failure by the Client to perform any of its obligations or undertakings
under this Agreement;
	 
	8.1.3	 	any representation or statement made by the Client in connection with
this Agreement was inaccurate on the date of signature or ceases to be
accurate;
	 
	8.1.4	 	the Client ceases to carry on its business or becomes subject to
bankruptcy proceedings or judicial winding up or materially misbehaves or
its situation becomes irremediably compromised;
	 
	8.1.5	 	Client’s merger, splitting up, voluntary winding up or dissolution;




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	8.1.6	 	occurrence of any event that might have a material adverse effect on the
Client’s business, assets or economic and financial situation; the Bank
shall be entitled (a) to demand immediate repayment of all amounts due
hereunder, by sending to the Client a notice by fax confirmed by same day
registered mail with acknowledgement of receipt to that effect and/or (b)
refuse to make available any further Drawing requested by the Client upon
receipt by the Client of the said fax. The bank accept an extension of 10
days for 8.1.1, and 30 days for 8.1.2 and 8.1.6.
	 
	8.2	 	The said notice shall mention the Bank’s intention to apply the
provisions of said Article 8.The Bank shall not be required to perform any
other formality nor apply to a court for an acceleration order. Payment or
regularizations that shall occur after the said notice shall not prevent
the said acceleration.





ARTICLE 9 - TAXES AND EXPENSES





	9.1	 	All payments to be made by the Client under of this Agreement shall be
made free and clear of any taxes, withholdings or deductions of any nature
whatsoever, whether existing or future.
	 
	9.2	 	All expenses incurred by the Bank in connection with the performance of
this Agreement, including in case of default, shall be borne by the
Client. All expenses and legal fees incurred by the Bank to collect any
amounts due to it shall be borne by the Client as well.





ARTICLE 10 - NOTICES




Any communication between the parties hereto in connection with this Agreement
shall be made by telex or mail, and confirmed by fax to the following
addresses:




	 	 	 
	- for the Client :

	 	Mr. Bernard LIAUTAUD or Mr. Jim TOLONEN
	

	 	157-159 rue Anatole France, 92300 LEVALLOIS-PERRET
	

	 	Telephone:                    
	

	 	Fax:                                       
	

	 	Mail:                                       
	 
	 	 
	- for the Bank: :

	 	Société Générale
	

	 	La Défense Entreprises, 5 place de la pyramide
	

	 	92088 Paris la Défense Cedex
	

	 	Gérard BARGER or Mylène YAECHE
	

	 	Telephone: 01 46 96 57 13
	

	 	Fax: 01 46 96 57 09
	

	 	Mail: Gerard.Barger@socgen.com







or such other address as the addressee party may later indicate in writing.




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ARTICLE 11 - GOVERNING LAW AND CHOICE OF JURISDICTION




This Agreement shall be governed by the laws of France. All disputes arising
out or in connection with its validity, interpretation or performance shall be
submitted to the courts in Paris with jurisdiction, provided however that the
Bank, and the Bank alone, in whose favour such attribution has been granted,
shall have the option of bringing such proceedings before any other courts with
jurisdiction.




ARTICLE 12 - ENTRY INTO FORCE




This Agreement shall enter into force on the day of its signature.




ARTICLE 13 - ACT RELATIVE TO DATA PROCESSING AND LIBERTIES (ARTICLES 27 AND 31)
AND PROFESSIONAL SECRECY




The nominal data collected under this document are mandatory in order to
process this transaction. They – as well as those subsequently
collected – are
intended for Société Générale which, except if refused by the client for
legitimate reasons, is expressly authorised to store them in electronic data
bases, to use them and to communicate them for the same purposes to legal
entities of its group, to its brokers and insurers and to third parties or
subcontractors for administrative purposes.




The client can refuse, at no cost for it, that the date concerning itself are
used for canvassing purposes. Access, rectification and refusal rights can be
exercised at the branch having collected the information.




	 	 	 
	

	 	Made in Levallois-Perret, on December 3rd, 2004
	 
	 	 
	

	 	in 3 copies







	 	 	 
	

	 	December 8, 2004
	 
	 	 
	/s/ Antoine Larue de Charlus

	 	/s/ Bernard Liautaud                   
	For SOCIÉTÉ GÉNÉRALE

	 	For BUSINESS OBJECT SA







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Appendix 1




FORM OF DRAWING NOTICE TO BE ISSUED BY THE CLIENT




	 	 	 
	

	 	Société Générale
	

	 	La Défense Entreprises
	

	 	5, place de la pyramide
	

	 	92088 Paris la Défense Cedex
	 
	 	 
	

	 	Attention : Gérard BARGER
	

	 	or Mylène YAECHE
	 
	 	 
	

	 	Date :                                       







Gentlemen :




We refer to the credit agreement dated                    entered into between
BUSINESS OBJECT SA and Société Générale for an amount of EUR                   
(hereinafter the “Credit Agreement”).




We hereby give you notice that pursuant to Article 2 of the Credit Agreement we
request you to make available on our account n°                     a
drawing in an amount of EUR/USD/CAD2                    for a period of
                   




We confirm that, at the date hereof :





	•	 	the representations set out in Article 6.1 are still true and accurate and
	 
	•	 	no event has occured constituting or which might constitute an acceleration event pursuant to Article 8 of the Credit
Agreement.





	 	 	 
	

	 	For : BUSINESS OBJECT SA
	

	 	Name :                                       
	

	 	Title :                                       







2Select as appropriate





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