EXHIBIT 1
X X X X X X X X SOCIETE D'EXERCICE LIBERAL D'AVOCATS A FORME ANONYME
C H A N C E
EXECUTION COPY
AXA
as Borrower
BANK OF AMERICA INTERNATIONAL LIMITED
CHASE MANHATTAN PLC
SG INVESTMENT BANKING
and
UBS WARBURG LTD.
as Arrangers
SOCIETE GENERALE
as Agent
and
THE BANKS
------------------------------------------------------------
MULTICURRENCY TERM AND REVOLVING CREDIT
FACILITIES AGREEMENT
14 December 2000
US$ 5,000,000,000 or its equivalent in Optional Currencies
------------------------------------------------------------
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation...................................1
2. The Facilities..................................................14
3. Drawdown of the Term Facility...................................17
4. Multicurrency Option for Term Advances..........................18
5. Interest Periods for Term Advances..............................21
6. Drawdown of the Revolving Facility..............................22
7. Multicurrency Option for Revolving Advances.....................24
8. Interest Periods for Revolving Advances.........................24
9. Interest Rates..................................................25
10. Payment of Interest.............................................26
11. Scheduled and other Repayments..................................27
12. Taxes...........................................................30
13. Changes in Circumstances........................................31
14. General Provisions..............................................32
15. Borrower's Representations......................................33
16. Borrower's Undertakings.........................................36
17. Financial Covenants.............................................39
18. Events of Default and Special Early Termination Events..........40
19. Default Interest................................................43
20. Indemnity.......................................................44
21. Payment.........................................................45
22. Sharing.........................................................47
23. Commitment Commission and Fees..................................48
24. Costs and Expenses..............................................49
25. The Agent, the Arrangers and the Banks..........................50
26. Assignments and Transfers.......................................54
i
27. Miscellaneous...................................................55
28. Calculations and Evidence of Debt...............................56
29. Recourse........................................................56
30. Severability....................................................56
31. Notices.........................................................57
32. Amendments......................................................58
33. TAUX EFFECTIF GLOBAL............................................59
34. Schedules.......................................................59
35. Applicable Law..................................................59
36. Jurisdiction....................................................59
SCHEDULE 4 Conditions Precedent................................66
ii
THIS AGREEMENT is
BETWEEN
(1) AXA, SOCIETE ANONYME A DIRECTOIRE ET CONSEIL DE SURVEILLANCE incorporated
under French law with a registered capital of euro 3,616,452,908.25 whose
registered office is at 00, xxxxxx Xxxxxxxx, 00000 Xxxxx and which is
registered at the Paris Companies Registry under company number 572 093
920 (the "BORROWER");
(2) The banks and other financial institutions whose names are set out in
Schedule 1 (together the "ORIGINAL BANKS" and each an "ORIGINAL BANK");
(3) BANK OF AMERICA INTERNATIONAL LIMITED, CHASE MANHATTAN PLC, SG INVESTMENT
BANKING and UBS WARBURG LTD. (together the "ARRANGERS" and each an
"ARRANGER"); and
(4) SOCIETE GENERALE, as agent for the Banks (the "AGENT").
WHEREAS
(A) The Borrower (i) intends to acquire the Tender Offer Shares and (ii) may
also acquire all shares in AXA Financial Inc. held by AXA Equity & Law
Assurance Society.
(B) The Banks have agreed to make available to the Borrower term and revolving
credit facilities of up to US$ 5,000,000,000 (or its equivalent in
Optional Currencies) under the terms and subject to the conditions set out
herein in order to enable the Borrower to finance or refinance, directly
or indirectly, the acquisition of the shares referred to in (A) including
any costs associated therewith.
IT HAS BEEN AGREED FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement and the recitals above, unless otherwise defined:
"ADVANCE" means a Revolving Advance or a Term Advance.
"AGENT'S RATE OF EXCHANGE" means the agent's rate of exchange for the
purchase of the relevant currency with dollars in the Paris foreign
exchange market at or about 10.00 a.m. on a particular day for delivery
three Business Days after that date.
"APPLICABLE REVOLVING MARGIN" means 0.275 per cent per annum.
"APPLICABLE TERM MARGIN" means (a) 0.275 per cent per annum until and
including the date falling 12 months after the Closing Date for the
Tender Offer, (b) 0.325 per cent per annum for the period from the end
of the period mentioned in (a) until and including the
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date falling 24 months after the Closing Date for the Tender Offer
and (c) 0.35 per cent per annum for the period from the end of the
period mentioned in (b) until the Term Loan Termination Date.
"AVAILABILITY PERIOD" means:
(a) in relation to the Term Facility, the period from and including the
date hereof to and including the earlier of (a) 30 June 2001 or (b)
the first Business Day on which the Available Term Commitment of
each of the Banks is zero; and
(b) in relation to the Revolving Facility, the period from and including
the date hereof to and including the earlier of (a) the date falling
one month prior to the Revolving Loan Termination Date or (b) the
first Business Day on which the Revolving Commitment of each of the
Banks is zero.
"AVAILABLE COMMITMENT" means, in relation to a Bank at any time, the
aggregate of its Available Term Commitment and Available Revolving
Commitment.
"AVAILABLE REVOLVING COMMITMENT" means, in relation to a Bank at any time
and save as otherwise provided herein, its Revolving Commitment at such
time less the aggregate Dollar Amount of its Participation in the
Revolving Advances which are then outstanding.
"AVAILABLE REVOLVING FACILITY" means, at any time, the aggregate amount of
the Available Revolving Commitments adjusted, in the case of any proposed
Revolving Advance so as to take into account any reduction in the
Revolving Commitment of a Bank on or before the proposed Drawdown Date.
"AVAILABLE TERM COMMITMENT" means, in relation to a Bank at any time and
save as otherwise provided herein, its Term Commitment at such time less
the aggregate Dollar Amount of its Participation in the Term Advances
which are then outstanding.
"AVAILABLE TERM FACILITY" means, at any time, the aggregate amount of the
Available Term Commitments adjusted, in the case of any proposed Term
Advance, so as to take into account any reduction in the Term Commitment
of a Bank on or before the proposed Drawdown Date.
"AXA FINANCIAL" means AXA Financial Inc., a Delaware corporation, whose
registered office is at 0000, Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000.
"AXA MERGER CORP." means AXA Merger Corp., a wholly owned subsidiary of
the Borrower, incorporated under the laws of the State of Delaware.
"AXA NET WORTH" means the sum of (a) total shareholder's equity
(including: ordinary shares, capital in excess of nominal value and
retained earning and reserves), (b) net income, (c) instruments junior to
subordinated debt (if any) and (d) subordinated debt, as each such item is
described in the most recent annual statutory non-consolidated financial
statements of the Borrower (contained in the most recent annual
consolidated financial statements of the Borrower). For the avoidance of
doubt, AXA Net Worth with respect to the Original Financial Statements is
EUR 18.4 billion.
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"BANK" means:
(a) the Original Banks; or
(b) any financial institution to which rights and/or obligations are
transferred, in accordance with the provisions of Clause 26.2
(TRANSFERS BY THE BANKS).
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks generally are open for business in Paris and London and:
(a) (in relation to a date for the payment or purchase of a currency
other than euro) is a day on which banks are generally open for
business in the principal financial centre of the country of that
currency; or
(b) (in relation to any date for payment or purchase of euro) is a
TARGET Day.
"CLOSING DATE FOR THE TENDER OFFER" means the date on which the Borrower
has accepted for exchange all of the Tendered Shares properly tendered and
not withdrawn pursuant to the Tender Offer, as evidenced by a certificate
duly signed by an authorised officer of the Borrower.
"COMMITMENT" means, in relation to a Bank, the aggregate of its Term
Commitment and its Revolving Commitment.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form set
out in Schedule 5 (FORM OF COMPLIANCE CERTIFICATE).
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking in the
form of the Loan Market Association standard confidentiality undertaking
from time to time or in such other form as may be reasonably acceptable to
the Borrower.
"DOLLAR AMOUNT" means, subject to adjustments in accordance with Clause
4.3 (AMOUNT OF TERM ADVANCES) or Clause 4.5 (CURRENCY CHANGE):
(a) in relation to an Advance, its Original Dollar Amount as reduced by
any repayment, for which purpose when an Advance denominated in an
Optional Currency is repaid in part, its Dollar Amount shall be
reduced in the proportion that the amount of the repayment bears to
the amount of the Advance immediately before the repayment; and
(b) in relation to the Loan, the aggregate of the Dollar Amounts as
defined in (a) of the outstanding Advances.
"DOLLAR EQUIVALENT" means in relation to a Term Advance at a particular
date (i) its Dollar Amount if it is then denominated in dollars and (ii)
if it is denominated in an Optional Currency its dollar equivalent,
calculated at the Agent's Rate of Exchange on the third Business Day
preceding that date for the purchase of dollars with such Optional
Currency.
"DRAWDOWN DATE" means the date upon which any Advance is made available or
is to be made available in accordance with a Notice of Drawdown.
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"ELIGIBLE BANK" means any Bank which satisfies the conditions required by
French law, including any applicable treaty for the avoidance of double
taxation, in order for interest payments made by the Borrower to the Agent
for the account of such Bank's Facility Office not to be subject to (or,
as the case may be, to be exempt from) any withholding or deduction.
"EMU" means Economic and Monetary Union as contemplated in the Treaty on
European Union.
"EMU LEGISLATION" means legislative measures of the European Council for
the introduction of the euro.
"EURIBOR" means, in relation to any amount owed by the Borrower hereunder
in euros on which interest for a given period is to accrue, the percentage
rate per annum equal to the offered quotation which appears on the page of
the Telerate screen which displays an average rate of the Banking
Federation of the European Union for euro (being currently page 248) for
such period at or about 11:00 am (Brussels time) on the Rate Determination
Date for such period, or if such page or such service is not or shall
cease to be available or relevant, such other page or such other service
for the purpose of displaying an average rate of the Banking Federation of
the European Union for euro as the Agent, after consultation with the
Banks and the Borrower, shall reasonably select.
"EVENT OF DEFAULT" means any circumstance described as such in Clause 18.1
(EVENTS OF DEFAULT).
"EXISTING AMOUNT" means, in relation to any Term Advance and any two
successive Interest Periods relating thereto, the amount of such Term
Advance at the beginning of the last day of the first of those Interest
Periods less any part thereof falling to be repaid on such day.
"FACILITIES" means the Term Facility and the Revolving Facility and a
"FACILITY" shall mean any one of them.
"FACILITY OFFICE" means:
(a) in the case of each Bank which has signed this Agreement, the office
specified under its signature;
(b) in the case of a financial institution which has subsequently become
a Bank, the office specified in the relevant Transfer Agreement; or
(c) such other office as any Bank may from time to time select by notice
to the Agent.
"FEE LETTERS" means (i) the letter dated 18 October 2000 addressed to the
Borrower by the Arrangers and countersigned by the Borrower on 18 October
2000 and (ii) the letter dated 14 December 2000 addressed to the Borrower
by the Agent and countersigned by the Borrower on 14 December 2000 as
referred to in Clause 23.4 (AGENCY FEE).
"FINANCE PARTIES" means the Agent, the Arrangers and the Banks.
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"FINAXA" means FINAXA, a SOCIETE ANONYME incorporated under French law,
whose registered office is at 00, xxxxxx Xxxxxxxx, 00000 Xxxxx and which
is registered at the Paris Companies Registry under Company number 302 995
998.
"FORM F-4 REGISTRATION STATEMENT" means the Form F-4 Registration
Statement filed by the Borrower under the U.S. Securities Act of 1933 with
the SEC on 21 November 2000.
"FUNDING COSTS" means, in the case of a Bank or the Agent, the rate per
annum which represents the actual cost to such Bank or the Agent of
funding for a given period its participation in any sum outstanding
hereunder such costs to be duly justified by reference to the then current
rates in the relevant market.
"GROUP" means the Borrower and its Subsidiaries from time to time.
"INFORMATION MEMORANDUM" means the document dated November 2000 concerning
the Borrower and AXA Financial which, at the request of the Borrower and
on its behalf, was prepared by the Arrangers in relation to this
transaction, approved by the Borrower and distributed by the Arrangers in
connection with the syndication of the Facilities before the date of this
Agreement.
"INSTRUCTING GROUP" means:
(a) if no Advance has been made, a Bank or Banks whose Commitments
amount (or, if the Total Commitments are then zero, immediately
prior to their reduction to zero, amounted) in aggregate to more
than sixty-six and two thirds per cent. of the Total Commitments;
(b) or, if an Advance has been made, a Bank or Banks to whom in
aggregate more than sixty-six and two thirds per cent. of the Dollar
Amount of the Loan is (or, immediately prior to its repayment, was
then) owed.
"INTEREST DIFFERENTIAL" means for any period (the "CALCULATION PERIOD")
the difference between:
(a) the amount of interest which would have accrued on such sum during
such calculation period in accordance with the provisions of this
Agreement; and
(b) the amount of interest which would have accrued on such sum at the
Reference Rate for the period beginning on the third Business Day of
the calculation period and ending on the last day of the calculation
period,
and an Interest Differential is "positive" if (a) is greater than (b).
"INTEREST PERIOD" means any period in relation to which a Reference Rate
is or is to be determined pursuant to the provisions of Clause 5 (INTEREST
PERIODS FOR TERM ADVANCES), Clause 8 (INTEREST PERIODS FOR REVOLVING
ADVANCES), Clause 9.3 (MARKET DISRUPTION) or a default rate is or is to be
determined pursuant to the provisions of Clause 19.1 (DETERMINATION OF THE
RATE OF DEFAULT INTEREST).
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"LIBOR" means, in relation to any amount owed by the Borrower hereunder on
which interest for a given period is to accrue (other than in euros), the
percentage rate per annum equal to the offered quotation which appears on
the page of the Telerate Screen which displays an average British Bankers
Association Interest Settlement Rate for the currency of the relevant
amount (being currently "3740" or, as the case may be, "3750") for such
period at or about 11.00 a.m. (London time) on the Rate Determination Date
for such period or, if such page or such service shall cease to be
available, such other page or such other service for the purpose of
displaying an average British Bankers Association Interest Settlement Rate
for such currency as the Agent, after consultation with the Banks and the
Borrower, shall reasonably select.
"LOAN" means, at any time, the aggregate principal amount of the Term Loan
and the Revolving Loan.
"LOAN PERIOD" means the period commencing on the date hereof and ending on
the first date upon which the Total Commitments have been reduced to zero
and the Borrower has no outstanding payment obligations (actual or
contingent) to the Banks hereunder.
"MANDATORY COSTS RATE" means, in relation to each Advance the rate
determined in accordance with Schedule 6 (MANDATORY COSTS).
"MARGIN" means the Applicable Term Margin, or as the context may require,
the Applicable Revolving Margin.
"MARGIN STOCK" has the meaning assigned to that term in Regulation U of
the Regulations.
"MATERIAL ADVERSE CHANGE" means any event or circumstance relating to the
assets or financial condition of the Group taken as a whole which has a
Material Adverse Effect on the Borrower.
"MATERIAL ADVERSE EFFECT" means any effect which, in the reasonable
opinion of an Instructing Group, is expected to be materially adverse to
the ability of the Borrower to comply with any of its payment obligations
under this Agreement.
"MATERIAL SUBSIDIARY" means:
(a) any Subsidiary of the Borrower engaged in insurance business and
regulated as such whose contribution to the consolidated premium or
consolidated gross technical reserves, respectively, of the Borrower
represents 5% or more of the consolidated gross premium issued or
consolidated gross technical reserves of the Group for the
immediately preceding financial year for which consolidated accounts
were prepared (as such items are described in the most recent annual
consolidated statutory financial statements of the Borrower); or
(b) any Subsidiary of the Borrower engaged in asset management and
regulated as such which has assets under management of more than 30
per cent. of the aggregate assets under management of the Group
determined on the basis of the most recent annual consolidated
statutory financial statements of the Borrower; or
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(c) any Subsidiary of the Borrower engaged in banking and regulated as
such whose total assets exceed 4 per cent. of the consolidated gross
assets of the Group for the immediately preceding financial year for
which consolidated accounts were prepared (as such items are
described in the most recent annual consolidated statutory financial
statements of the Borrower) but excluding Xxxxxxxxx Xxxxxx &
Xxxxxxxx and Banque Worms, and their respective successors and
controlled affiliates.
"MERGER" has the meaning given in the definition of the "Offer Documents".
"MERGER AGREEMENT" has the meaning given in the definition of the "Offer
Documents".
"MERGER CONSIDERATION" has the meaning given in the definition of the
"Offer Documents".
"NATIONAL CURRENCY UNIT" means the unit of currency (other than an euro
unit) of a Participating Member State or a Subsequent Participant.
"NEW AMOUNT" means, in relation to any Term Advance and any two successive
Interest Periods relating thereto, the amount of such Term Advance at the
beginning of the second of those Interest Periods as determined in
accordance with Clause 4.3 (AMOUNTS OF TERM ADVANCES).
"NOTICE OF DRAWDOWN" means a notice of Drawdown in the form set out in
Schedule 3 (FORM OF NOTICE OF DRAWDOWN) delivered by the Borrower to the
Agent in accordance with the provisions of Clause 3.1 (DRAWDOWN CONDITIONS
FOR TERM ADVANCES) and Clause 6.1 (DRAWDOWN CONDITIONS FOR REVOLVING
ADVANCES) (as the case may be).
"OFFER DOCUMENTS" means (a) the documents distributed to shareholders of
AXA Financial in connection with the offer of the Borrower (the "TENDER
OFFER") to acquire all of the outstanding shares of common stock of AXA
Financial (other than shares owned by the Borrower and its Subsidiaries or
shares held in treasury by AXA Financial) (the "TENDER OFFER SHARES")
substantially on the terms and conditions set forth in the Form F-4
Registration Statement filed by the Borrower under the U.S. Securities Act
of 1933 in connection with the Tender Offer (the "TENDER OFFER
DOCUMENTS"), and (b) the agreement and plan of merger between the
Borrower, AXA Merger Corp. and AXA Financial (the "MERGER AGREEMENT")
pursuant to which AXA Merger Corp. will be merged into AXA Financial
(which will be the surviving entity) and all shares of AXA Financial being
owned by public shareholders, not tendered, will be converted into an
entitlement to receive the merger consideration (the "MERGER
CONSIDERATION) specified in the Merger Agreement (the "MERGER").
"OPTIONAL CURRENCY" means:
(a) euro, Swiss francs and sterling; or
(b) any other currency (except dollars or euro or a National Currency
Unit) which is freely transferable and freely convertible into
dollars, which is available to banks in the London Interbank Market
and which has been previously approved
7
in writing by the Agent (acting on the instructions of all the
Banks) as an optional currency for the purpose of any Advance during
a particular Interest Period at least three Business Days prior to
the first day of that Interest Period for such Advance.
"ORIGINAL DOLLAR AMOUNT" means:
(a) in relation to a Term Advance:
(i) where such Term Advance came into existence as a result of a
drawing under the Term Facility the amount specified as such in
the Notice of Drawdown relating thereto, as the same may be
reduced pursuant to Clause 3.4 (REDUCTION OF AVAILABLE
COMMITMENT);
(ii) where such Term Advance came into existence upon the
consolidation of two or more Term Advances in accordance with
CLAUSE 5.3 (CONSOLIDATION OF ADVANCES), the aggregate of the
Dollar Amounts of the Term Advances so consolidated; and
(iii) where such Term Advance came into existence upon the division
of a Term Advance, the amount specified as such by the Borrower
pursuant to Clause 5.4 (DIVISION OF ADVANCES); and
(b) in relation to a Revolving Advance the amount specified as such in
the Notice of Drawdown relating thereto, as the same may be reduced
pursuant to Clause 6.4 (REDUCTION OF AVAILABLE REVOLVING
COMMITMENT).
"ORIGINAL FINANCIAL STATEMENTS" means in relation to the Borrower, its
audited consolidated financial statements for its financial year ended 31
December 1999.
"PARTICIPATING MEMBER STATE" means any member state which adopted the euro
as its lawful currency as at 1 January 1999.
"PARTICIPATION" means in relation to a Bank at any time the portion of an
Advance or of the Loan which the Borrower owes that Bank (or, in the case
of an undrawn Advance, if made, would be owed).
"PARTIES" means the Finance Parties and the Borrower.
"POTENTIAL EVENT OF DEFAULT" means any event which, with the giving of
notice or the lapse of any period of time, in each case under this
Agreement, would constitute an Event of Default.
"POTENTIAL SPECIAL EARLY TERMINATION EVENT" means any event which, with
the giving of notice or the lapse of any period of time, in each case
under this Agreement, would constitute a Special Early Termination Event.
"PROPORTIONATE AMOUNT" means, in relation to a Bank:
(a) whilst no Advances are outstanding, the proportion borne by its
Commitment to the Total Commitments (or, if the Total Commitments
are then zero, by its
8
Commitment to the Total Commitments immediately prior to their
reduction to zero); or
(b) whilst at least one Advance is outstanding, the proportion borne by
its Participation in the Dollar Amount of the Loan to the total
Dollar Amount of the Loan.
"RATE DETERMINATION BUSINESS DAY" means (i) in the case of LIBOR a day
(other than a Saturday or Sunday) on which banks generally are open for
business in London and (ii) in the case of EURIBOR a Target Day.
"RATE DETERMINATION DATE" means, in relation to any period for which an
interest rate is to be determined hereunder the day which is two Rate
Determination Business Days before the first day of that period or, if the
interest rate is to be determined with reference to an amount in sterling,
the day which is the first day of that period.
"REFERENCE BANKS" means, in relation to LIBOR, Citibank, N.A., London
branch and the principal London offices of UBS AG, Societe Generale and
Sumitomo Bank and, in relation to EURIBOR, Citibank, N.A., London branch
and the principal Paris offices of UBS AG, Societe Generale and Sumitomo
Bank or such other bank or banks as may from time to time be agreed
between the Borrower and the Agent acting on the instructions of an
Instructing Group.
"REFERENCE RATE" means, in relation to an amount and any Interest Period
or any other period in relation to which such term is used, either EURIBOR
or, in the event that the amount is denominated in dollars or an Optional
Currency (other than euro), LIBOR.
"REGULATED HOLDING COMPANY" means, in respect of any Bank, any person
which is a holding company of that Bank and is regulated as a bank or
other financial institution.
"REGULATIONS" means any regulations of the Board of Governors of the
Federal Reserve System of the United States from time to time in force.
"REPEATED REPRESENTATIONS" means each of the representations set out in
Clause 15.1.1 to 15.1.9 (inclusive), 15.1.12, 15.1.14 to 15.1.17.
"REVOLVING ADVANCE" means an advance made or to be made by the Banks under
the Revolving Facility.
"REVOLVING COMMITMENT" means in relation to a Bank and save as otherwise
provided herein, (a) the amount set opposite its name under the heading
"Revolving Commitment" in Schedule 1 (LIST AND COMMITMENTS OF THE BANKS)
to the extent not cancelled, reduced or transferred under this Agreement;
and (b) in the case of a financial institution which has subsequently
become a Bank pursuant to a Transfer Agreement, the amount in $ specified
in the Transfer Agreement to be its Revolving Commitment to the extent not
cancelled, reduced or transferred under this Agreement.
"REVOLVING FACILITY" means the multicurrency revolving credit facility
granted in this Agreement in the maximum Dollar Amount of $ 2,250,000,000.
9
"REVOLVING LOAN" means, at any time, the aggregate principal amount of the
outstanding Revolving Advances.
"REVOLVING LOAN TERMINATION DATE" means the earlier of (a) 364 days from
the Closing Date for the Tender Offer or (b) 30 December 2001.
"SEC" means the United States Securities and Exchange Commission.
"SECURITY" means any:
(a) HYPOTHEQUE, NANTISSEMENT, PRIVILEGE, GAGE-ESPECES, any SURETE REELLE
or DROIT DE RETENTION;
(b) mortgage, pledge, lien, charge, assignment by way of security or for
the purpose of providing security, hypothecation, right in security,
security interest or (to the extent applicable) trust arrangement
for the purpose of providing security; and
(c) other security agreement or other arrangement having the effect of
providing security.
"SPECIAL EARLY TERMINATION EVENT" means any of the circumstances described
as such in Clause 18.3.1.
"SUBSEQUENT PARTICIPANT" means a member state that adopts the euro as its
lawful currency after the date hereof.
"SUBSTITUTION ADVANCE" means an Advance made or to be made on the same day
that an earlier Advance (the "MATURING ADVANCE") is due to be repaid, in
the same currency as the Maturing Advance (unless it is to be made in a
different currency by application of Clause 4.2 (CONDITIONS FOR
DENOMINATING A TERM ADVANCE IN AN OPTIONAL CURRENCY) or Clause 7.2
(CONDITIONS FOR DENOMINATING A REVOLVING ADVANCE IN AN OPTIONAL CURRENCY)
(as the case may be)), the Dollar Amount of which does not exceed that of
the Maturing Advance.
"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.
"TENDER OFFER" has the meaning given in the definition of the "Offer
Documents".
"TENDER OFFER DOCUMENTS" has the meaning given in the definition of the
"Offer Documents".
"TENDER OFFER SHARES" has the meaning given in the definition of the
"Offer Documents".
"TENDERED SHARES" means the shares in AXA Financial which have been
tendered in accordance with the Tender Offer.
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"TERM ADVANCE" means an advance made or to be made by the Banks under the
Term Facility.
"TERM COMMITMENT" means, in relation to a Bank and save as otherwise
provided herein:
(a) the amount set opposite its name under the heading "Term Commitment"
in Schedule 1 (LIST AND COMMITMENTS OF THE BANKS) to the extent not
cancelled, reduced or transferred under this Agreement; and
(b) in the case of a financial institution which has subsequently become
a Bank pursuant to a Transfer Agreement, the amount in $ specified
in the Transfer Agreement to be its Term Commitment to the extent
not cancelled, reduced or transferred under this Agreement.
"TERM FACILITY" means the multicurrency term loan facility granted to the
Borrower in this Agreement in the maximum Dollar Amount of $2,750,000,000.
"TERM LOAN" means, at any time, the aggregate principal amount of the
outstanding Term Advances.
"TERM LOAN TERMINATION DATE" means the earlier of (a) 36 months from the
Closing Date for the Tender Offer or (b) 30 December 2003.
"TRANSFER AGREEMENT" means an agreement substantially in the form set out
in Schedule 2 (TRANSFER AGREEMENT) duly executed on behalf of the parties
thereto in accordance with Clause 26 (ASSIGNMENTS AND Transfers).
"TOTAL COMMITMENTS" means, at any time, the aggregate of the Banks'
Commitments.
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of 25 March 1957, as
amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which
was signed at Maastricht on 7 February 1992 and came into force on 1
November 1993).
"UNITED STATES" and "U.S." means the United States of America (including
the District of Columbia), its territories, possessions and other areas
subject to the jurisdiction of the United States of America
"UNPAID AMOUNT" means any amount owed by the Borrower hereunder which is
not paid when due, or if payable on demand, remains unpaid at the end of
the time stipulated in the payment demand addressed to the Borrower.
1.2 INTERPRETATION
1.2.1 Any reference in this Agreement to:
an "AFFILIATE" of a company shall be construed as a reference to
another company which is a subsidiary or holding company, or a
subsidiary of a holding company of that first-mentioned company;
a document being in an "AGREED FORM" means that document in the form
initialled by or on behalf of the Borrower and the Agent;
11
"FINANCIAL INDEBTEDNESS" includes any indebtedness (whether actual
or contingent) for or in respect of:
(i) borrowed moneys;
(ii) any debenture, bond, note, loan stock or other security;
(iii) any acceptance or documentary credit;
(iv) the acquisition cost of any asset to the extent payable before
or after the time of acquisition or possession by the party
liable where the advance or deferred payment is arranged
primarily as a method of raising finance or financing the
acquisition of that asset;
(v) any lease (including, without limitation, capital leases)
entered into primarily as a method of raising finance or
financing the acquisition of the asset leased;
(vi) any indebtedness for money owing in respect of any interest
swap, or currency swap or other derivative instrument, such
indebtedness to be measured on a xxxx-to-market basis at the
relevant time and to include, with respect to any particular
counterparty, application of the relevant ISDA or AFB netting
procedures; or
(vii) any indebtedness (actual or contingent) under a guarantee,
security or other commitment designed to protect any creditor
against loss in respect of any financial indebtedness of any
third party.
a "HOLDING COMPANY" of a company or corporation shall be construed
as a reference to any company or corporation of which the
first-mentioned company or corporation is a subsidiary.
"LAW" includes any law, decree, regulation and any other binding act
of any State or of the European Community.
a "MEMBER STATE" shall be construed as a reference to a member state
of the European Union.
a "MONTH" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day in
the next succeeding calendar month (the "NORMAL EXPIRY DATE") or, if
there is no numerically corresponding day in that next succeeding
calendar month, the last Business Day in that next succeeding
calendar month. If the normal expiry date is not a Business Day, the
period shall end on the next succeeding Business Day, unless it
would in consequence end in the next calendar month in which event
it shall end on the immediately preceding Business Day.
"PAYMENTS" to be made or received by any party (subject to contrary
indication), are references to payments which such Party is to make
or receive pursuant to the terms of this Agreement;
12
"RIGHTS" or "OBLIGATIONS" of any Party refer, subject to contrary
indication, to the rights or obligations of the said Party under
this Agreement;
a "SCHEDULE", "CLAUSE" or "PARAGRAPH" refers (subject to any
contrary indication), respectively, to a Schedule to or clause of
this Agreement, or a paragraph of any clause of this Agreement;
a "SUBSIDIARY" of the Borrower shall be construed as a reference to
any company whose accounts are consolidated with those of the
Borrower by the full consolidation method (INTEGRATION GLOBALE) in
accordance with the principles and methods of consolidation applied
by the Borrower from time to time;
a "SUBSIDIARY" of any company or corporation other than the Borrower
shall be construed as a reference to any company or corporation:
(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(b) more than half the issued equity share capital of which is
beneficially owned, directly or indirectly, by the
first-mentioned company or corporation; or
(c) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation,
and, for these purposes, a company or corporation shall be treated
as being controlled by another if that other company or corporation
is able to direct its affairs and/or to control the composition of
its board of directors or equivalent body;
"TAX" includes:
(a) any tax, levy, impost, duty or other charge of a similar
nature; and
(b) any fine, penalty or interest due as a result of the
non-payment or of the late payment of any sum referred to in
paragraph (a).
1.2.2 TIME
Subject to contrary indication, references to a time of day
shall be to Paris time.
1.2.3 AGREEMENT
References to an agreement (including this Agreement) or any
other document shall be construed as a reference to such
agreement or document as amended, varied or supplemented.
1.2.4 CURRENCY SYMBOLS AND DEFINITIONS
(a) "EURO" and "EUR" denote the single currency of the
European Union as
13
constituted by the Treaty on European Union and as
referred to in EMU Legislation.
(b) "STERLING" and "(POUND)" denote lawful currency of the
United Kingdom.
(c) "DOLLARS", "US$" and "$" denote the lawful currency of
the United States of America.
(d) "SWISS FRANCS" and "CHF" denote the lawful currency of
Switzerland.
2. THE FACILITIES
2.1 GRANT OF THE FACILITIES
2.1.1 The Xxxxx xxxxx to the Borrower, who accepts, upon the terms
and subject to the conditions hereof, a multicurrency term
loan facility in an aggregate amount of up to $ 2,750,000,000
(the "TERM FACILITY"); and
2.1.2 the Xxxxx xxxxx to the Borrower, who accepts, upon the terms
and subject to the conditions hereof a multicurrency revolving
credit facility in an aggregate amount of up to $2,250,000,000
(THE "REVOLVING FACILITY").
2.2 PURPOSE AND APPLICATION OF THE FACILITIES
2.2.1 The Borrower shall use the proceeds of Advances exclusively in
or towards:
(a) financing or refinancing, directly or indirectly, the
acquisition of the Tender Offer Shares (including any
costs associated therewith); and
(b) financing or refinancing, directly or indirectly, the
acquisition of the shares in AXA Financial currently
held by AXA Equity & Law Assurance Society (including
any costs associated therewith).
2.2.2 The Finance Parties shall not be obliged to monitor or verify
the use made by the Borrower of an Advance.
2.3 OBLIGATIONS OF THE BANKS SEVERAL
The obligations of each Bank hereunder are several and therefore:
2.3.1 no Bank shall be liable for the failure of any other Bank to
perform its obligations; and
2.3.2 the failure by any Bank to perform its obligations shall not
affect in any way the obligations of the Borrower towards any
other Bank, nor shall it release any of the other Banks from
their obligations to the Borrower.
2.4 RIGHTS OF THE BANKS SEVERAL
The rights of the Banks against the Borrower are several and, therefore:
14
2.4.1 the debt arising in respect of any sum due from the Borrower
to any Bank under this Agreement shall be a separate and
independent debt; and
2.4.2 subject to the other provisions of this Agreement, each Bank
shall be entitled, independently of any other Bank, to take
all measures which it believes desirable to preserve or
enforce its rights.
2.5 VOLUNTARY CANCELLATION
2.5.1 The Borrower may at any time, by giving to the Agent not less
than five (5) Business Days' irrevocable prior written notice
to that effect, cancel (without cost, premium or penalty) the
whole or any part (being a minimum amount of $ 50,000,000 and
an integral multiple of $ 10,000,000) (or the remainder of the
Revolving Commitments, as the case may be) of the Available
Revolving Facility. Any such cancellation shall reduce the
Available Revolving Commitments of the Banks rateably and no
amount so cancelled may be reinstated or redrawn.
2.5.2 The Borrower may at any time until the end of the Availability
Period for the Term Facility, by giving to the Agent not less
than five (5) Business Days' irrevocable prior written notice
to that effect, cancel (without cost, premium or penalty) the
whole or any part (being a minimum amount of $ 50,000,000 and
an integral multiple of $ 10,000,000) (or the remainder of the
Term Commitments, as the case may be) of the Available Term
Facility. Any such cancellation shall reduce the Available
Term Commitments of the Banks rateably and no amount so
cancelled may be reinstated or redrawn.
2.6 CONDITIONS PRECEDENT FOR ADVANCES
2.6.1 CONDITIONS PRECEDENT FOR ADVANCES GENERALLY
The Borrower may not deliver and the Agent shall not be
allowed to give effect to a Notice of Drawdown unless the
Agent has received each of the documents listed in Schedule 4
(CONDITIONS PRECEDENT) in form and in substance reasonably
satisfactory to the Agent.
2.6.2 CONDITIONS PRECEDENT FOR ADVANCES TO FINANCE THE TENDER OFFER
The Borrower may not draw an Advance to finance the payment
for Tendered Shares or costs associated with the Tender Offer,
unless:
(a) the Form-F4 Registration Statement has been filed with
the SEC and is effective and in full force;
(b) the Agent has received a certificate in the form of
Schedule 7 from an Authorised Signatory of the Borrower
confirming that:
(i) all the conditions precedent to the Tender Offer
as set out in the Offer Documents have been
satisfied or waived as permitted hereby;
15
(ii) the Borrower and AXA Merger Corp. have accepted
the Tendered Shares for payment (or will accept
them for payment within 3 Business Days of the
time the relevant Advance is made);
(iii) immediately following acquisition of the Tendered
Shares, the Borrower and its subsidiaries
including AXA Merger Corp. will have the right to
vote (either directly or through the Voting Trust,
as hereinafter defined) such percentage of the
outstanding shares of AXA Financial as may be
necessary to approve the Merger; and
(iv) upon such acquisition, the Borrower and AXA Merger
Corp. will hold the Tendered Shares free and clear
of all liens, encumbrances, options, rights and
restrictions other than arising from the voting
trust agreement dated as of 12 May 1992 by and
among the Borrower and the voting trustees named
therein, as amended by the first amendment
agreement thereto dated as of 22 January 1999 (the
"VOTING TRUST");
(c) the Agent has received a copy certified as being a true
and complete copy by an Authorised Signatory of a
resolution of the Borrower's Supervisory Board (CONSEIL
DE SURVEILLANCE) authorising the Tender Offer;
(d) the Agent has received a copy certified as being a true
and complete copy by an Authorised Signatory of a
resolution of the Board of AXA Financial approving the
Tender Offer and the Merger; and
(e) the Agent has received copies of the Tender Offer
Documents.
2.6.3 CONDITIONS PRECEDENT FOR ADVANCES TO FINANCE THE MERGER
CONSIDERATION
The Borrower may not draw an Advance to finance payment of the
Merger Consideration or costs associated with the Merger,
unless:
(a) the Merger has been approved by all required corporate
actions; and there are no restrictions on the ability of
AXA Merger Corp. to implement the Merger;
(b) the Merger Agreement is in full force and effect;
(c) the Agent has received a copy certified as being a true
and complete copy by an Authorised Signatory of a
resolution of the Board of AXA Financial approving the
Tender Offer and the Merger (unless otherwise received
by the Agent pursuant to sub-clause 2.6.2. (d));
(d) the Agent has received a copy of the Merger Agreement;
and
(e) the Agent has received a certificate in the form of
Schedule 8 from an Authorised Signatory of the Borrower
confirming that all conditions precedent to the Merger
as set out in the Merger Agreement have been satisfied
or waived as permitted hereby.
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3. DRAWDOWN OF THE TERM FACILITY
3.1 DRAWDOWN CONDITIONS FOR TERM ADVANCES
A Term Advance will be made by the Banks to the Borrower if:
3.1.1 by no later than 11.00 a.m. on the third Business Day before
the proposed date for the making of such Term Advance or such
shorter period as may be reasonably agreed by the Agent in
consultation with the Banks, the Agent has received a
completed Notice of Drawdown from the Borrower which specifies
(a) that the Advance requested is a Term Advance and (b)
whether the Term Advance is drawn to finance (i) payment for
the Tendered Shares and costs associated with the Tender
Offer, (ii) payment of the Merger Consideration and costs
associated with the Merger, or (iii) payment of the
acquisition of the shares in AXA Financial currently held by
AXA Equity and Law Assurance Society and costs associated
therewith;
3.1.2 the Drawdown Date is a Business Day within the Availability
Period for the Term Facility;
3.1.3 the proposed Original Dollar Amount of such Term Advance is
(if less than the Available Term Facility) a minimum amount of
$ 50,000,000 and an integral multiple of $ 10,000,000 or such
other amount agreed between the Agent and the Borrower;
3.1.4 there would not immediately after the making of such Term
Advance, be more than 5 Term Advances outstanding;
3.1.5 the interest rate applicable to such Term Advance during its
first Interest Period would not fall to be determined pursuant
to Clause 9.3 (MARKET DISRUPTION); and
3.1.6 on the Drawdown Date (a) no Event of Default or Potential
Event of Default and no Special Early Termination Event or
Potential Special Early Termination Event is continuing or
would result from the proposed Term Advance and (b) the
Repeated Representations are true; and
3.1.7 the Borrower has paid, in accordance with the terms of the Fee
Letters, all fees which have then fallen due.
3.2 NOTICE OF DRAWDOWN IRREVOCABLE
Delivery of a Notice of Drawdown shall oblige the Borrower to borrow the
proposed Term Advance in the amount requested on the Drawdown Date.
3.3 EACH BANK'S PARTICIPATION IN TERM ADVANCES
Subject to the provisions of Clause 3.4 (REDUCTION OF AVAILABLE TERM
COMMITMENT) each Bank shall participate in each Term Advance through its
Facility Office in the proportion borne by its Available Term Commitment
to the Available Term Facility immediately prior to the making of that
Term Advance.
17
3.4 REDUCTION OF AVAILABLE TERM COMMITMENT
If a Bank's Available Term Commitment is cancelled or reduced in
accordance with the terms hereof at any time after the Agent has received
a Notice of Drawdown in respect of any Term Advance but before the
Drawdown Date relating to such Term Advance, then both the Original Dollar
Amount and the amount of such Term Advance shall be recalculated as if the
reduction of such Bank's Available Term Commitment had taken place before
the date of receipt by the Agent of such Notice of Drawdown.
3.5 FINAL DRAWDOWN DATE
At close of business in Paris on the last day of the Availability Period
relating to the Term Facility the Available Term Commitments shall
automatically be reduced to zero.
4. MULTICURRENCY OPTION FOR TERM ADVANCES
4.1 BORROWER'S REQUEST FOR OPTIONAL CURRENCY FOR TERM ADVANCES
The Borrower may in a Notice of Drawdown relating to a Term Advance and
thereafter by notice to the Agent in the form of Schedule 9, received
promptly after confirmation of the Agent's Rate of Exchange and in any
event no later than 11 a.m. on the third Business Day before the first day
of an Interest Period, request that the Term Advance be denominated in an
Optional Currency during its first Interest Period or, as the case may be,
the Interest Period to which the notice relates. In that event the Term
Advance shall, subject to Clause 4.2 (CONDITIONS FOR DENOMINATING A TERM
ADVANCE IN AN OPTIONAL CURRENCY), be denominated in that Optional Currency
provided that an Optional Currency may not be chosen if giving effect to
such request would cause the Term Loan to be denominated in more than
three Optional Currencies.
4.2 CONDITIONS FOR DENOMINATING A TERM ADVANCE IN AN OPTIONAL CURRENCY
If a Term Advance is to be denominated in an Optional Currency during any
Interest Period relating thereto and no later than 9:30 a.m. on the Rate
Determination Date for such Interest Period, the Agent receives notice
from a Bank that (i) it is impracticable for that Bank to fund its
Participation in the relevant Term Advance in the requested Optional
Currency, or (ii) the use of the requested Optional Currency may
contravene any law applicable to that Bank, then no later than 11.00 a.m.
on the Rate Determination Date for such Interest Period, the Agent shall
notify the Borrower and the Banks to that effect.
In this event, any Bank that gives notice pursuant to this Clause 4.2 will
be required to participate in the relevant Term Advance in dollars (in an
amount equal to that Bank's proportion of the Original Dollar Amount of
that Term Advance), and its Participation will be treated as a separate
Term Advance denominated in dollars during that Interest Period.
4.3 AMOUNT OF TERM ADVANCES
The amount of a Term Advance shall be:
18
4.3.1 the Dollar Amount of such Term Advance, if such Term Advance
is to be denominated in dollars; or
4.3.2 if such Term Advance is to be denominated in an Optional
Currency, the amount of such Optional Currency which could be
purchased with the Dollar Amount of such Term Advance at the
Agent's Rate of Exchange on the third Business Day preceding
the first day of such Interest Period for the purchase of such
Optional Currency with dollars,
PROVIDED THAT:
(i) if a Term Advance (the "RELEVANT ADVANCE") is to be denominated in
the same Optional Currency during two successive Interest Periods
and the Dollar Equivalent of the Term Loan on the first day of the
second Interest Period would otherwise exceed 105% or fall short of
90% of its then Dollar Amount, the Dollar Amount of the Relevant
Advance used for calculating its New Amount (in accordance with
Clause 4.3.2) shall be reduced (in the former case) or increased (in
the latter) to an amount such that the Dollar Equivalent of the Term
Loan on the first day of the second Interest Period is equal to its
Dollar Amount on that day PROVIDED THAT during the Availability
Period of the Term Facility such a reduction shall only be required
to the extent (if any) necessary to ensure that the Dollar
Equivalent of the Term Loan on the first day of the second such
Interest Period does not exceed the aggregate on that date of the
Term Commitments; and
(ii) the New Amount of the Relevant Advance shall be the same as its
Existing Amount unless, by virtue of (i) of this proviso, its Dollar
Amount has been adjusted, in which event its New Amount shall be
determined in accordance with Clause 4.3.2.
4.4 SAME CURRENCY
If a Term Advance is to be denominated in the same Optional Currency
during two successive Interest Periods and there is any difference between
the Existing Amount of such Term Advance and its New Amount, then:
4.4.1 if the Existing Amount of such Term Advance exceeds its New
Amount, the Borrower shall on the last day of the first of
those Interest Periods pay to the Agent for the account of the
Banks an amount equal to the amount of such excess; or
4.4.2 if the New Amount of such Term Advance exceeds its Existing
Amount, the Agent shall, in accordance with the Borrower's
instructions set out in the notice given by the Borrower under
Clause 4.1 (BORROWER'S REQUEST FOR OPTIONAL CURRENCY FOR TERM
ADVANCES), either:
(a) on the third Business Day before the last day of the
first of those Interest Periods, request each Bank to
pay on the last day of the first of those Interest
Periods an amount equal to its portion of the amount of
such excess to the Agent for application in payment to
the Borrower; or
19
(b) on the third Business Day before the last day of the
first of those Interest Periods, inform each Bank that
no such payments need be made and that instead a sum
equal to the aggregate amount which would have been so
payable shall be treated as having been repaid by the
Borrower under Clause 11.3 (VOLUNTARY PROPORTIONAL
REPAYMENT); or
(c) if an Event of Default shall have occurred and the Agent
or an Instructing Group so determines, no such payments
shall be made by the Banks and a sum equal to the
aggregate amount which would have been so payable shall
be treated as having been prepaid by the Borrower under
Clause 11.3 (VOLUNTARY PROPORTIONAL REPAYMENT).
4.5 CURRENCY CHANGE
If a Term Advance (the "RELEVANT ADVANCE") is to be denominated in
different currencies during two successive Interest Periods:
4.5.1 the Agent shall on the third Business Day before the first day
of the second of those Interest Periods:
(a) calculate the difference (the "OVERALL DOLLAR
DIFFERENCE"), as of the first day of the second of those
Interest Periods between (i) the Dollar Amount of all
the Term Advances plus the Available Term Facility and
(ii) the sum of the Dollar Equivalents of all the Term
Advances except the Relevant Advance, and
(b) determine in accordance with Clause 4.3 (AMOUNT OF TERM
ADVANCES) the New Amount of the Relevant Advance after
adjusting its Dollar Amount for the second such Interest
Period so as;
(i) if the determination is made before the end of the
Availability Period for the Term Facility, to make
it equal to the lesser of the Overall Dollar
Difference or the Dollar Amount of the Relevant
Advance during the first such Interest Period, or
(ii) if the determination is made after the
Availability Period for the Term Facility, to make
it equal to the Overall Dollar Difference, and
(c) enter into an exchange contract for the purchase of the
currency of an amount equal to the Existing Amount of
the Relevant Advance with the currency of the New Amount
of the Relevant Advance, for settlement on the last day
of the first of those Interest Periods;
4.5.2 on the last day of the first of those Interest Periods, each
Bank shall pay an amount equal to its portion of the New
Amount of the Relevant Advance to the Agent, who shall hold
the same on behalf of such Bank;
4.5.3 the Agent shall:
(a) on the last day of the first of those Interest Periods,
apply the amount so made available to it by each Bank in
or towards the purchase of such
20
Bank's portion of the Existing Amount of the Relevant
Advance pursuant to the exchange contract referred to in
Clause 4.5.1 (c) and pay the amount so purchased to such
Bank; and
(b) pay any portion of the amount made available to it by
the Banks and not applied in accordance with sub-clause
4.5.3 (a) to the Borrower or, if an Event of Default
shall have occurred and the Agent or an Instructing
Group so determines, to the Banks, any amount so paid to
the Banks being treated as if it were a repayment made
by the Borrower under Clause 11.3 (VOLUNTARY
PROPORTIONAL REPAYMENT);
4.5.4 the Borrower shall pay to the Agent for the account of each
Bank a sum equal to the amount (if any) by which such Bank's
share of the Existing Amount of such Advance exceeds the
portion thereof purchased by the Agent pursuant to sub-clause
4.5.3 (a).
5. INTEREST PERIODS FOR TERM ADVANCES
5.1 INTEREST PERIODS
The period for which a Term Advance is outstanding shall be divided into
successive periods each of which (other than the first, which shall begin
on the day such Term Advance is made) shall start on the last day of the
preceding such period.
5.2 DURATION OF INTEREST PERIODS
The duration of each Interest Period shall, save as otherwise provided
therein, be one, two, three or six months or any other period of up to
twelve months agreed between the Borrower and the Agent (acting on the
instructions of all the Banks), in each case as the Borrower may by not
less than four Business Days' prior notice to the Agent select, PROVIDED
THAT:
5.2.1 if the Borrower fails to give such notice of its selection in
relation to an Interest Period, the duration of that Interest
Period shall, subject to sub-clause 5.2.2, be three months;
and
5.2.2 any Interest Period for a Term Advance which would otherwise
end during the month preceding, or extend beyond, the Term
Loan Termination Date shall be of such duration that it shall
end on the Term Loan Termination Date.
5.3 CONSOLIDATION OF ADVANCES
If two or more Interest Periods relating to Term Advances denominated in
the same currency end at the same time, then, on the last day of those
Interest Periods, the Term Advances to which they relate shall be
consolidated into and treated as a single Term Advance.
5.4 DIVISION OF ADVANCES
The Borrower may, by not less than five Business Days' prior notice to the
Agent, direct that any Term Advance shall, at the beginning of any
Interest Period relating thereto, be
21
divided into (and thereafter, save as otherwise provided therein, treated
in all respects as) two or more Term Advances having such respective
Original Dollar Amounts (in aggregate, equalling the Dollar Amount of the
Term Advance being so divided) as shall be specified by the Borrower in
such notice, PROVIDED THAT the Borrower shall not be entitled to make such
a direction if:
5.4.1 as a result of so doing, there would be more than five
outstanding Term Advances; or
5.4.2 any Term Advance thereby coming into existence would have an
Original Dollar Amount of less than $ 50,000,000.
5.5 CONSOLIDATED AND DIVIDED ADVANCES
For the purpose of Clause 4 (MULTICURRENCY OPTION FOR TERM ADVANCES), a
Term Advance which comes into existence upon the consolidation of two or
more existing Term Advances or the division of an existing Term Advance
shall be treated as having existed prior to the date on which it comes
into existence and:
5.5.1 in the case of a consolidated Term Advance, having an amount
equal to the aggregate of the amounts of the Term Advances so
consolidated; and
5.5.2 in the case of a divided Term Advance, having an amount equal
to the portion of the Term Advance so divided which bears the
same proportion to the amount of the Term Advance so divided
as the Original Dollar Amount of the Term Advance coming into
existence bears to the Dollar Amount of the Term Advance so
divided.
6. DRAWDOWN OF THE REVOLVING FACILITY
6.1 DRAWDOWN CONDITIONS FOR REVOLVING ADVANCES
A Revolving Advance will be made by the Banks to the Borrower if:
6.1.1 by no later than 11.00 a.m. on the third Business Day before
the proposed date for the making of such Revolving Advance or
such shorter period as may be reasonably agreed by the Agent
in consultation with the Banks, the Agent has received a
completed Notice of Drawdown from the Borrower which specifies
(a) that the Advance requested is a Revolving Advance and (b)
whether the Revolving Advance is drawn to finance (i) the
payment of the Tendered Shares and costs associated with the
Tender Offer, (ii) payment of the Merger Consideration and
costs associated with the Merger, or (iii) payment of the
acquisition of the shares in AXA Financial currently held by
AXA Equity and Law Assurance Society and costs associated
therewith;
6.1.2 the Drawdown Date is a Business Day within the Availability
Period for the Revolving Facility;
6.1.3 the proposed Original Dollar Amount of such Revolving Advance
is (if less than the Available Revolving Facility) a minimum
amount of $50,000,000 and
22
an integral multiple of $ 10,000,000 or such other amount
agreed between the Agent and the Borrower;
6.1.4 there would not immediately after making of such Revolving
Advance, be more than 5 Revolving Advances outstanding;
6.1.5 the interest rate applicable to such Revolving Advance would
not fall to be determined pursuant to Clause 9.3 (MARKET
DISRUPTION);
6.1.6 on the Drawdown Date (a) no Event of Default or Potential
Event of Default and no Special Early Termination Event or
Potential Special Early Termination Event is continuing or
would result from the proposed Revolving Advance or, in the
case of a Substitution Advance, no Event of Default or Special
Early Termination Event is continuing or would result from the
proposed Revolving Advance and (b) the Repeated
Representations are true; and
6.1.7 the Borrower has paid, in accordance with the terms of the Fee
Letters, all fees which have then fallen due.
6.2 NOTICE OF DRAWDOWN IRREVOCABLE
Delivery of a Notice of Drawdown shall oblige the Borrower to borrow the
Revolving Advance in the amount requested on the Drawdown Date.
6.3 EACH BANK'S PARTICIPATION IN REVOLVING ADVANCES
Subject to the provisions of Clause 6.4 (REDUCTION OF AVAILABLE REVOLVING
COMMITMENT) each Bank shall participate in each Revolving Advance through
its Facility Office in the proportion borne by its Available Revolving
Commitment to the Available Revolving Facility immediately prior to the
making of that Revolving Advance.
6.4 REDUCTION OF AVAILABLE REVOLVING COMMITMENT
If a Bank's Available Revolving Commitment is cancelled or reduced in
accordance with the terms hereof at any time after the Agent has received
a Notice of Drawdown in respect of any Revolving Advance but before the
Drawdown Date relating to such Revolving Advance, then both the Original
Dollar Amount and the amount of such Revolving Advance shall be
recalculated as if the reduction of such Bank's Available Revolving
Commitment had taken place before the date of receipt by the Agent of such
Notice of Drawdown.
6.5 FINAL DRAWDOWN DATE
At close of business in Paris on the last day of the Availability Period
for the Revolving Facility the Available Revolving Commitments shall
automatically be reduced to zero.
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7. MULTICURRENCY OPTION FOR REVOLVING ADVANCES
7.1 BORROWER'S REQUEST FOR OPTIONAL CURRENCY FOR REVOLVING ADVANCES
The Borrower may request in a Notice of Drawdown relating to a Revolving
Advance that it be denominated in an Optional Currency in which event such
Revolving Advance shall, subject to Clause 7.2 (CONDITIONS FOR
DENOMINATING A REVOLVING ADVANCE IN AN OPTIONAL Currency), be denominated
in such Optional Currency provided that an Optional Currency may not be
chosen if giving effect to such request would cause the Revolving Loan to
be denominated in more than three Optional Currencies.
7.2 CONDITIONS FOR DENOMINATING A REVOLVING ADVANCE IN AN OPTIONAL CURRENCY
If a Revolving Advance is to be made in an Optional Currency and no later
than 9:30 a.m. on the Rate Determination Date, the Agent receives notice
from a Bank that (i) it is impracticable for that Bank to fund its
Participation in the relevant Revolving Advance in the requested Optional
Currency, or (ii) the use of the requested Optional Currency may
contravene any law, then no later than 11.00 a.m. on the Rate
Determination Date, the Agent shall notify the Borrower and the Banks to
that effect.
In this event, any Bank that gives notice pursuant to this Clause 7.2 will
be required to participate in the relevant Revolving Advance in dollars
(in an amount equal to that Bank's proportion of the Original Dollar
Amount of that Revolving Advance), and its Participation will be treated
as a separate Revolving Advance denominated in dollars during that
Interest Period.
7.3 AMOUNT OF REVOLVING ADVANCES
The amount of a Revolving Advance shall be:
7.3.1 the Dollar Amount of such Revolving Advance, if such Revolving
Advance is to be denominated in dollars; or
7.3.2 if such Revolving Advance is to be denominated in an Optional
Currency, the amount of such Optional Currency which could be
purchased with the Dollar Amount of such Revolving Advance at
the Agent's Rate of Exchange on the third Business Day
preceding the first day of its Interest Period.
8. INTEREST PERIODS FOR REVOLVING ADVANCES
8.1 The Borrower shall select the duration of the Interest Period for a
Revolving Advance in the Notice of Drawdown relating to such Revolving
Advance PROVIDED THAT, if the Borrower fails to make such selection, the
proposed Revolving Advance shall have an Interest Period of three months.
8.2 Subject to this Clause 8 the Borrower may select an Interest Period of
one, two, three or six months or any other period of up to twelve months
agreed between the Borrower and the Agent (acting on the instructions of
all the Banks).
24
8.3 The Interest Period for a Revolving Advance shall not extend beyond the
Revolving Loan Termination Date.
8.4 Each Revolving Advance has one Interest Period only which starts on its
Drawdown Date.
9. INTEREST RATES
9.1 CALCULATION OF INTEREST
The rate of interest applicable to an Advance from time to time during an
Interest Period, shall be the rate per annum which is the sum of the
Margin, the Mandatory Costs Rate in respect thereof at such time and the
Reference Rate for that Interest Period.
9.2 NON-PUBLICATION OF THE REFERENCE RATE
In the event that, on any Rate Determination Date in respect of any
Interest Period a Reference Rate is not published in the manner described
in the definition of LIBOR or, as the case may be, EURIBOR, such Reference
Rate shall be replaced for the determination of the interest rate
applicable in respect of such Interest Period by, if on such date at least
two Reference Banks notify the Agent of the rates at which, at or about
11.30 a.m. on such date, they were offering deposits in the relevant
currency in an amount equivalent to the relevant Advance, in relation to
EURIBOR to prime banks in the Euro Interbank Market or, in relation to
LIBOR, to prime banks in the London Interbank Market for a period
beginning on such date and ending on the final day of such Interest
Period, the rate per annum which is equal to the arithmetic mean (rounded
upwards, if necessary, to the nearest 1/16th) of the rates so notified.
9.3 MARKET DISRUPTION
9.3.1 In the event that:
(a) on any Rate Determination Date for an Interest Period
the Reference Rate is not published and the provisions
of Clause 9.2 (NON-PUBLICATION OF THE REFERENCE RATE) do
not permit the Agent to determine a successor rate; or
(b) a Bank or Banks whose aggregate Participations exceed
662/3 % of the amount of the relevant Advance, notify
the Agent, such notice to be given no later than on the
Rate Determination Date in respect of any Interest
Period, that the Reference Rate (or any successor
Reference Rate determined in accordance with Clause 9.2
(NON-PUBLICATION OF THE REFERENCE RATE)) for that
Interest Period does not reflect the Funding Costs of
such Bank or Banks.
then, the Agent shall forthwith so notify the Borrower and the
other Banks.
9.3.2
(a) If paragraph (a) of Clause 9.3.1 applies, then the
Interest Period shall automatically be reduced to one
month.
25
(b) If either paragraph of Clause 9.3.1 applies, then the
Agent and the Borrower shall seek to agree in good faith
a substitute basis for determining a substitute interest
rate for the relevant Interest Period.
(c) In the event that the Agent and the Borrower agree on a
substitute basis for the determination of the applicable
interest rate not later than 2 (two) Business Days prior
to the end of the relevant Interest Period, the
substitute interest rate shall apply during that
Interest Period, except in so far as concerns any Bank
which notifies the Agent not less than 2 (two) Business
Days after such agreement is reached that the
substituted rate does not reflect its Funding Costs. The
interest rate applicable to the Participation of that
Bank in the relevant Advance during the relevant
Interest Period shall be the sum of the Margin, the
Mandatory Costs Rate, if any, in respect thereof at such
time and its Funding Costs during such Interest Period.
(d) In the event that the Borrower and the Agent do not
reach such an agreement within the period mentioned in
paragraph (c), the interest rate applicable to the
Participation of each Bank in the relevant Advance
during the relevant Interest Period shall be equal to
the sum of the Margin, the Mandatory Costs Rate in
respect thereof at such time and such Bank's Funding
Costs during such Interest Period.
10. PAYMENT OF INTEREST
10.1 ADVANCES
The Agent shall promptly and, in any case, not later than 10 a.m. two
Business Days before the first day of an Interest Period, notify each Bank
of the proposed Dollar Amount of the relevant Advance, the proposed length
of the relevant Interest period, whether or not such Advance is to be
denominated in an Optional Currency (and, if so, the amount of such
Advance in the relevant Optional Currency) and the aggregate principal
amount of such Advance allocated to such Bank pursuant to Clause 3.3 (EACH
BANK'S PARTICIPATION IN TERM ADVANCES) and Clause 6.3 (EACH BANK'S
PARTICIPATION IN REVOLVING ADVANCES).
10.2 INTEREST RATE DETERMINATION
The Agent shall promptly notify the Borrower and the Banks of each
determination of the Reference Rate and the Mandatory Costs Rate (if any).
10.3 CHANGES TO ADVANCES OR INTEREST RATES
The Agent shall promptly notify the Borrower and the Banks of any change
to (a) the proposed length of an Interest Period or (b) any interest rate
in either case occasioned by the operation of Clause 9.3 (MARKET
DISRUPTION).
26
10.4 PAYMENT OF INTEREST
On the last day of each Interest Period relating to each Advance and, if
the Interest Period of such Advance exceeds six months, on the expiry of
each period of six months during such Interest Period, the Borrower shall
pay accrued interest on the Advance to which such Interest Period relates.
11. SCHEDULED AND OTHER REPAYMENTS
11.1 SCHEDULED REPAYMENT
11.1.1 The Borrower shall repay the Term Loan on the Term Loan
Termination Date.
11.1.2 The Borrower shall repay each Revolving Advance on the last
day of its Interest Period.
11.2 MANDATORY NON-PROPORTIONAL REPAYMENT
If Clause 13.2 (ILLEGALITY) applies in respect of any Bank, then, the
Borrower shall, at the request of the Agent, repay without penalty such
Bank's Participation in the Loan on the last Business Day authorised under
the terms of such law.
11.3 VOLUNTARY PROPORTIONAL REPAYMENT
11.3.1 At any time the Borrower may, subject to giving at least five
(5) Business Days notice to the Agent, such notice being
irrevocable, repay (without cost, premium or penalty but
subject to Clause 20.2 (INTEREST DIFFERENTIALS)), all or any
part of the Term Loan or the Revolving Loan.
11.3.2 Any such repayment, if not of the entire amount of the Term
Loan or the Revolving Loan (as the case may be), shall be in
an amount such that its Dollar Amount will be reduced by an
amount which is at least $ 50,000,000 and an integral multiple
of $ 10,000,000.
11.4 VOLUNTARY NON-PROPORTIONAL REPAYMENT
11.4.1 The Borrower may repay (without cost, premium or penalty but
subject to Clause 20.2 (INTEREST DIFFERENTIALS)) all but not
part only of the Participation in the Loan of any Bank which
has made a claim under Clause 12 (TAXES) or Clause 13.1
(ADDITIONAL COSTS) provided that the Borrower shall give at
least five (5) Business Days' notice, such notice being
irrevocable, to the Agent of its intention to make such
repayment and that, at the time such notice is given, the
circumstances which gave rise to the Bank's claim continue to
exist.
11.4.2 Upon delivery by the Borrower to the Agent of a notice of
repayment pursuant to the provisions of sub-clause 11.4.1, the
Available Commitment of the relevant Bank shall be reduced to
zero.
27
11.5 MANDATORY REPAYMENT ON CHANGE OF CONTROL
11.5.1 HOSTILE CHANGES OF CONTROL
If (following consultation between the Agent and the Borrower)
within 30 days of the date upon which a hostile change of
control becomes legally effective, the Agent (acting on the
instruction of an Instructing Group), by notice to the
Borrower so requires, the Borrower shall, on the later of the
date specified in the notice and 90 days after the date of the
hostile change of control becoming legally effective, repay
the Loan. On delivery of such a notice, the Commitments shall
automatically be reduced to zero. Any repayment made pursuant
to this Clause 11.5.1 shall be made without penalty, cost or
premium but subject to Clause 20.2 (INTEREST DIFFERENTIALS).
11.5.2 AMICABLE CHANGES OF CONTROL
If, within 30 days of the date on which an amicable change of
control becomes effective, any two specified rating agencies
reduce the credit risk rating published by them in respect of
the Borrower by more than one rating level the Agent may (and,
if so instructed by an Instructing Group, shall):
(a) declare that the Interest Period of any Advance having
an Interest Period greater than 6 months is reduced to 6
months;
(b) declare that any undrawn portion of each Facility shall
be cancelled, whereupon the same shall be cancelled; and
(c) declare that the Available Commitment of each Bank shall
be reduced to zero.
Any repayment made pursuant to this Clause 11.5.2 shall be
made without penalty, cost or premium but subject to Clause
20.2 (INTEREST DIFFERENTIALS).
11.5.3 DEFINITIONS
For the purposes of Clauses 11.5.1 and 11.5.2:
(a) there is a "CHANGE OF CONTROL" if the Borrower or FINAXA
(or any company into which the Borrower or FINAXA is
merged) is controlled by a person who is not a member of
the Control Group or a successor to or company
controlled by one or more members of the Control Group
PROVIDED THAT no such change of control of FINAXA shall
be taken into account if immediately after such change
of control the other members of the Control Group acting
separately or in concert, continue to control the
Borrower;
(b) a "HOSTILE CHANGE OF CONTROL" is a change of control in
respect of which the Borrower's CONSEIL DE SURVEILLANCE
has at any time stated that it does not recommend or
approve of such change of control;
28
(c) an "AMICABLE CHANGE OF CONTROL" is a change of control
which the Borrower's CONSEIL DE SURVEILLANCE has at all
times recommended or approved;
(d) if the Borrower's CONSEIL DE SURVEILLANCE (i) is not
under an obligation to take any decision with respect to
a change of control and (ii) does not, in fact, take any
such decision, then :
(i) if the change of control in question arises as a
result of a transfer of shares by one or more
members of the Control Group, the Supervisory
Board will be deemed to have recommended that
change in control; and
(ii) if the change of control in question results from
dealings in shares of the Borrower which do not
involve the Control Group, the Supervisory Board
will be deemed to have stated that it does not
recommend that change in control;
(e) "CONTROL GROUP" means FINAXA, AXA Assurances IARD
Mutuelle, AXA Assurances Vie Mutuelle, AXA Courtage
Assurances Mutuelle, AXA Conseil Vie Assurance Mutuelle,
and any other mutual insurance society incorporated in
France and created at the initiative of any member of
the Group for the purpose of controlling the Borrower;
(f) "CONTROL" has the meaning given in article L.233-3 of
the French CODE DE COMMERCE; and (g) the "SPECIFIED
RATING AGENCIES" are Standard and Poor's Rating Group,
Xxxxx'x Investor Services, Inc and Fitch IBCA.
11.6 MANDATORY REPAYMENT UPON ILLEGALITY
If at any time it becomes illegal for the Borrower to perform its
obligations under this Agreement, the Borrower shall forthwith upon demand
from the Agent repay the Loan.
11.7 GENERAL PROVISIONS IN RELATION TO REPAYMENTS
11.7.1 Upon delivery by the Borrower of a notice pursuant to Clause
11.3 (VOLUNTARY PROPORTIONAL REPAYMENT) or Clause 11.4
(VOLUNTARY NON-PROPORTIONAL REPAYMENT), the Borrower shall
forthwith be bound to make a repayment in accordance with such
notice.
11.7.2 In the event that the Borrower becomes obliged to make a
repayment in accordance with Clause 11.2 (MANDATORY
NON-PROPORTIONAL REPAYMENT), Clause 11.3 (VOLUNTARY
PROPORTIONAL REPAYMENT), Clause 11.4 (VOLUNTARY
NON-PROPORTIONAL REPAYMENT), Clause 11.5 (MANDATORY REPAYMENT
ON CHANGE OF CONTROL), Clause 11.6 (MANDATORY REPAYMENT UPON
ILLEGALITY) or Clause 18 (EVENTS OF DEFAULT AND SPECIAL EARLY
TERMINATION EVENTS) the Borrower shall, at the same time, pay
all interest accrued on the amount to be repaid and all other
sums then due hereunder.
29
11.7.3 The Borrower may not reborrow any part of the Term Loan which
has been repaid, except for amounts treated as repaid under
Clause 4.4.2 (b) during the Availability Period of the Term
Facility.
12. TAXES
12.1 WITHHOLDINGS
12.1.1 All payments to be made by the Borrower hereunder (including
any payments made pursuant to this Clause 12) shall be made
free and clear of and without deduction for or on account of
any tax levied in France, unless the Borrower is required to
make such payment subject to any such deduction or withholding
(a "WITHHOLDING"), in which case, subject to Clause 12.2
(Exception), the sum payable by the Borrower in respect of
which such withholding is required to be made shall be
increased to the extent necessary to ensure that, after the
making of the withholding, the payee receives a net sum equal
to the sum which it would have received had no such
withholding been required to be made.
12.1.2 In the event that the Borrower is required to make any
withholding (or if subsequently any modification is made to
the rate or the method of calculation of any withholding),
then the Borrower shall notify the Agent of such event
promptly upon becoming aware thereof.
12.1.3 If the Borrower is required to make a withholding, it shall
pay the full amount of such withholding to the relevant
authority within the time allowed for such payment and shall
deliver to the Agent within thirty (30) days after such
payment, an original of the receipt evidencing the payment of
the relevant withholding (or a certified copy thereof).
12.1.4 In the event that any Bank, having received a payment which
has been increased pursuant to the provisions of sub-clause
12.1.1 above, determines (in its discretion) that it has
irrevocably received a refund of tax or a tax credit as a
result of the payment of the withholding by the Borrower, such
Bank shall forthwith pay to the Borrower an amount equal to
the value of such refund or credit, net of any costs and taxes
incurred by the Bank in relation to such payment (so that the
Bank does not incur any cost or liability in respect of such
payment) provided always that no Bank shall be under any
obligation to make any such payment if the making of such
payment might result in the cancellation of the relevant tax
refund or credit. Each Bank shall have an absolute discretion
in obtaining or using any tax credit or refund, shall have no
account to render to the Borrower in that connection and shall
not be required to disclose any information in relation to its
tax matters.
12.2 EXCEPTION
Any Bank which was not an Eligible Bank on the date of this Agreement (or,
as the case may be, on the date upon which it became a Bank pursuant to
the provisions of Clause 26.2 (TRANSFERS BY BANKS) unless the transfer was
made pursuant to
30
Clause 14.2 (MITIGATION)), shall only be entitled to an additional payment
under Clause 12.1 (WITHHOLDINGS) to the extent that the additional payment
is referable to an increase in the applicable withholding tax rate in
France after such date.
13. CHANGES IN CIRCUMSTANCES
13.1 ADDITIONAL COSTS
13.1.1 For the purposes of this Agreement a "CHANGE IN LAW" shall
mean:
(a) any change in the law applicable at the date of this
Agreement which comes into force after such date;
(b) any change after the date of this Agreement in the
interpretation of any law by any competent authority or
in the conditions of its application.
13.1.2 The Banks have fixed their levels of remuneration under this
Agreement on the basis of the requirements of credit, fiscal,
monetary and professional regulations applicable to them (and
where relevant their Regulated Holding Companies) at the date
of this Agreement (and, in particular, those concerning credit
risk control and the solvency of credit institutions).
Therefore, in the event that as a result of (a) any change in
law or (b) compliance with any recommendation, instruction or
request by any central bank or fiscal or monetary or
regulatory authority which, even if non-mandatory, is commonly
complied with by banks in the relevant country:
(a) a Bank (or, where relevant, its Regulated Holding
Company) is unable to obtain the net rate of return on
its capital that it would have been able to obtain but
for entering into or performing its obligations;
(b) a Bank (or, where relevant, its Regulated Holding
Company) incurs a cost (or, as the case may be, an
additional cost) as a result of entering into its
obligations as a Bank or as a result of performing its
obligations;
(c) a Bank (or, where relevant, its Regulated Holding
Company) incurs a cost (or, as the case may be, an
additional cost) as a result of financing any category
of assets of which such Bank's Participation forms part;
or
(d) a Bank (or, where relevant, its Regulated Holding
Company) becomes liable to make any payment on account
of tax as a result of its Participation or calculated by
reference to any sum receivable by it pursuant to this
Agreement, except where such liability results from a
tax imposed, in the jurisdiction in which it is
incorporated or in which its Facility Office is located,
on the net income of its Facility Office;
then, the Borrower shall, subject to Clause 13.1.3 below, pay,
on demand by the Agent, all amounts necessary to indemnify the
relevant Bank for the reduction in the rate of return on
capital referred to in paragraph (a), the costs referred to
31
in paragraphs (b) and (c) or the taxes referred to in
paragraph (d) above (each an "INCREASED COST").
13.1.3 The Borrower shall only be obliged to indemnify the relevant
Bank in respect of an Increased Cost to the extent that such
Increased Cost would have the same effect at the same date on
all banks regulated by the same central bank or fiscal or
monetary or regulatory authority.
13.2 ILLEGALITY
The Agent shall immediately notify the Borrower of any notification it
receives from any Bank to the effect that it is or has become illegal for
such Bank to fulfil its obligations or to fund or maintain its
Participation. Following receipt of such a notice (provided that such
notice gives full details of the cause and the nature of the illegality
and its impact on a Bank's Participation and provided also that such
illegality is both certain and definitive and is not subject to conditions
reasonably acceptable to the Bank):
13.2.1 the relevant Bank's obligation to participate in the making of
any Advances shall cease and its Available Commitment shall be
immediately and automatically reduced to zero; and
13.2.2 the provisions of Clause 11.2 (MANDATORY NON-PROPORTIONAL
REPAYMENT) shall become applicable.
14. GENERAL PROVISIONS
14.1 CLAIMS BY THE BANKS
Any Bank which intends to make a claim under the provisions of Clause 13.1
(ADDITIONAL COSTS) or Clause 12.1 (WITHHOLDINGS) shall forthwith notify
the Agent of such claim, giving its reasons for the claim and enclosing
appropriate documentary evidence in relation thereto (provided that no
Bank shall be under any obligation to reveal any confidential
information). The Agent shall, within three Business Days of such
notification, notify the Borrower of such claim and the reasons for it.
14.2 MITIGATION
Before delivering any notice to the Agent in accordance with the
provisions of Clause 13.2 (ILLEGALITY) or Clause 14.1. (CLAIMS BY THE
BANKS), a Bank shall in consultation with the Agent and the Borrower
ascertain the reasonable measures which it could take (including the
changing of its Facility Office or the transfer of its rights and
obligations to an affiliate) to mitigate the consequences for the Borrower
of the circumstances giving rise to such claim, provided that such
measures do not in the opinion of such Bank have adverse consequences for
such Bank.
32
15. BORROWER'S REPRESENTATIONS
15.1 REPRESENTATIONS
The Borrower makes the following representations to the Finance Parties
and acknowledges that the Finance Parties have entered into this Agreement
in reliance on such representations being accurate and that the accuracy
of such representations both on the date hereof and (in the case of the
Repeated Representations) on the dates specified in Clause 15.2 is a
condition upon which the Banks have based their decision to participate in
the Facilities:
15.1.1
(a) the Borrower is a SOCIETE ANONYME A DIRECTOIRE ET
CONSEIL DE SURVEILLANCE duly organised and validly
existing under French law and has the power and
authority to carry on its business, to own its assets
and to enter into and perform its obligations under this
Agreement;
(b) AXA Merger Corp. is a corporation duly organised and
validly existing under the laws of Delaware and has the
power and authority to carry on its business, to own its
assets and to enter into and perform its obligations
under the Merger Agreement;
15.1.2 all corporate action necessary to enable the Borrower to enter
into and perform its obligations under this Agreement has been
duly taken and the Borrower's representative for the purposes
of signing this Agreement has all powers necessary to
authorise him to sign this Agreement on behalf of the
Borrower;
15.1.3 the execution of this Agreement by the Borrower and the
performance of its obligations hereunder do not conflict with:
(a) any provision of the Borrower's constitutional
documents;
(b) any obligation owed by the Borrower to any third party;
or
(c) any law or regulation applicable to it;
15.1.4 all (if any) filings, consents or authorisations of any kind
required from any administrative authority to permit the
Borrower to execute this Agreement and/or to perform its
obligations hereunder have been effective or obtained;
15.1.5 the obligations of the Borrower hereunder are legal, valid,
binding and enforceable, subject to the qualifications and
reservations contained in the legal opinions referred to in
Schedule 4 (CONDITIONS PRECEDENT);
15.1.6 save as disclosed in writing by the Borrower to the Agent
prior to the date hereof, as at the date of this Agreement, no
material litigation or other legal proceedings which are
material in the context of the Borrower's operations as a
whole have been commenced against the Borrower and to the best
of the Borrower's knowledge and belief it has not received any
notice from any third
33
party of such party's intention to commence such proceedings,
which, in either case, might have a Material Adverse Effect;
15.1.7
(a) no Event of Default or Special Early Termination Event
has occurred and is continuing; and
(b) save as may have been previously disclosed to the Agent
in writing, the Borrower has no knowledge that any
Potential Event of Default or Potential Special Early
Termination Event has occurred and is continuing;
15.1.8 the claims of the Finance Parties against the Borrower
hereunder will rank at least PARI PASSU with the claims of the
Borrower's other present and future unsecured and
unsubordinated creditors of financial indebtedness except for
financial indebtedness preferred by mandatory provisions of
French law of general application in the event of its
liquidation or winding-up;
15.1.9 the Original Financial Statements are accurate, have been
prepared in accordance with generally accepted accounting
principles in France and give an accurate and fair view of the
financial situation and business of the Borrower;
15.1.10 Since 31 December 1999 no event has occurred which relates to
the assets or financial condition of the Group taken as a
whole and would constitute a Material Adverse Change;
15.1.11 The factual information contained in the Information
Memorandum provided by the Borrower has been prepared with all
due care and attention and is, to the best of the Borrower's
knowledge and belief, complete and accurate in all material
respects and nothing material has occurred or been omitted
that renders the information contained in the Information
Memorandum untrue or misleading in any material respect which
might affect the decision of a lender to enter into this
Agreement;
15.1.12 Save as permitted pursuant to Clause 16.1.7, no Security
exists over all or any of its assets;
15.1.13 Under French law no stamp, registration or similar tax (other
than "TIMBRES DE DIMENSION") will be payable in respect of the
execution, delivery, performance or enforcement of this
Agreement;
15.1.14 No proceedings are pending or have been threatened against the
Borrower or a Material Subsidiary for REDRESSEMENT JUDICIAIRE
or LIQUIDATION JUDICIAIRE under articles L. 620-1 to L. 628-3
of the French CODE OF COMMERCE, for the appointment of a
MANDATAIRE AD HOC or a REGLEMENT AMIABLE in accordance with
articles L. 611-3 to L. 611-6 of the French CODE DE COMMERCE;
34
15.1.15
(a) the purchase of the Tendered Shares and the borrowing of
Advances to finance payment of the price of the Tendered
Shares will comply in all material respects, with all
provisions of all applicable laws and regulations; and
(b) all consents, authorisations and approvals of, including
any necessary consents of any state insurance commission
or other insurance regulator, filings and registrations
with, and all other actions in respect of, all
governmental agencies, authorities or instrumentalities
required to be obtained, given, filed or taken by the
Borrower in order to make or implement the Tender Offer
or to implement the Merger have been or, prior to the
time when required, will have been, obtained, given,
filed or taken and are or will at the relevant time be
in full force and effect and all applicable waiting
periods (including, without limitation, under the
Xxxx-Xxxxx Xxxxxx Antitrust Improvements Act of 1976, as
amended, of the United States) have expired without any
action being taken or threatened by any competent
authority which would restrain or prevent the Tender
Offer, the Merger or the refinancing thereof, except
where failure to obtain any such consent or approval or
to take any such other action would not materially
adversely affect the Tender Offer or the Merger (as the
case may be); and
(c) no action, request for stay, petition for review or
rehearing, reconsideration, or appeal with respect to
any of the foregoing matters set forth in sub-paragraph
(b) above is pending and no court or regulatory agency,
body or authority, including any state insurance
commission or similar person, has issued any permanent
or temporary injunction or other order or decree or
passed any law, rule or regulation, prohibiting or
delaying implementation of the transactions contemplated
by the Offer Documents or making the Tender Offer or the
Merger illegal, except where such action would not
materially adversely affect the Tender Offer or the
Merger (as the case may be);
15.1.16 The Regulations will not be violated by reason of the Advances
being made or their proceeds being used in accordance with
this Agreement. No member of the Group or any agent acting on
their behalf has taken or will take any action which would
cause this Agreement or any of the documents delivered
pursuant hereto, or the borrowing or use of proceeds of any
Advance to violate any Regulation or to violate the Securities
Exchange Act of 1934, as amended or any applicable U.S.
federal or state securities laws; and
15.1.17 The Borrower is not subject to regulation under the United
States Public Utility Holding Company Act of 1935, the United
States Federal Power Act or the United States Investment
Company Act of 1940 or to any United States federal or state
statute or regulation limiting its ability to incur
indebtedness; the Borrower is not an "investment company" or
"promoter" or "principal
35
underwriter" for an "investment company", as such terms are
defined in the U.S. Investment Company Act of 1940 (15
U.S.C.ss.ss.80a-1. et seq.); and none of the transactions
contemplated by this Agreement will violate the U.S.
Investment Company Act of 1940.
15.2 REPETITION
The Repeated Representations shall be deemed repeated by the Borrower on
the date of each Notice of Drawdown and on the last day of each Interest
Period by reference to the facts and circumstances existing at that time
and, in relation to the representation set out in 15.1.9, by reference to
the then current annual audited consolidated financial statements of the
Borrower, but the representation set out in 15.1.7 (b) shall not be
repeated or deemed repeated in relation to Substitution Advances or on the
last day of each Interest Period for Term Advances.
16. BORROWER'S UNDERTAKINGS
Throughout the Loan Period, the Borrower undertakes:
16.1.1 to provide to the Agent in sufficient numbers for all the
Banks:
(a) in respect of its financial years during the Loan Period
and within 45 Business Days from the date upon which the
COMMISSION DES OPERATIONS DE BOURSE (COB) approves the
Borrower's annual report, its annual report containing
its own accounts and the Group consolidated accounts
(balance sheet, profit and loss account and annex),
certified by the Borrower's auditors;
(b) within 120 Business Days after the end of the first half
of each of its financial years, its publicly available
semi-annual consolidated financial statements;
(c) as soon as possible, any information about the Offer
Documents and any documents relating thereto, the
financial situation or business of the Borrower (except
information reasonably considered to be confidential by
the Borrower) as may reasonably be requested by the
Agent or by any Bank through the Agent;
(d) all notices or other documents despatched by the
Borrower to its shareholders (or any class of them) or
to its holders of listed debt instruments issued by the
Borrower generally (or any class of them) or to the COB
(PROVIDED THAT such information has received a VISA
DEFINITIF from the COB) at the time the same are
despatched; and
(e) with each set of financial statements delivered pursuant
to paragraph (a) above, a Compliance Certificate signed
by a duly authorised signatory of the Borrower and
setting out calculations showing that the financial
covenants referred to in Clause 17 (FINANCIAL COVENANTS)
have been complied with;
36
16.1.2 forthwith to inform the Agent of any change in the persons
authorised to represent the Borrower hereunder;
16.1.3
(a) to notify the Agent as soon as possible (1) of the
occurrence of any Event of Default or Special Early
Termination Event or of any Potential Event of Default
or Potential Special Early Termination Event of which it
becomes aware and (2) if at any time it becomes illegal
for the Borrower to perform its obligations under this
Agreement;
(b) to confirm, at the request of the Agent (or the Banks
through the Agent), that no Event of Default or Special
Early Termination Event or Potential Event of Default or
Potential Special Early Termination Event has occurred
and is continuing except those of which it has already
been notified and those of which details are given in
such confirmation;
(c) and at the same time as giving a notice under (a) or (b)
above, to indicate the measures that it has taken or
intends to take in order to remedy any Event of Default
or Special Early Termination Event and any Potential
Event of Default or Potential Special Early Termination
Event;
16.1.4 to inform the Agent, as soon as it has knowledge thereof, of
any event which results in or may result in any of the
representations contained in Clause 15 (BORROWER'S
Representations) or contained in any document provided under
this Agreement becoming inaccurate;
16.1.5 to obtain, maintain and renew all authorisations, licences or
consents required (and take any other steps necessary) to
ensure the validity of this Agreement and to enable the
Borrower lawfully to perform its obligations hereunder;
16.1.6 to take all such steps and do all things as are necessary to
ensure that it has the right to and is duly qualified to
conduct its business as it is conducted from time to time in
all relevant jurisdictions;
16.1.7 not to grant or allow to exist over its assets any Security
save for:
(a) any Security created over an asset to secure finance for
the acquisition price or costs of improvement of such
asset PROVIDED THAT the amount of financial indebtedness
secured by such Security remains confined to such asset;
(b) any Security over securities (including any debenture,
bond or note) or over sums of money granted in favour of
the clearing system of any regulated market or for the
purposes of a transaction concluded in the ordinary
course of the Borrower's cash management;
(c) any Security arising out of a refinancing by the
Borrower of any financial indebtedness secured by
encumbrances permitted under paragraphs (a) to
37
(b) above, provided that the amount of such financial
indebtedness secured is not subsequently increased or
secured by any additional asset or revenues;
(d) statutory privileges (PRIVILEGES XXXXXX);
(e) other Security created by the Borrower not falling in
the above paragraphs PROVIDED THAT the aggregate amount
of financial indebtedness secured by such Security does
not at any time exceed 15% of the AXA Net Worth; and
(f) any Security over Margin Stock.
16.1.8
(a) not without the prior written consent of an Instructing
Group to vary the terms of the Tender Offer or the
Merger Agreement or waive any condition of the Tender
Offer or the Merger Agreement in any way which is
materially adverse to the interests of the Finance
Parties (and the Borrower shall procure that AXA Merger
Corp. complies with this Clause);
(b) to make the Tender Offer on the terms detailed in the
Offer Documents;
(c) to ensure that the transactions contemplated by the
Offer Documents comply in all material respects, with
all provisions of all applicable laws and regulations;
(d) to ensure that all consents and approvals of, filings
and registrations with, and all other actions in respect
of, all governmental agencies, authorities or
instrumentalities required to be obtained, given, filed
or taken by the Borrower in order to make or implement
the Tender Offer or to implement the Merger have been
or, prior to the time when required, will have been,
obtained, given, filed or taken and will be in full
force and effect, except where failure to obtain any
such consent or approval or do any such action would not
materially adversely affect the Tender Offer or the
Merger (as the case may be); and
(e) from time to time and promptly upon request give to the
Agent reasonable details of such matters relevant to the
Tender Offer as the Agent may reasonably request subject
to any relevant requirement of the U.S. securities laws
and regulations, any relevant stock exchange or any
applicable law or regulation.
16.1.9 subject to the relevant requirements of U.S. securities laws
and regulations, any relevant stock exchange or any applicable
law or regulation, to obtain the prior written consent of the
Agent to any written publication in connection with the Tender
Offer which makes reference to the Facilities or to some or
all of the Banks, the Agent or the Arrangers;
38
16.1.10 to ensure that at least 80% of the consolidated revenues
(PRODUITS BRUTS D'EXPLOITATION) of the Group are generated by
insurance business, asset management and financial services;
and
16.1.11 to ensure that all financial information delivered by it to
the Agent has been prepared in good faith and is complete and
accurate in all material respects.
17. FINANCIAL COVENANTS
17.1 FINANCIAL COVENANTS
The Borrower shall ensure that:
17.1.1 at all times the ratio of financial debt to Consolidated Net
Worth shall not be more than 1:1 (for the avoidance of doubt
financial debt with respect to the Original Financial
Statements is EUR 5,400,000,000); and
17.1.2 the Consolidated Shareholder Funds are not at any time less
than 75% of the figure specified in the Original Financial
Statements (being EUR 24,300,000,000).
17.2 FINANCIAL DEFINITIONS
17.2.1 "CONSOLIDATED NET WORTH" means the sum of (i) total
shareholder's equity (including : ordinary shares, capital in
excess of nominal value and retained earning and reserves),
(ii) minority interests, (iii) instruments junior to
subordinated debt (if any), (iv) subordinated debt and (v)
mandatorily convertible bonds and notes. For the avoidance of
doubt, consolidated Net Worth with respect to the Original
Financial Statements is equal to EUR 29,100,000,000.
17.2.2 "CONSOLIDATED SHAREHOLDER FUNDS" means the sum of items (i)
and (iii) in the definition of Consolidated Net Worth. For the
avoidance of doubt, Consolidated Shareholders Funds with
respect to the Original Financial Statements is equal to EUR
24,300,000,000.
17.2.3 The expressions used in the definitions in Clauses 17.1,
17.2.1 and 17.2.2. mean, as at any date, respectively, the
figures which would appear in the lines respectively so
entitled in the most recent consolidated financial statements
of the Borrower if they were presented in the same manner as,
and prepared in accordance with the principles followed for
the preparation of, the Original Financial Statements.
17.3 FINANCIAL TESTING
The financial covenants set out in Clause 17.1 (FINANCIAL COVENANTS) shall
be tested by reference to each of the annual consolidated financial
statements delivered pursuant to Clause 16.1.1 (a).
39
17.4 ACCOUNTING TERMS
All accounting expressions which are not otherwise defined herein shall be
construed in accordance with generally accepted accounting principles in
France (or US GAAP if, at the relevant time, the Borrower's annual
consolidated financial statements are prepared in accordance with US
GAAP).
18. EVENTS OF DEFAULT AND SPECIAL EARLY TERMINATION EVENTS
18.1 EVENTS OF DEFAULT
The following events shall be Events of Default PROVIDED THAT in relation
to the events described in sub-clauses 18.1.1, 18.1.3 and 18.1.5 below an
Event of Default shall only occur once the grace period provided for
therein has expired without such default having been remedied:
18.1.1 failure by the Borrower to pay any amount due and payable
under this Agreement within 5 Business Days following the due
date for payment;
18.1.2 failure by the Borrower to comply with the provisions of
Clause 17.1 (FINANCIAL COVENANTS), (in any material respect)
Clause 16.1.10 and Clause 16.1.3;
18.1.3 failure by the Borrower to perform any of its obligations
(other than those referred to in Clauses 18.1.1 and 18.1.2
above) unless such non-performance is remedied within 30 days
after the Agent has given notice thereof to the Borrower;
18.1.4 any representation or statement made pursuant to Clause 15
(BORROWER'S REPRESENTATIONS) or deemed to be repeated pursuant
to Clause 15.2 (REPETITION) is or proves to have been
incorrect or misleading in any material respect when made or
deemed repeated or any other material information provided by
the Borrower under this Agreement is or proves to have been
incorrect or misleading in any material respect on the date
upon which such information is provided;
18.1.5 either (i) failure by the Borrower to pay on the due date any
financial indebtedness owed by it (subject to any applicable
grace period) if in consequence the aggregate amount of all
financial indebtedness unpaid by it on the due date exceeds
EUR 115,000,000 or its equivalent in any other currency or
(ii) any financial indebtedness in an aggregate amount in
excess of EUR 115,000,000 or its equivalent in any other
currency of the Borrower becomes due prior to its stated
maturity as a result of an event of default (however
described) excluding, however, any such unpaid amounts which
are contested in good faith by the Borrower, or which are paid
within any grace period provided for in the contract (in its
original form or as amended) under which such amount has
become due;
18.1.6 the Borrower commences negotiations with all of its creditors
(or certain of them) with view to rescheduling or readjusting
all or any substantial part of its
40
financial indebtedness which it admits in writing that it will
otherwise be unable to pay when it falls due;
18.1.7 a MANDATAIRE AD HOC is appointed for the Borrower, if his
terms of reference include such general negotiations with
creditors are as described in Clause 18.1.6;
18.1.8 commencement by the Borrower, in relation to the Borrower, of
proceedings for REGLEMENT AMIABLE in accordance with articles
L. 611-3 to L.611-6 of the French CODE DE COMMERCE;
18.1.9 the Borrower is in a state of CESSATION DES PAIEMENTS;
18.1.10 judgement for REDRESSEMENT JUDICIAIRE or judgement or order
for LIQUIDATION JUDICIAIRE are entered in relation to the
Borrower under articles L. 620-1 to L. 628-3 of the French
CODE DE Commerce; and
18.1.11 any event or series of events occurs which in the reasonable
opinion of the Agent acting on the instructions of an
Instructing Group irremediably compromises the ability of the
Borrower to perform in a timely manner any of its payment
obligations under this Agreement.
18.2 ACCELERATION AND CANCELLATION
Upon the occurrence of an Event of Default and at any time thereafter, the
Agent may without MISE EN DEMEURE or any other judicial or extra judicial
step (and, if so instructed by an Instructing Group, shall) by notice to
the Borrower but subject to the mandatory provisions of articles L. 620-1
to L.628-3 of the French CODE DE COMMERCE:
18.2.1 declare all or any part of the Loan to be immediately due and
payable (whereupon the same shall become so payable together
with accrued interest thereon and any other sums then owed by
the Borrowers hereunder) or declare all or any part of the
Loan to be due and payable on demand of the Agent; and/or
18.2.2 declare that any undrawn portion of the Facilities shall be
cancelled, whereupon the same shall be cancelled and the
Available Commitment of each Bank shall automatically be
reduced to zero.
18.3 SPECIAL EARLY TERMINATION EVENTS
18.3.1 The following events shall be Special Early Termination
Events:
(a) either (i) failure by any Material Subsidiary to pay on
the due date any financial indebtedness owed by it
(subject to any applicable grace period) if, in
consequence, the aggregate amount of all financial
indebtedness (excluding indebtedness referred to in
paragraph (vi) of "FINANCIAL INDEBTEDNESS" in Clause
1.2.1) unpaid by it on the due date exceeds EUR
100,000,000 or its equivalent in any other currency
or (ii) any financial indebtedness (excluding
indebtedness referred to in paragraph (vi) of
41
"FINANCIAL INDEBTEDNESS" in Clause 1.2.1) in an
aggregate amount in excess of EUR 100,000,000 or its
equivalent in any other currency of any Material
Subsidiary becomes due prior to its stated maturity
as a result of an event of default (however
described) excluding, however, any such unpaid
amounts which are contested in good faith by such
Material Subsidiary, or which are paid within any
grace period provided for in the contract (in its
original form or as amended) under which such amount
has become due;
(b) any Material Subsidiary commences negotiations with all
its creditors (or certain of them) with view to
rescheduling or readjusting all or any substantial part
of its financial indebtedness which it admits in writing
it will otherwise be unable to pay when it falls due;
(c) a MANDATAIRE AD HOC is appointed for any Material
Subsidiary, if his terms of reference include such
general negotiations with creditors are as described in
paragraph (b) above;
(d) commencement by any Material Subsidiary, in relation to
any Material Subsidiary, of proceedings for REGLEMENT
AMIABLE in accordance with the provisions of articles L.
611-3 to L. 611-6 of the French CODE DE COMMERCE;
(e) any Material Subsidiary is in a state of CESSATION DES
PAIEMENTS;
(f) judgement for REDRESSEMENT JUDICIAIRE or judgement or
order for LIQUIDATION JUDICIAIRE are entered in relation
to any Material Subsidiary under articles L. 620-1 to
L628-3 of the French CODE DE COMMERCE;
(g) any Material Subsidiary which conducts business outside
France becomes insolvent within the meaning of any law
(of a country other than France) concerning insolvency
or bankruptcy, or any event occurs which under any such
law has a similar or analogous effect to any of the
events mentioned in paragraphs (b) to (f) (inclusive
above);
18.3.2 Upon notification by the Borrower to the Agent of the
occurrence of a Special Early Termination Event, the Interest
Period of any Advance then current which has an Interest
Period greater than 6 months shall (except for the purposes of
Clause 20.2 (INTEREST DIFFERENTIAL)) be treated as having been
reduced to 6 months and the Agent may (and, if so instructed
by an Instructing Group, shall) by notice to the Borrower but
subject to the mandatory provisions of articles L. 620-1 to L.
628-3 of the French CODE DE COMMERCE:
(a) declare that any undrawn portion of the Facilities shall
be cancelled, whereupon the same shall be cancelled;
(b) declare that the Available Commitment of each Bank shall
be reduced to zero, and that therefore any Revolving
Advances repaid in accordance with this Agreement may
not be redrawn; and
42
(c) declare that the Term Advances shall become repayable at
the end of the then current Interest Period, whereupon
they shall become so repayable.
18.4 ADVANCES DUE ON DEMAND
If, pursuant to Clause 18.2 (ACCELERATION AND CANCELLATION), the Agent
declares all or any part of the Loan to be due and payable on demand of
the Instructing Group, then, and at any time thereafter, the Agent may
(and, if so instructed by an Instructing Group, shall) by notice to the
Borrower without MISE EN DEMEURE or any other judicial or extra judicial
step:
18.4.1 require repayment of all or such part of the Loan on such date
as it may specify in such notice (whereupon the same shall
become due and payable on the date specified) or withdraw its
declaration with effect from such date as it may specify;
and/or
18.4.2 select as the duration of any Interest Period which begins
whilst such declaration remains in effect a period of six
months or less.
19. DEFAULT INTEREST
19.1 DETERMINATION OF THE RATE OF DEFAULT INTEREST
The Borrower shall, subject to the provisions of Clause 19.2 (UNPAID
INTEREST) (on demand and without prejudice to the other rights and
remedies of the Banks), pay interest on all Unpaid Amounts calculated for
the period from the due date for payment until the date of effective
payment (the "LATE PAYMENT PERIOD") on a day-to-day basis at a rate per
annum equal to the sum of (i) the Reference Rate which would have applied
to an Advance in the currency of the Unpaid Amount made on the first day
of the Late Payment Period for successive Interest Periods of successive
durations determined by the Agent, (ii) the Margin, (iii) 1% and (iv) the
Mandatory Costs Rate, if any, in respect thereof at such time.
19.2 UNPAID INTEREST
The provisions of Clause 19.1 (DETERMINATION OF THE RATE OF DEFAULT
INTEREST) shall only apply to Unpaid Amounts which correspond to interest
payable under Clause 19.1 if, within the meaning of Article 1154 of the
French Civil Code, such interest is due for a period of at least one year.
19.3 PAYMENT
Late interest due on Unpaid Amounts shall be payable on demand by the
Agent.
19.4 OTHER PROVISIONS APPLICABLE TO UNPAID AMOUNTS
The provisions of Clause 13.1 (ADDITIONAL COSTS) shall apply to Unpaid
Amounts in the same way as to Advances.
43
20. INDEMNITY
20.1 GENERALLY
The Borrower shall within 3 Business Days of demand by the Agent indemnify
each Bank, the Arrangers and the Agent and in each case each of their
affiliates and each of their respective officers, directors, employees,
agents, advisors and representatives (each, an "INDEMNIFIED PARTY")
against all duly justified costs and losses which they may incur as a
result:
20.1.1 of any default by the Borrower in the performance of any of
its obligations (including any loss arising from Funding Costs
incurred to finance an Unpaid Amount during any period
throughout which, in accordance with the provisions of Clause
19.2 (UNPAID INTEREST), late payment interest does not accrue
on that amount);
20.1.2 of the occurrence of an Event of Default or Special Early
Termination Event; or
20.1.3 of any act or omission on the part of the Borrower or on the
part of any director, employee, agent, advisor or
representative of the Borrower relating to the Tender Offer or
the Merger or the transactions contemplated hereby or thereby,
or any use made or proposed to be made of the proceeds of the
Facilities (except to the extent such claim, damage, loss,
liability, cost or expense resulted from such Indemnified
Party's negligence or wilful misconduct).
20.2 INTEREST DIFFERENTIALS
In the event that:
20.2.1 the Participation of a Bank in an Advance is not made
available to the Borrower as a result of the application of
the provisions of Clause 3.1.5 or 6.1.5 (as the case may be)
or for another reason attributable to the default of the
Borrower; or
20.2.2 the Participation of a Bank in any Advance is repaid in whole
or in part otherwise than on the last day of any Interest
Period,
then, the Borrower shall pay to the relevant Bank any positive Interest
Differential accruing during:
(a) in the circumstances described in sub-clause 20.2.1, a calculation
period equal to the period which would have been the first Interest
Period in respect of such Advance; and
(b) in the circumstances described in sub-clause 20.2.2, a calculation
period equal to the period from the date upon which such repayment
is made until the final day of the relevant Interest Period.
44
21. PAYMENT
21.1 CURRENCY OF ACCOUNT AND PAYMENT
The dollar is the currency of account and of payment of all sums payable
pursuant to this Agreement PROVIDED THAT the Borrower shall:
21.1.1 repay each Advance and pay all Unpaid Amounts in the currency
in which such Advance or Unpaid Amount is denominated;
21.1.2 pay all interest in the currency in which the sum on which it
has accrued is denominated;
21.1.3 make payments in respect of costs and expenses in the currency
in which they were incurred; and
21.1.4 make all payments due under Clause 13.1 (ADDITIONAL COSTS) in
the currency in which the sums which are claimed are
denominated.
21.2 CURRENCY INDEMNITY
21.2.1 This Clause 21.2 shall apply where, as a result of a
judgement, enforcement proceedings or an order made in the
course of the Borrower's insolvency proceedings, the Borrower
is required to make any payment to any Finance Party of any
amount in a currency (a "CONVERSION CURRENCY"), other than the
currency in which such amount would otherwise have been
payable pursuant to the provisions of this Agreement (the
"CONTRACTUAL CURRENCY").
21.2.2 In such case, the Borrower shall indemnify such Finance Party
against any loss that it may incur as a result of any
difference in the exchange rate used for the conversion of
such amount into the conversion currency and the rate at which
such Finance Party is able to convert such amount into the
contractual currency on the date upon which such Finance Party
actually receives payment of the amount in the conversion
currency.
21.3 PAYMENTS TO THE AGENT
All payments due from the Borrower to a Finance Party shall be made by the
Borrower to the Agent and payment made in this manner shall discharge the
Borrower PRO TANTO from its payment obligations towards that Finance
Party. The Agent shall, with the exception of any payments received for
its own account, forthwith make any such amounts available to the relevant
Finance Party.
21.4 METHODS OF PAYMENT
21.4.1 All payments to be made by the Borrower or a Bank shall be
made available to the Agent for value on the due date
therefor, to such bank account as may have been specified by
written notice, in good time, by the Agent to the Borrower and
to the Banks.
45
21.4.2 The Agent shall pay all amounts which it receives for the
account of any other Party to this Agreement as soon as
possible for same value date by crediting such amount to such
bank account as may have been specified to the Agent in good
time by that other Party.
21.4.3 All payments due on any date which is not a Business Day shall
be made on the next succeeding Business Day unless this would
defer the payment to the following calendar month in which
case payment shall be made on the last Business Day of the
then current calendar month.
21.5 CLAWBACK
The Agent may assume that an amount corresponding to any payment due to
any Party has been paid to it on the due date for such payment and make
payment of such amount to the Party to whom such payment is due. In the
event that the Agent pays any amount to any Party and it proves to be the
case that it has not actually received such amount, then the Party to whom
such amount was paid shall, after having been informed thereof as soon as
the Agent has knowledge thereof, on first demand of the Agent, refund such
amount to the Agent together with a sum representing interest for the
period commencing on the date upon which such payment is made and ending
on the date upon which such refund is received by the Agent, calculated at
an annual rate corresponding to the Funding Costs of the Agent in relation
to such amount (for sums paid to a Bank) or to the sum of such Funding
Costs, the Margin and the Mandatory Costs Rate in respect thereof at such
time (for sums paid to the Borrower).
21.6 SET-OFF BY THE BORROWER
Without prejudice to Clause 12.1 (WITHHOLDINGS) the Borrower must make all
payments without deduction for set-off or withholding of any kind.
21.7 APPLICATION OF PAYMENTS
The Agent shall, regardless of any directions by the Borrower and unless
the Banks and with respect to sub-clause 21.7.1 the Arrangers and the
Agent otherwise agree, apply all amounts received by it under this
Agreement in the following order:
21.7.1 in payment of the costs and expenses incurred by each of the
Agent and the Arrangers in such capacity;
21.7.2 in payment to the Banks of late payment interest due on any
Unpaid Amount;
21.7.3 in payment to the Banks of interest due but unpaid;
21.7.4 in payment to the Banks of any amounts of principal due but
unpaid; and
21.7.5 in payment of any other sum due hereunder but unpaid.
46
21.8 PAYMENTS SYSTEMS AND THE AGENT
A payment will be deemed to have been made by the Agent on the date on
which it is required to be made under this Agreement if the Agent has, on
or before that date, taken steps to make that payment on that date in
accordance with the regulations or operating procedures of the clearing or
settlement system used by the Agent in order to make the payment.
21.9 REDENOMINATION OF NATIONAL CURRENCY UNITS
If after the date of this Agreement a member state becomes a Subsequent
Participant, all obligations under this Agreement to make a payment in its
National Currency Unit shall be redenominated into euro on the date on
which it becomes a Subsequent Participant (but otherwise in accordance
with EMU legislation, any other applicable law and relevant market
practice and conventions relating to such redenomination).
22. SHARING
22.1 REDISTRIBUTION
In the event that a Bank (a "RECOVERING BANK") receives (including by
operation of any set off) an amount (an "EXCESS AMOUNT") that is a greater
proportion of any payment due to itself and to one or more other Banks
(the "OTHER BANKS") than the amount which it would have received if the
payment had been made by the Borrower to the Agent and distributed by the
Agent pursuant to Clause 21.7 (APPLICATION OF PAYMENTS):
22.1.1 such Bank shall forthwith notify the Agent (and the Agent
shall forthwith notify the other Banks) and pay to the Agent
the excess amount;
22.1.2 the Agent shall distribute the excess amount among such other
Banks as certify that they are outside the scope of Clause
22.3 (EXCLUSIONS) PRO RATA to their share of the amount due
from the Borrower against delivery by each of them of a
subrogation certificate containing a waiver of the benefit of
Article 1252 of the French Civil Code, which the Agent shall
deliver to the Recovering Bank; and
22.1.3 the Recovering Bank shall be subrogated to the rights of the
other Banks against the Borrower, so that the Borrower shall
become liable to pay to the Recovering Bank an amount equal to
the excess amount.
22.2 RECOVERIES
In the event that following its distribution in accordance with Clause
22.1 (REDISTRIBUTION) any excess amount becomes repayable by the
Recovering Bank, then each of the other Banks shall repay to the
Recovering Bank an amount equal to the portion of the excess amount which
it received and the Recovering Bank's right of subrogation under Clause
22.1 (REDISTRIBUTION) shall be cancelled.
47
22.3 EXCLUSIONS
In the event that the Recovering Bank receives the excess amount as a
result of legal proceedings, the "other Banks" referred to in sub-clause
22.1.2 of Clause 22.1 (REDISTRIBUTION) shall not include such Banks as
have been informed of such proceedings by the Recovering Bank and having
had the option to join in such proceedings, have not done so.
23. COMMITMENT COMMISSION AND FEES
23.1 COMMITMENT COMMISSION
23.1.1 The Borrower shall pay to each Bank a commitment commission on
the amount of such Bank's Available Revolving Commitment from
day to day during that part of the Availability Period for the
Revolving Facility which commences on the earlier of 15
December 2000 or the day falling thirty (30) days after the
date of this Agreement, such commitment commission to be
calculated at the rate of 0.11 per cent. per annum.
23.1.2 The Borrower shall pay to each Bank a commitment commission on
the amount of such Bank's Available Term Commitment from day
to day during the period from the date of this Agreement until
the end of the Availability Period for Term Advances, such
commitment commission to be calculated at the rate of 0.125
per cent. per annum.
23.1.3 Commitment commission under sub-clauses 23.1.1 and 23.1.2 is
payable (i) for the first time on 15 March 2001, (ii)
thereafter on the last day of each successive period of three
months (as from that date), (iii) with respect to the
commitment commission pursuant to sub-clause 23.1.1, on the
last day of the Availability Period for Revolving Advances and
(iv) with respect to the commitment commission pursuant to
sub-clause 23.1.2 on the last day of the Availability Period
for Term Advances.
23.1.4 The Agent shall, at least five Business Days prior to the date
on which an amount of commitment commission is payable, notify
the Borrower of the amount then payable and the date on which
payment is to be made, subject to any adjustments if any
further Advances are made. Failure by the Agent to give any
such notice shall not affect the Borrower's obligation to make
payments of the amount of commitment commission then due.
23.2 UTILISATION FEE
23.2.1 The Borrower shall, in respect of each day until the date
falling 12 months after the Closing Date for the Tender Offer
on which the Dollar Amount of the Term Loan is equal or
exceeds $ 1,375,000,000, pay to the Banks a utilisation fee at
the rate of 0.025 per cent per annum on the Dollar Amount of
the Term Loan outstanding on the relevant day.
48
23.2.2 The Borrower shall pay accrued utilisation fee on the last day
of each successive period of three months (as from the date of
this Agreement) and, on the date falling 12 months after the
Closing Date for the Tender Offer.
23.2.3 The Agent shall, at least five Business Days prior to the date
on which an amount of utilisation fee is payable, notify the
Borrower of the amount then payable and specify the date on
which payment is to be made. Failure by the Agent to give any
such notice shall not affect the Borrower's obligation to make
payments of the amount of utilisation fee then due.
23.3 FLAT FEES
The Borrower shall pay in accordance with the terms of the Fee Letters the
fees therein specified.
23.4 AGENCY FEE
The Borrower shall pay to the Agent for its own account an agency fee
specified in the letter dated 14 December 2000 from the Agent to the
Borrower at the times and in the amounts therein specified.
24. COSTS AND EXPENSES
24.1 COSTS AND EXPENSES OF THE AGENT AND ARRANGERS
The Borrower shall reimburse:
24.1.1 the Agent and the Arrangers, within seven (7) Business Days
after demand by the Agent for all duly itemised reasonable
costs and expenses (including the reasonable fees and expenses
of legal or other advisors up to the amount specified in the
Fee Letters) together with any value added tax thereon, which
may be incurred by them in connection with the preparation,
negotiation and execution of this Agreement and the
satisfaction of the conditions precedent under Clause 2.6;
24.1.2 the Agent and the Banks, on first demand by the Agent, for all
costs and expenses (including the reasonable fees and expenses
of legal or other advisors) together with value added taxes
payable thereon, incurred by the Agent or any Bank:
(a) for the purposes of any amendment of this Agreement or
as a result of a waiver by the Banks of any of their
rights hereunder, in either case at the request of the
Borrower; and
(b) in the preservation of any of its rights following a
failure by the Borrower to fulfil any of its obligations
hereunder, in enquiring into the existence of any Event
of Default or Special Early Termination Event and
assessing the means of remedying it or in enforcing the
obligations of the Borrower.
49
24.2 STAMP AND REGISTRATION TAXES
The Borrower shall pay all stamp, registration and other similar taxes
which are payable in France in respect of this Agreement.
24.3 BANKS' LIABILITY FOR COSTS
In the event that the Borrower fails to pay to the Arrangers or the Agent
any costs and expenses incurred by them and duly justified, in accordance
with terms of this Clause 24, the Banks shall indemnify the Arrangers and
the Agent PRO RATA to their Proportionate Amounts, provided that the
Borrower shall immediately refund to the Banks any payments so made by
them.
25. THE AGENT, THE ARRANGERS AND THE BANKS
25.1 APPOINTMENT OF THE AGENT
Each of the Arrangers and the Banks hereby appoints the Agent (who
accepts) to act as its agent in connection herewith and authorises the
Agent to exercise such rights, powers, authorities and discretions as are
specifically delegated to the Agent by the terms hereof together with all
such rights, powers, authorities and discretions as are reasonably
incidental thereto.
25.2 AGENT'S DISCRETIONS
The Agent may:
25.2.1 assume, unless it has, in its capacity as agent for the Banks,
received notice to the contrary from any other Party, that (a)
any representation made or deemed to be made by the Borrower
in connection herewith is true, (b) no Event of Default or
Potential Event of Default or Special Early Termination Event
or Potential Special Early Termination Event has occurred, (c)
the Borrower is not in breach of its obligations hereunder and
(d) any right, power, authority or discretion vested herein
upon an Instructing Group, the Banks or any other person or
group of persons has not been exercised;
25.2.2 assume that the Facility Office of each Bank is that specified
under that Bank's signature in this Agreement (or, in the case
of a Bank which becomes a party hereto after the date hereof
by virtue of a Transfer Agreement, the Facility Office
specified in that agreement) until it has received from such
Bank a notice designating some other office of such Bank to
replace any such Facility Office and act upon any such notice
until the same is superseded by a further such notice;
25.2.3 engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or
services may to it seem necessary, expedient or desirable and
rely upon any advice so obtained;
50
25.2.4 rely as to any matters of fact which might reasonably be
expected to be within the knowledge of the Borrower upon a
certificate signed by or on behalf of the Borrower;
25.2.5 rely upon any communication or document believed by it to be
genuine;
25.2.6 refrain from exercising any right, power or discretion vested
in it as agent hereunder unless and until instructed by an
Instructing Group as to whether or not such right, power or
discretion is to be exercised and, if it is to be exercised,
as to the manner in which it should be exercised; and
25.2.7 refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding
arising out of or in connection with this Agreement until it
shall have received such security as it may require (whether
by way of payment in advance or otherwise) for all costs,
claims, losses, expenses (including legal fees) and
liabilities together with any tax thereon which it will or may
expend or incur in complying with such instructions.
25.3 AGENT'S OBLIGATIONS
The Agent shall:
25.3.1 promptly inform each Bank of the contents of any notice or
document received by it in its capacity as Agent from the
Borrower hereunder;
25.3.2 promptly notify each Bank of the occurrence of (i) any Event
of Default under Clause 18.1.1 and (ii) any other Event of
Default or any Potential Event of Default and any Special
Early Termination Event or Potential Special Early Termination
Event of which the Agent has notice from any other Party;
25.3.3 save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it by an Instructing
Group, which instructions shall be binding on the Arrangers
and the Banks provided that such instructions shall not
authorise the Agent to act on behalf of a Bank (without first
obtaining that Bank's consent) in any legal or arbitration
proceedings relating to this Agreement; and
25.3.4 if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in it as
agent hereunder.
25.4 EXCLUDED OBLIGATIONS
Notwithstanding anything to the contrary expressed or implied herein,
neither the Agent nor the Arrangers shall:
25.4.1 be bound to enquire as to (a) whether or not any
representation made or deemed to be made by the Borrower in
connection herewith is true, (b) the occurrence or otherwise
of any Event of Default or Potential Event of Default and any
Special Early Termination Event or Potential Special Early
Termination Event, (c) the
51
performance by the Borrower of its obligations hereunder or
(d) any breach by the Borrower of its obligations hereunder;
25.4.2 be bound to account to any Bank for any sum or the profit
element of any sum received by it for its own account;
25.4.3 be bound to disclose to any other person any information
relating to any member of the Group if it receives that
information with its consent on a confidential basis or if
such disclosure would or might in its opinion constitute a
breach of any law or be otherwise actionable at the suit of
any person;
25.4.4 be under any obligations other than those for which express
provision is made herein.
25.5 INDEMNIFICATION
Each Bank shall, in its Proportionate Amount, from time to time on demand
by the Agent, indemnify the Agent against any and all costs, claims,
losses, expenses (including legal fees) and liabilities together with any
tax thereon which the Agent may incur, otherwise than by reason of its own
gross negligence or wilful misconduct, in acting in its capacity as agent
hereunder (other than any which have been reimbursed by the Borrower
pursuant to Clause 20 (INDEMNITY) or otherwise hereunder).
25.6 EXCLUSION OF LIABILITIES
Except in the case of gross negligence or wilful default, none of the
Agent and the Arrangers accepts any responsibility:
25.6.1 for the adequacy, accuracy and/or completeness of the
Information Memorandum or any other information supplied by
the Agent or the Arrangers, by the Borrower or by any other
person in connection herewith or in connection with any other
agreement or document entered into or made in connection with
this Agreement;
25.6.2 for the legality, validity, effectiveness, adequacy or
enforceability of this Agreement or any other agreement or
document made in connection with this Agreement; or
25.6.3 for the exercise of, or the failure to exercise, any
judgement, discretion or power given to any of them by or in
connection with this Agreement or any other agreement or
document entered into or made in connection with this
Agreement.
Accordingly, none of the Agent and the Arrangers shall be under any
liability in respect of such matters, save in the case of gross negligence
or wilful misconduct.
52
25.7 NO ACTIONS
Each of the Banks agrees that it will not assert or seek to assert against
any director, officer or employee of the Agent or any Arranger any claim
it might have against any of them in respect of the matters referred to in
Clause 25.6 (EXCLUSION OF LIABILITIES).
25.8 BUSINESS WITH THE GROUP
The Agent and each of the Arrangers may accept deposits from, lend money
to and generally engage in any kind of banking or other business with any
member of the Group.
25.9 RESIGNATION
25.9.1 The Agent may resign its appointment as such at any time
without assigning any reason by giving not less than thirty
days' prior notice to that effect to each of the other
Parties, PROVIDED THAT no such resignation shall be effective
until a successor for the Agent is appointed in accordance
with the succeeding provisions of this Clause 25.
25.9.2 After consultation in good faith with the Borrower an
Instructing Group may, by notice to the Agent, require it to
resign in accordance with Clause 25.9.1 above. In this event,
the Agent shall resign in accordance with Clause 25.9.1 above.
25.10 SUCCESSOR AGENT
If the Agent gives notice of its resignation pursuant to Clause 25.9
(RESIGNATION), then any reputable and experienced bank or other financial
institution may be appointed as a successor to the Agent by an Instructing
Group (following consultation in good faith with the Borrower) during the
period of such notice but, if no such successor is so appointed, the Agent
may appoint such a successor itself (following consultation in good faith
with the Borrower).
25.11 RIGHTS AND OBLIGATIONS
If a successor to the Agent is appointed under the provisions of Clause
25.10 (SUCCESSOR AGENT) and has accepted its appointment as Agent, then
(a) the retiring Agent shall be discharged from any further obligation
hereunder but shall remain entitled to the benefit of the provisions of
this Clause 25 and (b) its successor and each of the other Parties shall
have the same rights and obligations amongst themselves as they would have
had if such successor had been a party hereto.
25.12 OWN RESPONSIBILITY
It is understood and agreed by each Bank that at all times it has itself
been, and will continue to be, solely responsible for making its own
independent appraisal of and investigation into all risks arising under or
in connection with this Agreement including, but not limited to:
53
25.12.1 the financial condition, creditworthiness, condition, affairs,
status and nature of each member of the Group;
25.12.2 the legality, validity, effectiveness, adequacy and
enforceability of this Agreement and any other agreement or
document entered into or made in connection with this
Agreement;
25.12.3 whether such Bank has recourse, and the nature and extent of
that recourse, against the Borrower or any other person or any
of their respective assets under or in connection with this
Agreement, the transactions herein contemplated or any other
agreement or document entered into or made in connection with
this Agreement; and
25.12.4 the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent or
the Arrangers, the Borrower, or by any other person in
connection with this Agreement, the transactions contemplated
herein or any other agreement or document entered into or made
in connection with this Agreement.
25.13 AGENCY DIVISION SEPARATE
In acting as agent hereunder for the Banks, the Agent shall be regarded as
acting through its agency division which shall be treated as a separate
entity from any other of its divisions or departments and, notwithstanding
the foregoing provisions of this Clause 25, any information received by
some other division or department of the Agent may be treated as
confidential and shall not be regarded as having been given to the Agent's
agency division.
26. ASSIGNMENTS AND TRANSFERS
26.1 ASSIGNMENTS BY THE BORROWER
The Borrower shall not be entitled to assign or transfer all or any of its
rights or obligations.
26.2 TRANSFERS BY THE BANKS
26.2.1 A Bank (the "OLD BANK") may transfer any of its rights and
obligations under this Agreement VIS-A-VIS the Borrower to
another bank or financial institution (the "NEW BANK"), by
entering into a Transfer Agreement. Such a transfer:
(a) if it does not relate to the full amount of its
Commitment and/or its Participation in the Loan, as the
case may be, must relate to a Dollar Amount of at least
20,000,000 and an integral multiple of 10,000,000; and
(b) requires the prior written consent of the Borrower,
which the Borrower hereby gives if the transfer is to
another Bank or to any affiliate of a Bank.
26.2.2 The prior consent of the Borrower mentioned in Clause 26.2.1
shall be requested by the Agent for the account of the Old
Bank, and may not be
54
unreasonably withheld by the Borrower. The Borrower's consent
shall be deemed to have been given unless the Borrower shall
have notified the Agent to the contrary within ten Business
Days (which for the purposes of this sub-clause 26.2.2 shall
mean a day (other than Saturday or Sunday) on which banks
generally are open for business in Paris) of the request for
such consent. A Bank may, however, not transfer any part of
its Commitment in relation to a particular Commitment and/or
any part of its Participation in relation to a particular Loan
without transferring such part of its Commitment in relation
to the other Commitment and/or such part of its Participation
in relation to the other Loan in the same proportion.
26.2.3 Execution of a Transfer Agreement shall operate as from the
Transfer Date:
(a) to discharge the Old Bank, to the extent provided for in
the Transfer Agreement, from future obligations towards
the Borrower and the Agent and the other Banks;
(b) to transfer to the New Bank to the extent provided for
in the Transfer Agreement, the rights and obligations of
the Old Bank VIS-A-VIS the Borrower, the Agent and the
other Banks.
26.2.4 The New Bank shall through the Agent, promptly inform the
Borrower of the execution of the Transfer Agreement and its
effective date.
26.2.5 Nothing in this Clause 26 shall prevent a Bank from
transferring, by some other means than a Transfer Agreement,
all or part of its Participation in the Loan to another
financial institution, but any such transfer shall be subject
to the same conditions as are specified in Clause 26.2.1(a)
and (b).
26.3 FACILITY OFFICE
26.3.1 A Bank may, from time to time, change its Facility Office by
notifying the Agent of the address and details of the
replacement Facility Office. If as a result of any such change
the Bank is no longer an Eligible Bank, it shall only be
entitled under Clause 12.1 (WITHHOLDINGS) to an additional
payment in respect of interest accruing during a period after
which such change becomes effective to the extent that the
additional payment is referable to an increase in the
applicable withholding tax rate in France after such date;
26.3.2 The Agent shall notify the Borrower, as soon as possible, of
any change in Facility Office notified to it by a Bank.
27. MISCELLANEOUS
27.1 ASSIGNMENT FEE
On the date upon which any transfer under Clause 26.2 (TRANSFERS BY BANKS)
becomes effective (whether by virtue of a Transfer Agreement or some other
means) the transferee shall pay a fee of $ 750 plus any applicable tax to
the Agent.
55
27.2 COMMUNICATION
A Bank may disclose to any potential transferee a copy of this Agreement
and any information in such Bank's possession concerning the Borrower
which has been communicated to such Bank by the Arrangers, the Agent or
the Borrower or which is freely available to the public PROVIDED THAT no
information which is not freely available to the public may be so
disclosed unless, prior to such disclosure, the relevant Bank obtains from
the person to whom it wishes to make such disclosure a Confidentiality
Undertaking addressed to it.
27.3 NOTICE OF ASSIGNMENT
No assignment under Article 1689 of the French Civil Code shall be binding
on the Borrower and third parties until due notice of such transfer has
been duly given to the Borrower by way of SIGNIFICATION under Article 1690
of the French Civil Code.
28. CALCULATIONS AND EVIDENCE OF DEBT
28.1 BASIS OF ACCRUAL
Interest, default interest and utilisation fees and commitment commission
shall be calculated in accordance with current market practice from time
to time that it is to say, currently, on the basis of a year of 360 days
or 365 days (in the case of any amounts denominated in Sterling) and the
actual number of days elapsed.
28.2 ACCOUNTS
Each Bank, in respect of its own Participation, and the Agent, in respect
of the Loan, shall maintain, in accordance with usual banking practice,
accounts in which such Finance Party shall record the amounts of
principal, interest or other amounts owed by the Borrower as well as all
amounts paid hereunder.
28.3 EVIDENCE
The records referred to in Clause 28.2 (ACCOUNTS) shall be conclusive
evidence, in the absence of error, of the existence of and amounts of sums
due by the Borrower.
29. RECOURSE
Neither the Borrower nor any Bank shall be deemed to have waived all or
any part of its rights under this Agreement as the result of any delay in
exercising, failure to exercise or partial exercise of such right.
30. SEVERABILITY
The invalidity of any of the provisions hereof shall not result in the
invalidity of any other provision.
56
31. NOTICES
31.1 LANGUAGE
Any notice or document given or delivered by one Party to another under
this Agreement shall be in the English language.
31.2 DELIVERY
31.2.1 Any notice to be delivered pursuant to this Agreement shall be
sent in writing and delivered by hand (with a receipt of
delivery to be obtained), or by registered post (with a
receipt of delivery to be obtained), to the address of the
addressee Party as set out in Clause 31.3 (ADDRESSES).
31.2.2 Notwithstanding the provisions of sub-clause 31.2.1 above, any
notice between the Borrower and the Agent under Clause 3.1
(DRAWDOWN CONDITIONS FOR TERM ADVANCES), Clause 6.1 (DRAWDOWN
CONDITIONS FOR REVOLVING ADVANCES), Clause 9.3 (MARKET
Disruption) and Clause 10 (PAYMENT OF INTEREST) of this
Agreement must be sent by fax to the fax number and the
address of the recipient, set out in Clause 31.3 (ADDRESSES)
and any notice between the Agent and the Banks must be given
by fax, telex or electronic mail to the number or electronic
mail address (as relevant) given in Clause 31.3 (ADDRESSES).
31.2.3 Any communication to be made to the Borrower shall be deemed
delivered, as the case may be:
(a) on the date shown on the delivery receipt in the case of
delivery by registered post;
(b) on the date of sending (and receiving a positive
transmission report) if sent by fax (except that if the
transmission report is dated as of a day which is not a
Business Day the communication will be treated as
delivered on the next following Business Day);
(c) on the date of sending (and receiving a positive
delivery report) if sent by electronic mail (except that
if the delivery report is dated as of a day which is not
a Business Day the communication will be treated as
delivered on the next following Business Day);
(d) on the date marked on the receipt, in the case of
delivery by hand.
31.3 ADDRESSES
The address, fax number, telex number and electronic mail address of each
Party are as specified on the signature pages hereto, or in the case of a
Bank becoming a Bank by virtue of a Transfer Agreement, those specified in
the relevant agreement.
57
32. AMENDMENTS
32.1 GENERAL PRINCIPLES
32.1.1 The Agent may, subject to having received the prior written
consent of an Instructing Group:
(a) notify the Borrower that the Banks have agreed to waive
for a certain period or permanently any provision of
this Agreement inserted for their sole benefit; or
(b) agree with the Borrower an amendment to this Agreement.
32.1.2 Any such waiver or amendment shall be binding on all Parties.
32.2 EXCEPTIONS
32.2.1 The unanimous consent of the Banks is required for any
amendment to or waiver relating to:
(a) the definition of Instructing Group and Optional
Currency;
(b) an increase in the amount of the Loan or any Bank's
Commitment or any decrease in an amount payable to any
Finance Party;
(c) the rate of interest, fees or the amount of any other
sums due under this Agreement;
(d) the duration of Interest Periods selected by the
Borrower;
(e) the currency of account or payment under this Agreement;
(f) any postponement of either the due date for the payment
of any sum due from the Borrower or the Revolving Loan
Termination Date or the Term Loan Termination Date;
(g) the provisions of Clause 2.3 (OBLIGATIONS OF THE BANK
SEVERAL), Clause 2.4 (RIGHTS OF THE BANK SEVERAL) Clause
2.6 (CONDITIONS PRECEDENT FOR ADVANCES), Clause 22
(SHARING), Clause 26.1 (ASSIGNMENTS BY THE BORROWER) or
of this Clause 32; and
(h) any provision which requires the consent of all the
Banks.
32.2.2 The Agent shall not be obliged to agree with the Borrower an
amendment which:
(a) would result in any modification to the provisions of
Clause 24.1 (COSTS AND EXPENSES), Clause 25 (THE AGENT,
ARRANGERS AND BANKS) or this paragraph (a) of Clause
32.2.2; or
58
(b) would result in any modification of the rights of the
Agent or impose any additional obligation on the Agent.
32.2.3 No Bank shall be bound by any amendment to which it has not
agreed if such amendment would result in an increase of such
Bank's Commitment or a reduction in its entitlement to any
amounts due from the Borrower, or if it relates to a matter as
to which this Agreement requires its individual agreement.
33. TAUX EFFECTIF GLOBAL
For the purposes of the application of Articles L313-1 ET SEQ, R313-1 and
R313-2 of the French CODE DE LA CONSOMMATION, the Parties accept and agree
that by virtue of certain characteristics of the Loan (and in particular
the variable interest rate applicable to the Advances), the TAUX EFFECTIF
GLOBAL cannot be calculated at the date of signature of this Agreement.
The Agent has nonetheless delivered to the Borrower on the date of
signature of this Agreement, a letter containing an indicative calculation
of the TAUX EFFECTIF GLOBAL by reference to numbered examples based on the
hypotheses specified in such letter.
34. SCHEDULES
The Schedules to this Agreement form an integral part hereof.
35. APPLICABLE LAW
This Agreement is governed by French law.
36. JURISDICTION
The Parties accept the jurisdiction of the TRIBUNAL DE COMMERCE DE Paris
in relation to any dispute relating to the validity, interpretation or
performance of this Agreement.
59
SCHEDULE 4
CONDITIONS PRECEDENT
1. A K-BIS extract for the Borrower, not more than one month old.
2. A copy of the Borrower's constitutive documents (STATUTS), certified as
being a true and up-to-date copy, as at the date of signature of this
Agreement, by a duly Authorised Signatory.
3. A legal opinion from Xxxxxxxx Chance, Paris, French law legal counsel to
the Banks reasonably satisfactory to the Banks.
4. A legal opinion from the Legal Department of the Borrower.
5. Opinion from outside US counsel to the Borrower as to compliance with New
York State and US federal laws in relation to financing of the Tender
Offer and the Merger, and in particular compliance with the provisions of
the Investment Company Act, Regulation U and the Investment Advisors Act.
6. A resolution of the Borrower's management board (DIRECTOIRE) approving
this Agreement.
7. Specimen signatures and powers of attorney for those people having
authority to sign this Agreement, any Notice of Drawdown or any other
communication sent on behalf of the Borrower for the purposes of this
Agreement.
8. All authorisations which are either necessary or advisable in the Agent's
reasonable opinion (acting on the basis of legal advice) with respect to
the execution by the Borrower of this Agreement and any related documents
and the performance of its obligations hereunder or implementation of the
Tender Offer or the Merger.
9. A copy, certified a true copy by the Finance Director of the Borrower, of
its Original Financial Statements and a Compliance Certificate in relation
thereto.
10. A Certificate dated as at the date of this Agreement from the Finance
Director of the Borrower confirming that there is no Financial
Indebtedness secured by existing Security.
60
SIGNED THE 14TH DAY OF DECEMBER 2000 IN 6 ORIGINALS
THE BORROWER
AXA
By:
Address:
00000 Xxxxx
Xxxxxx
Fax: 00 0 00 00 00 00 and 00 0 00 00 00 00
E-mail:
Contact: Head of Corporate Finance and Treasury Department/Head of Legal
Department
THE ARRANGERS
BANK OF AMERICA INTERNATIONAL LIMITED
By:
Address: Bank of America House
0 Xxxx Xxxxxx
Xxxxxx X00XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 0000
E-mail:
Contact: Xxxxxxx Xxxxxxx/Xxxxxxx Xxxxxxx
61
CHASE MANHATTAN PLC
By:
Address: 000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 0000/5305
E-mail:
Contact: International Loan Services Group
Trinity Tower 9th Floor
9 Xxxxxx Xxxxx Street
London E19YT
United Kingdom
SG INVESTMENT BANKING
By:
Address: Tour SG
00, Xxxxx Xxxxx
00000 Xxxxx La Defense Cedex
France
Fax: x00 0 00 00 00 00
E-mail:
Contact: Xxxxxxxx Xxxxxxx
UBS WARBURG LTD.
By:
Address: 0 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 0000
E-mail:
Contact: Xxx Xxxxx
Banking Products Services
62
THE AGENT
SOCIETE GENERALE
By:
Address: Tour SG
17, Cours Valmy
00000 Xxxxx Xx Defense Cedex
Fax: x00 0 00 00 00 00
E-mail:
Contact: Xxxxxxxx Xxxxxxx
THE BANKS
BANK OF AMERICA INTERNATIONAL (NETHERLANDS) B.V.
By:
Address: Xxxxxxxxxxx 000
0000 XX Xxxxxxxxx
X.X. Xxx 00000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax: x00 00 0000 000
E-mail:
Contact: Xxxxx Xxxx
THE XXXXX MANHATTAN BANK
By:
Address: 000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 0000/5305
E-mail:
Contact: International Loan Services Group
Xxxxxxx Xxxxx, 0xx Xxxxx
9 Xxxxxx Xxxxx Xxxxxx
Xxxxxx X0 0XX
Xxxxxx Xxxxxxx
63
SOCIETE GENERALE
By:
Address: Tour SG
17, Cours Valmy
00000 Xxxxx Xx Defense Cedex
Fax: x00 0 00 00 00 00
E-mail:
Contact: Xxxxxxxx Xxxxxxx
UBS AG
By:
Address: 0 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 0000
E-mail:
Contact: Xxx Xxxxx
Banking Products Services
ABN AMRO BANK N.V.
By:
Address: X.X. Xxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax: x00 00 000 0000
E-mail:
Contact: Xxxx Xxxxxxxxxx
00
XXXXX XXXXXXXXXXX XXXXXXXX XXXXXX S.A.
By:
Address: 0, xxx Xxxxxxxxx
00000 Xxxxx
Fax: x00 0 00 00 00 00
E-mail:
Contact: Didier Alleaume
BANCA DI ROMA S.P.A.
By:
Address: 00 xxxxxx Xxxxxxx X
00000 Xxxxx
Fax: x00 0 00 00 00 00
E-mail:
Contact: Xxxx Xxxx Xxxxxxxxxxx
BBVA IRELAND PLC
By:
Address: IFSC 0 Xxxxx Xxxx XXXX
Xxxxxx 0
Xxxxxxx
Fax: x000 000 00 00
E-mail:
Contact: Xxxxx Xxxx
THE BANK OF TOKYO-MITSUBISHI, LTD.
By:
Address: 0-0, xxx Xxxxxx Xxxx
00000 Xxxxx
Fax: x00 0 00 00 00 00
E-mail:
Contact: Laetitia de Belsunce
65
BNP PARIBAS
By:
Address: Agence Centrale
Xxx x'Xxxxx
00000 Xxxxx
Fax: x00 0 00 00 00 00
E-mail:
Contact: Xxxxxxxxxx Xxxxxxx/Xxxxxxxx Xxxxxxxx
BARCLAYS BANK PLC
By:
Address: Global Services Xxxx
0xx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 00 00
E-mail:
Contact: Xxx Xxxxxxx
CITIBANK INTERNATIONAL PLC, PARIS BRANCH
By:
Address: 00, Xx Xxxxxx
00000 Xxxxx La Defense
Fax: x00 0 00 00 00 00
E-mail:
Contact: Xxxxxxxx Xxxxxx
66
CREDIT AGRICOLE INDOSUEZ
By:
Address: 0 Xxxx xx Xxxxxxxxx Xxxx Xxxxxx
00000 Xxxxx La Defense
Fax: x00 0 00 00 00 00
E-mail:
Contact: Xxxxx Xxxxxxxxx Xxxxx
CREDIT COMMERCIAL DE FRANCE
By:
Address: 000 xxxxxx xxx Xxxxxx-Xxxxxxx
00000 Xxxxx
Fax: x00 0 00 00 00 00
E-mail: xxxxxxx@xxx.xx
Contact: Xxxxxx Xxxxxx
CREDIT SUISSE FIRST BOSTON
By:
Address: 00 xxxxxxxxx xx xx Xxxxxxxxx
00000 Xxxxx Cedex 01
Fax: x00 0 00 00 00 00
E-mail:
Contact: Xxxx-Xxxxxxxx Cressot
DEUTSCHE BANK LUXEMBOURG SA
By:
Address: 0, Xxxxxxxxx Xxxxxx Xxxxxxxx
X-0000 Xxxxxxxxxx
Fax: x000 00000 000
E-mail: xxxxxx.xxxxx@xx.xxx
Contact: Loan Department/French Desk
67
THE FUJI BANK LIMITED
By:
Address: 00 xxxxxx xxx Xxxxxx-Xxxxxxx
00000 Xxxxx
Fax: x00 0 00 00 00 00
E-mail: xxxxxxxx@xxxxxxxx.xx
Contact: Xx Xxxxxxx/Xx Xxxxxx
LANDESBANK BADEN WURTTEMBERG, LONDON BRANCH
By:
Address: Xxxxxxxxxxxx Xxxxx
00 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 00 00
E-mail: xxxxx.xxxxx@xxxxxx.xxx
Contact: Xxxxx Xxxxx
XXXXXX COMMERCIAL PAPER INC.
By:
Address: 0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 U.S.A.
Fax: x000 000 00 00
E-mail:
Contact: Xxxxxxx Xxxxxxx
68
NATIONAL AUSTRALIA BANK LIMITED (A.C.N. 004 044 937)
By:
Address: C&IFS Support Group
00 Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 00 00
E-mail: xxxxx.xxxxxxxx@xxx.xx.xx
Contact: Xxxxx Xxxxxxxx
RABOBANK INTERNATIONAL, LONDON BRANCH
By:
Address: Xxxxxx Xxxxx
Xxx Xxxxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 00 00
E-mail:
Contact: Xxxxx Xxxxxxx
THE ROYAL BANK OF SCOTLAND PLC
By:
Address: Corporate & Institutional Banking
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 00 00
E-mail:
Contact: Xxxx Xxxxxxx
69
SANPAOLO IMI S.P.A, LONDON BRANCH
By:
Address: Xxxx House
00 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 00 00
E-mail:
Contact: Xxxxxx Xxxxx
Syndication Officer
STANDARD CHARTERED BANK
By:
Address: 0 Xxxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 00 00
E-mail:
Contact: Xxxxxxxx Xxxxxxxx
THE SUMITOMO BANK, LIMITED
By:
Address: 00, xxx xx xx Xxxxx-x'Xxxxxx
00000 Xxxxx
Fax: x00 0 00 00 00 00
E-mail:
Contact: Francois de la Loge
70
THE SANWA BANK LIMITED
By:
Address: XX Xxx 00 Xxxx Xxxxx House
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 00 00
E-mail:
Contact: Xxxxxxx Xxxxx
WESTDEUTSCHE LANDESBANK, PARIS BRANCH
By:
Address: 0, xxx Xxxxxxxxx
00000 Xxxxx Cedex 08
Fax: x00 0 00 00 00 00
E-mail: x-xxxxxxx_xxxxxx@xxxxxx.xx
Contact: Xxxx-Xxxxxxx Finiel
WESTPAC BANKING CORPORATION
By:
Address: 00 Xx Xxxx Xxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 00 00
E-mail:
Contact: Xxxxxxx Xxxxxxxx
71
CDC FINANCE - CDC IXIS
By:
Address: 00, xxx xx Xxxxx
00000 Xxxxx
Fax: x00 0 00 00 00 00
E-mail:
Contact:
LLOYDS TSB BANK PLC
By:
Address: Xxxx Xxxxx
Xxxx Xxxxxx
Xxxxxxx XX0 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 00 00
E-mail:
Contact: Xxxxxx Xxxxxx
ARTESIA IRELAND
By:
Address: Xxxxxxxxxxxxx Xxxxx
0 Xxxxxxxxxxxxx Xxxxx XXXX
Xxxxxx 0
Xxxxxxx
Fax: x000 0 000 00 00
E-mail:
Contact: Xxxxxxx Xxxxxxx
72
BANCA NAZIONALE DEL LAVORO S.P.A., PARIS BRANCH
By:
Address: 00, xxxxxx xxx Xxxxxx-Xxxxxxx
00000 Xxxxx
Fax: x00 0 00 00 00 00
E-mail:
Contact: Xxxxx Xxxxxxxx
BANCO SANTANDER CENTRAL HISPANO S.A., PARIS BRANCH
By:
Address: 00, xxxxxx x'Xxxx
00000 Xxxxx
Fax: x00 0 00 00 00 00
E-mail:
Contact: Xxxxxx Xxxxxx/Xxxxxxxx Xxxxx
BANK ONE, N.A.
By:
Address: 0 Xxxxxx Xxxxxx
Xxxxxx XX0 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 00 00
E-mail:
Contact: Lionel Trigalou
COMMERZBANK AKTIENGESELLSCHAFT, SUCCURSALE DE PARIS
By:
Address: 0 Xxxxx xx x'Xxxxx
00000 Xxxxx
Fax: x00 0 00 00 00 00
E-mail:
Contact: Xxxxxxxx Xxxxxxx
00
XXXXXXXXXXXX XXXX XX XXXXXXXXX
By:
Address: Senator House
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 00 00
E-mail: xxxxxxxx@xxx.xxx.xx
Contact: Xxxx Xxxxxx
XXXXXX REGIONALE DE CREDIT AGRICOLE MUTUEL DE PARIS
ET D'ILE DE FRANCE
By:
Address: 00 Xxxx xx xx Xxxxx
00000 Xxxxx Cedex 12
Fax: x00 0 00 00 00 00
E-mail:
Contact: Pierre Portal
Secteur Investisseurs institutionnels
FORTIS INTERNATIONAL FINANCE (DUBLIN)
By:
Address: 5th floor, Xxxxx 0
Xxxxxx Xxxxx Xxxxx
XXXX Xxxxxx 0
Xxxxxxx
Fax: x000 0 000 00 00
E-mail:
Contact: Xxxx Xxxxx
74
XXXXXXX SACHS INTERNATIONAL BANK
By:
Address: Peterborough Court
000 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 000 000 00 00
E-mail:
Contact: Xxxxxx Xxxxxxx
LANDESBANK RHEINLAND-PFALZ GIROZENTRALE
By:
Address: Grosse Bleiche 54-56
Dept. 5-121
55098 Mainz
Germany
Fax: x00 0000 00 00 00
E-mail:
Contact: Xxxxxxxx Xxxxxx/Xxxxxx Xxxxxxxx
NORDDEUTSCHE LANDESBANK LUXEMBOURG SA
By:
Address: 00 Xxxxx x'Xxxxx
X-0000 Xxxxxxxxxx
Fax: x000 00 00 00 000
E-mail: xxx.xxxxxxxxx@xxxxxx.xx
Contact: Xxx Xxxxxxxxx
75
LANDESBANK SACHSEN GIROZENTRALE
By:
Address: Xxxxxxxxxxxx(xxxx)X 00
X 00000 Xxxxxxx
Xxxxxxx
Fax: x00 000 000 00 00
E-mail:
Contact: Xxxxxxx Xxxxxxxxxx
76
