Exhibit 4.3
INDENTURE
This INDENTURE (this "Indenture"), dated as of [ ], 2002,
is made by and between Publicis Groupe S.A., a societe anonyme organized under
the laws of France (the "Company") and The Bank of New York, a New York banking
corporation (the "Trustee"), as Trustee.
WHEREAS, the Trustee has agreed to act as trustee for the benefit of
the Bondholders under the Agreement to Issue Bonds with Share Subscription
Warrants of Publicis Groupe S.A. (the "Contract");
NOW, THEREFORE, each party agrees, for the benefit of the other
parties and for the benefit of the Bondholders, that the following additional
provisions are hereby incorporated into and made part of the Contract, to which
this Indenture is attached, and shall apply to the issuance of the Bonds
thereunder.
ARTICLE I
DEFINITIONS
"Combined Bond Contract" means the Contract (except for Section 5
thereof, which relates only to the Subscription Warrants) and this Indenture.
"Default" means an event or condition which is, or with the lapse of
time or giving of notice or both would be, an Event of Default.
"Event of Default" means any of the following:
(a) Should the Company fail to pay, on its due date, any amount due
as principal or Interest relative to the Bonds, if this default is not remedied
within a period of 30 business days as of its due date;
(b) Should the Company fail to meet any of its obligations relative
to the Bonds, if this default is not remedied within a period of 30 business
days from when the Company receives notice of the said default from the Trustee;
(c) (i) Should the Company or one of its Major Subsidiaries (as
defined below) fail to make a payment upon maturity (taking into account the
applicable grace periods, if any) of the principal amount due relative to an
Indebtedness (as defined below), (ii) in the event of the accelerated maturity
of any Indebtedness of the Company or one of its Major Subsidiaries pursuant to
the default of the Company or Major Subsidiary in question to meet its
obligations, if this Indebtedness is not reimbursed, or this accelerated
maturity is not cancelled within a period of 30 business days after the Company
has been notified of its existence by the Trustee, or (iii) should the Company
or one of its Major Subsidiaries fail to pay any amount due pursuant to a
guarantee or compensation relating to any Indebtedness, with the understanding
that the events defined in (i), (ii) and (iii) above only allow for accelerated
maturity of the Bonds, if the principal amount of the Indebtedness to which
these events relate is greater than 25 million euros. The Company
undertakes to inform the Trustee of the occurrence of any event indicated in the
present paragraph.
(d) Should the Company or one of its Major Subsidiaries request the
appointment of a conciliator, sign an amicable agreement with its main
creditors, be the subject of a voluntary liquidation procedure or a
court-ordered administration or liquidation procedure and/or filing or a total
cessation or any other equivalent measure or procedure.
(e) In the event of any other circumstance having, pursuant to the
law of any other competent jurisdiction, similar or equivalent effects to the
above-mentioned circumstances.
For the purposes of the preceding provisions, an Indebtedness means
any debt (including as part of leasing operations) resulting from the obligation
to repay borrowed money over a period of at least one year and having resulted
in the drafting of a contract or instrument of some kind, but excluding trade
debt or intra-group loans.
A Major Subsidiary refers to any subsidiary a) with net earnings or,
if applicable, consolidated net earnings (before taxes and exceptional earnings)
representing at least 5% of the consolidated net earnings of the Company and its
subsidiaries (before taxes and exceptional earnings) or b) gross assets or, if
applicable, consolidated gross assets (group share, i.e. disregarding minority
interests) representing 5% or more of the consolidated gross assets of the
Company and its subsidiaries (group share, i.e. disregarding minority
interests), calculated on the basis of the last audited accounts of the
subsidiary in question and the last audited consolidated accounts of the Company
and its subsidiaries.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Officer's Certificate" means a certificate executed on behalf of
the Company by any signatory authorized to act on behalf of the Company in
matters relating to and binding upon the Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"TIA" means the Trust Indenture Act of 1939, as amended, as in
effect on the date of the Contract, except as provided in Section 5.3.
"Trust Officer" means, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any vice
president, assis-
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tant vice president, assistant treasurer, trust officer or any other officer of
the Trustee who customarily performs functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person's knowledge of and
familiarity with the particular subject and who shall have direct responsibility
for the administration of this Indenture.
The parties agree that the Contract shall be attached hereto as
Exhibit A. The Trustee shall not be bound by any provision in the Contract
except as set forth in this Indenture.
All terms capitalized but not defined in this Indenture shall have
the meaning set forth in the Contract, except for TIA terms used in this
Indenture that are defined by the TIA, defined in the TIA by reference to
another statute or defined by any rule or regulation promulgated by the SEC,
which in each case have the meanings assigned to them by such definitions,
provided, however, that no amendment to any defined term contained in the
Contract shall be effective against the Trustee unless the Trustee receives
actual written notice of such amendment.
ARTICLE II
ADDITIONAL COVENANTS
Section 2.1. Paying Agent to Hold Money in Trust. The Company shall
require each Paying Agent (other than the Trustee) to agree in writing that such
Paying Agent shall hold in trust for the benefit of the Bondholders or the
Trustee all money held by such Paying Agent for the payment of principal or
Interest on the Bonds and shall notify the Trustee in writing of any Default by
the Company in making any such payment. The Company shall pay the Paying Agent
on or prior to the respective payment dates in the applicable currency any
amounts that the Paying Agent is required to pay to the Bondholders hereunder.
If the Company or an affiliate of the Company acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust
account. The Company at any time may require a Paying Agent (other than the
Trustee) to pay all money held by it to the Trustee and to account for any funds
disbursed by such Paying Agent. Upon complying with this Section 2.1, the Paying
Agent (if other than the Company) shall have no further liability for the money
delivered to the Trustee. Upon any proceeding under any bankruptcy law with
respect to the Company or any affiliate of the Company, if the Company or such
affiliate is then acting as Paying Agent, the Trustee shall replace the Company
or such affiliate as Paying Agent to the extent that it determines that it is
able to perform in that capacity.
Section 2.2. Bondholder Lists. The Trustee, on behalf of the
Company, shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Bondholders. At
the reasonable request of the Trustee, the Company shall furnish to the Trustee,
in writing at least seven business days before each Interest payment date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of Bondholders, to the extent such
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information is in the possession and control of the Company. Every Bondholder,
by receiving and holding his Bonds, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of any of them shall be held
accountable by reason of any disclosure of information as to names and addresses
of Bondholders made pursuant to the TIA.
Section 2.3. Officer's Certificate; Compliance Certificate. (a) On
the Settlement Date, the Company shall deliver to the Trustee and Paying Agent
an Officer's Certificate setting forth: (i) the aggregate principal amount of
the Bonds, (ii) the rate at which the Bonds will pay interest, (iii) the date or
dates on which the interest on the Bonds is payable, (iv) the date or dates on
which the Bonds mature, (v) the currency in which any payments of any principal
and interest under the Bonds shall be made and (vi) the registrar or institution
in similar function for the Bonds.
(b) The Company shall deliver to the Trustee within 120 days
after the end of each fiscal year of the Company a certificate stating that in
the course of the performance by the signers of their duties as officers of the
Company they would normally have knowledge of any Default or Event of Default or
any other violation of any condition or covenant under the Combined Bond
Contract and whether or not the signers know of any Default or Event of Default
or any other violation of any condition or covenant under the Combined Bond
Contract that occurred during such fiscal year. If they do, the certificate
shall describe the Default or Event of Default or other violation of any such
condition or covenant, its status and that action the Company is taking or
proposes to take with respect thereto.
Section 2.4. SEC Reports. The Company will file with the Trustee
within 15 days after it files them with the SEC copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the SEC may by rules and regulations prescribe) which
the Company is required to file with the SEC pursuant to Sections 13 or 15(d) of
the Exchange Act. The Company also shall comply with the other provisions of TIA
Section 314(a).
ARTICLE III
ADDITIONAL REMEDIES
Section 3.1. Acceleration upon Default. Upon occurrence of an Event
of Default, the Trustee, by simple written notice sent to the Company with a
copy sent to the Paying Agent, (a) shall, at the request of holders of at least
a majority in principal amount of the outstanding Bonds, or (b) only in the
event described in clause (d) of the definition of Event of Default, may (but
shall not be obligated to) without instruction of the holders, demand the early
redemption of all the Bonds at the Early Redemption Price (as defined in Section
3.3.2 of the Contract).
Section 3.2. Waiver of Past Defaults. The holders of not less than a
majority in principal amount of the Bonds may on behalf of all of the
Bondholders waive any past Default under the Combined Bond Contract with respect
to the Bonds and its
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consequences, except a Default in the payment of the principal of or interest on
any Bonds. Upon any such waiver, such Default shall cease to exist and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of the Combined Bond Contract; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 3.3. Control by Majority. The holders of a majority in
principal amount of the Bonds may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee with respect to the
Bonds. Subject to Sections 4.1 and 4.2, however, the Trustee may refuse to
follow any direction that (i) conflicts with law or the Combined Bond Contract,
(ii) exposes the Trustee to personal liability for which the Trustee would not
be indemnified pursuant to Section 4.7 hereof or (iii) is unduly prejudicial to
Bondholders not joined therein; provided, further, that the Trustee may take any
other action deemed proper by the Trustee that is not inconsistent with such
direction.
Section 3.4. Limitation on Suits. No Bondholder will have any right
to institute any proceeding with respect to the Combined Bond Contract or for
any remedy thereunder, unless:
(1) such Bondholder has previously given to the Trustee written
notice of a continuing Event of Default;
(2) holders of at least a majority in principal amount of the Bonds
shall have made a written request to the Trustee to pursue the remedy in
its own name as trustee hereunder;
(3) such Bondholders have provided to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee does not comply within 60 days after its receipt of
such notice, request and offer of indemnity; and
(5) during such 60-day period the holders of a majority in
principal amount of the Bonds have not given the Trustee a written
direction which is inconsistent with the request.
Otherwise, no Bondholder will have any right to institute any
proceeding with respect to the Combined Bond Contract or for any remedy
thereunder, except that a Bondholder may institute suit for enforcement of
payment of the principal of and premium, if any, or interest on a Bond held by
such Bondholder on or after the respective due dates expressed in the Combined
Bond Contract.
Section 3.5. Rights of Bondholders to Receive Payment.
Notwithstanding any other provision of the Combined Bond Contract (including,
without limitation, Section 3.4 of this Indenture), the right of any Bondholder
to receive payment
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of principal of or interest on the Bonds held by such Bondholder, on or after
the respective due dates expressed in the Combined Bond Contract, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Bondholder.
Section 3.6. Collection Suit by Trustee and Other Remedies. If an
Event of Default occurs and is continuing, the Trustee may:
(a) recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount then due and owing (together with
applicable interest on any overdue principal and, to the extent lawful, interest
on overdue interest) and the amounts provided for in Section 4.7; and
(b) pursue any other available remedy to collect the payment of
principal or interest on the Bonds or any damages in connection therewith or to
enforce the performance of any provision of the Combined Bond Contract.
Section 3.7. Trustee May File Proofs of Claim, etc.
(a) The Trustee may:
(i) file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee and
the Bondholders under the Combined Bond Contract and the Bonds allowed in
any bankruptcy, insolvency, liquidation or other judicial proceedings
relative to the Company or any subsidiary of the Company or their
respective creditors or properties; and
(ii) collect and receive any moneys or other property payable or
deliverable in respect of any such claims and distribute them in
accordance with the Combined Bond Contract.
Any receiver, trustee, liquidator, sequestrator (or other similar official) in
any such proceeding is hereby authorized by each Bondholder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Bondholders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, taxes, disbursements
and advances of the Trustee, its agent and counsel, and any other amounts due to
the Trustee pursuant to Section 4.7.
(b) Nothing in the Combined Bond Contract shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of
any Bondholder any plan of reorganization, arrangement, adjustment or
composition affecting the Bonds or the rights of any Bondholder thereof, or to
authorize the Trustee to vote in respect of the claim of any Bondholder in any
such proceeding.
Section 3.8. Priorities. If the Trustee collects any money or
property pursuant to this Article III, it shall pay out the money or property in
the following order:
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FIRST: to the Trustee for amounts due under Section 4.7;
SECOND: if the Bondholders proceed against the Company directly
without the Trustee in accordance with this Indenture, to the Bondholders
for their collection costs;
THIRD: to the Bondholders for amounts due and unpaid on the Bonds
for principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Bonds for principal
and interest, respectively; and
FOURTH: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may, upon notice to the Company, fix a record date and payment date
for any payment to Bondholders pursuant to this Section 3.8.
Section 3.9. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under the Combined Bond Contract or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 3.9 does not apply
to a suit by the Trustee, a suit by the Company, a suit by a Bondholder pursuant
to Section 3.5 or a suit by holders of more than 10% in principal amount of
outstanding Bonds.
Section 3.10. Merger; Demerger; Spin-Off. (a) In the event the
Company proposes to engage in a plan of merger, demerger or spin off
("scission") with the result that the Company ceases to exist as a legal entity,
or a transfer of a part of the Company's business to another entity or entities
by way of an "apport partiel d'actifs soumis au regime des scissions" (each, a
"Corporate Transaction"), the Company shall either (i) send a written notice to
the Trustee that the Company is offering to repurchase all or any portion of the
outstanding Bonds of each Bondholder if so requested by such Bondholder, or (ii)
request that the Trustee submit the Corporate Transaction to the Bondholders for
approval. Notwithstanding the foregoing, in the event that a Corporate
Transaction is submitted for approval to the Bondholders but is not approved in
accordance with the terms hereof, the Company may nevertheless proceed with the
contemplated transaction, as provided by article L. 228-73 of the French
Commercial Code.
For the avoidance of doubt, any reference in this Section 3.10 and
Section 3.11 to the "repurchase" of the Bonds shall mean a "remboursement
anticipe des obligations" under French law.
(b) In the event the Company wishes to offer to repurchase the Bonds
in accordance with Section 3.10(a)(i):
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(1) No later than 30 days prior to the Company's shareholders
meeting convened to approve the Corporate Transaction, the Company shall provide
the Trustee with written notice of the Company's offer to repurchase (the "CT
Repurchase Offer"), which shall set forth (x) the contemplated Corporate
Transaction, and (y) that each Bond shall be repurchased, subject to
consummation of the Corporate Transaction, at the Early Redemption Price (as
such term is defined in article 3.3.2 of the Contract) upon any Bondholder's
request;
(2) The Trustee shall within five days of receipt send a copy of
such CT Repurchase Offer to each Bondholder;
(3) Each Bondholder wishing to have all or any portion of his or her
Bonds repurchased pursuant to the CT Repurchase Offer shall make a written
request to the Trustee no later than three months following the date of the CT
Repurchase Offer (the "CT Individual Repurchase Request"), which request shall
become irrevocable upon receipt by the Trustee;
(4) No later than five days following the earlier of (x) the end of
this three-month period and (y) the date on which the Trustee shall have
received CT Individual Repurchase Requests from all the Bondholders, the Trustee
shall make a written repurchase request to the Company (the "CT Final Repurchase
Request"), which CT Final Repurchase Request shall set forth (i) the list of
Bondholders wishing to have their Bonds repurchased, (ii) the amount of Bonds
that each Bondholder wishes to have repurchased, and (iii) the aggregate amount
of Bonds to be repurchased by the Company;
(5) Within 30 days following receipt of such CT Final Repurchase
Request, but in no event earlier than the date of the consummation of the
Corporate Transaction, the Company shall transfer the aggregate purchase price
to the Paying Agent for distribution to the applicable Bondholders and
repurchase the Bonds set forth in the CT Final Repurchase Request at the Early
Redemption Price.
For the avoidance of doubt:
(1) The obligation of the Company to consummate the repurchase of
the Bonds shall be conditioned upon the consummation of the Corporate
Transaction and the transfer of the aggregate purchase price to the Paying Agent
pursuant to Section 3.10(b)(5) above may be made after the Corporate Transaction
is consummated;
(2) In the case of a partial business transfer ("apport partiel
d'actifs soumis au regime des scissions"), or a demerger or spin off
("scission"), the Bondholders who shall send the CT Individual Repurchase
Request to the Trustee in accordance with this Section 3.10 shall be paid by the
Company and/or by the resulting or transferee entities acting jointly and
severally for this purpose.
(3) The parties agree that, in the event of a transfer of a part of
the Company's business to another entity by way of an apport partiel d'actifs
soumis au regime des scissions, the provisions of paragraph (a) above shall not
be considered, interpreted or understood as providing anything different than
what is provided by applicable
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French law, including inter alia articles L. 228-73, and L. 236-16 through L.
236-22 of the French Commercial Code.
(c) In the event the Company requests that the Trustee submit the
Corporate Transaction to the Bondholders for approval in accordance with Section
3.10(a)(ii):
(1) The Company shall provide the Trustee with (i) a written notice
of such proposed Corporate Transaction, and (ii) a certified English translation
of the same information that is required to be published in the Bulletin of
Obligatory Legal Announcements ("avis de fusion ou de scission" referred to by
article L.236-6 of the Code de commerce and D.155 of the decree number 67-236 of
23 March 1967)(substantially in the form this information has been or will be
published in the Bulletin of Obligatory Legal Announcement) (the "CT
Information"), within two business days after the Company has published the
description of the proposed Corporate Transaction in the Bulletin of Obligatory
Legal Announcement, as required by French law;
(2) The Trustee shall within five days of receipt send to each
Bondholder the CT Information together with a proxy allowing each of the
Bondholders to instruct the Trustee (i) to approve or oppose the Corporate
Transaction and/or (ii) to file claim before the Paris Tribunal de Commerce in
accordance with Section 3.10(c)(6) hereof (abstention or failure to respond or
to make a choice relating to a proposal shall be considered as an instruction to
approve the Corporate Transaction and/or not to file a claim);
(3) Each Bondholder wishing to instruct the Trustee to vote on the
Corporate Transaction and/or to file a claim as described in Section 3.10(c)(2)
shall send the proxy to the Trustee no later than 20 days following the date on
which the CT Information and related proxy is sent to the Bondholders. The
action of the holders of at least a majority in principal amount of the
outstanding Bonds is required to oppose or approve the Corporate Transaction;
(4) Promptly upon expiration of such 20-day period, the Trustee
shall promptly notify the Company in writing of the Bondholders' decision, which
notice shall state the amount and percentage of principal amount of the Bonds
the holders of which opposed the Corporate Transaction and/or requested that a
claim be filed;
(5) If the Management Board of the Company decides to proceed with
the contemplated Corporate Transaction despite the Bondholders' opposing
decision, the Management Board of the Company shall promptly notify the Trustee
of such decision. The Trustee shall (i) promptly upon receipt send a copy of
such decision to each of the Bondholders; and (ii), within 30 days following
such receipt, if previously so instructed by holders of a majority in principal
amount of the outstanding Bonds pursuant to Section 3.10(c)(2), cause the filing
of a claim before the Paris Tribunal de Commerce requesting the court to order
the repurchase of the outstanding Bonds or the posting of security for the
repurchase of such Bonds pursuant to the terms and conditions of articles L.
228-73 Section 3 and L. 236-14 of the Code de Commerce.
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Section 3.11. Change of the Corporate Form or Corporate Purpose;
Issuance of Secured Obligations.
(a) In the event of (i) any proposed issuance of bonds
("obligations" within the meaning of French law) secured by the Company's assets
(to the extent such issuance is permitted pursuant to Section 2.7.2 of the
Contract); (ii) any proposed change of the Company's corporate form (from its
current form as a French "societe anonyme" to any other corporate form); or
(iii) any proposed change of the Company's corporate purpose (resulting in an
amendment of article 2 of the Company's by-laws) (each, a "Material Operation"),
the Company shall either (x) send a written notice to the Trustee that the
Company is offering to repurchase all or any portion of the outstanding Bonds of
each Bondholder if so requested by such Bondholder, or (y) request that the
Trustee submit the Material Operation to the Bondholders for approval.
(b) In the event that the Company wishes to offer to repurchase the
Bonds in accordance with Section 3.11(a)(x):
(1) No later than 30 days before the Company's shareholders meeting
convened to approve the Material Operation or, if no shareholders meeting is
required to approve such Material Operation, no later than the date of
consummation of the Material Operation, the Company shall provide the Trustee
with written notice of the Company's offer to repurchase (the "MO Repurchase
Offer"), which shall set forth (i) the contemplated Material Operation, and (ii)
that each Bond shall be repurchased, subject to the consummation of the Material
Operation, at the Early Redemption Price upon any Bondholder's request;
(2) The Trustee shall within five days of receipt send a copy of
such MO Repurchase Offer to each Bondholder;
(3) Each Bondholder wishing to have all or any portion of his or her
Bonds repurchased pursuant to the MO Repurchase Offer shall make a written
request to the Trustee no later than three months following the date of the MO
Repurchase Offer (the "MO Individual Repurchase Request") which request shall
become irrevocable upon receipt by the Trustee;
(4) No later than five days following the earlier of (x) the end of
this three month period, or (y) the date on which the Trustee shall have
received MO Individual Purchase Requests from all the Bondholders, the Trustee
shall make a written repurchase request to the Company (the "MO Final Repurchase
Request"), which MO Final Repurchase Request shall set forth (i) the list of
Bondholders wishing to have their Bonds repurchased, (ii) the amount of Bonds
that each Bondholder wishes to have repurchased and (iii) the aggregate amount
of Bonds to be repurchased by the Company;
(5) Within 30 days following receipt of such MO Final Repurchase
Request, but in no event earlier than the date of the consummation of the
Material Operation, the Company shall transfer the aggregate purchase price to
the Paying Agent for
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distribution to the applicable Bondholders and repurchase the Bonds set forth in
the MO Final Repurchase Request at the Early Redemption Price.
For the avoidance of doubt, the Company's obligation to consummate
the repurchase of the Bonds shall be conditioned upon the consummation of the
Material Operation and the transfer of the aggregate purchase to the Paying
Agent pursuant to Section 3.11 (b)(5) above may be consummated after the
Material Operation becomes effective.
(c) In the event that the Company requests that the Trustee submit
any Material Operation to the Bondholders for approval in accordance with
Section 3.11 (a)(y):
(1) In the event of a change of the corporate purpose or the
corporate form, the Company shall provide the Trustee with (i) a written notice
of such Material Operation, and (ii) a certified English translation of the
proposed resolutions of the Company's shareholders meeting convened or to be
convened to approve the proposed Material Operation and the notice relating
thereto (substantially in the form these documents have been or will be
published in the Bulletin of Obligatory Legal Announcements), no later than two
business days after the Company has published the notice of the meeting ("avis
de reunion") in the Bulletin of Obligatory Legal Announcements, as required by
French law;
(2) In the event of the issuance of "obligations" secured by the
Company's assets, the Company shall, 30 days prior to such issuance, provide the
Trustee with (i) the legal disclosures filed by the Company with the competent
regulatory authorities in France, and (ii) if applicable, a certified English
translation of the avis de reunion and proposed resolutions of the Company's
shareholders meeting convened or to be convened to approve the proposed issuance
(substantially in the form these documents have been or will be published in the
Bulletin of Obligatory Legal Announcements) (the documents referred to in this
paragraph 2 and paragraph 1 above shall be collectively referred to as the "MO
Information");
(3) The Trustee shall within five days of receipt send to each
Bondholder the MO Information together with a proxy allowing each of the
Bondholders to instruct the Trustee (i) to approve or oppose the Material
Operation and/or (ii) to require the repurchase of all or a portion of his or
her Bonds in the circumstances described under Section 3.11(c)(6) (abstention or
failure to respond or to make a choice relating to a proposal shall be
considered as an instruction to approve the Material Operation and/or to waive
the right to have his or her Bonds repurchased);
(4) Each Bondholder wishing to instruct the Trustee to vote on the
Material Operation and/or, as applicable, to have all or a portion of his or her
Bonds repurchased in accordance with Section 3.11(c)(3) shall send the proxy to
the Trustee no later than 20 days following the date on which the MO Information
and related proxy is sent to the Bondholders. The action of the holders of at
least a majority in principal amount of the outstanding Bonds is required to
oppose or approve the Material Operation;
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(5) Promptly after expiration of such 20-day period, the Trustee
shall promptly notify the Company in writing of the Bondholders' decision, which
notice shall state the amount and percentage of principal amount of the Bonds
the holders of which opposed the Material Operation and/or requested the
repurchase of their Bonds, if applicable;
(6) If the Management Board of the Company decides to proceed with
the contemplated Material Operation despite the Bondholders' opposing decision,
the Management Board of the Company shall promptly notify the Trustee of such
decision. The Trustee shall (i) promptly upon receipt send a copy of such
decision to each of the Bondholders; and (ii) send to the Company a written
repurchase request which repurchase request, shall set forth (i) the list of
Bondholders wishing to have their Bonds repurchased, (ii) the amount of Bonds
that each Bondholder wishes to have repurchased and (iii) the aggregate amount
of Bonds to be repurchased by the Company;
(7) Within 30 days following receipt of such repurchase request, the
Company shall transfer the aggregate purchase price to the Paying Agent for
distribution to the applicable Bondholders and repurchase the Bonds set forth in
such repurchase request at the Early Redemption Price.
ARTICLE IV
TRUSTEE
Section 4.1. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth herein and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, in the case of any such certificates or opinions which by any
provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such certificates and opinions to
determine whether or not they reasonably conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
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(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 4.1;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 3.2 or 3.3.
(d) The Trustee shall not be liable for interest on any money
received by it.
(e) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(g) Whether or not expressly provided herein, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Article IV and to the provisions of the TIA.
(h) Unless otherwise specifically provided in the Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an authorized signatory of the Company.
(i) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Bondholders unless such Bondholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses (including
reasonable attorneys' fees and expenses) and liabilities that might be incurred
by it in compliance with such request or direction.
Section 4.2. Rights of Trustee. Subject to Section 4.1:
(a) The Trustee may conclusively rely and shall be protected in
acting or refraining from acting on any paper or document reasonably
believed by it to
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be genuine and to have been signed or presented by the proper party or
parties. The Trustee need not investigate any fact or matter stated in the
document.
(b) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, it may require a
certificate of an authorized officer of the Company or an Opinion of
Counsel. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on a certificate of an authorized
officer of the Company or an Opinion of Counsel.
(c) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through its
attorneys and agents or other experts and shall not be responsible for the
misconduct or negligence on the part of any agent or attorney or other
expert appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute willful misconduct or negligence (as finally determined by a
court of competent jurisdiction).
(e) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole
cost of the Company and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation.
(g) The Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture.
(h) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Trust Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the principal corporate trust
office of the Trustee, and such notice references the Bonds and this
Indenture.
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(i) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and each agent, custodian and other
person employed to act hereunder.
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Section 4.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Bonds and
may otherwise deal with the Company or any of its affiliates with the same
rights it would have if it were not Trustee. Any Paying Agent may do the same
with like rights. However, the Trustee must comply with Sections 4.10 and 4.11.
Section 4.4. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
the Combined Bond Contract or the Bonds, it shall not be accountable for the
Company's use of the proceeds from the Bonds, and it shall not be responsible
for any statement of the Company in the Combined Bond Contract or in any
document issued in connection with the sale of the Bonds or in the Bonds.
Section 4.5. Notice of Defaults. If a Default or Event of Default
occurs and is continuing and if a Trust Officer has knowledge thereof, the
Trustee shall mail to each Bondholder notice of the Default or Event of Default
in the manner specified in Section 4.6(c) within 60 days after it occurs or as
soon as reasonably practicable thereafter. Except in the case of a Default or
Event of Default in payment of principal of or interest on any Bond, the Trustee
may withhold the notice if and so long as a committee of its Trust Officers in
good faith determines that withholding the notice is in the interests of the
Bondholders.
Section 4.6. Reports by Trustee to Bondholders.
(a) Within 60 days of each June 30 beginning with the June 30
following the date on which the Bonds are issued under the Contract, the Trustee
shall transmit to the Bondholders, in the manner specified in Section 4.6(c)
below, a brief report dated as of such June 30 summarizing any of the events set
forth in TIA Section 313(a) which may have occurred within the preceding twelve
months. If no such event has occurred within the preceding twelve-month period
then no report need be transmitted. The Trustee shall also transmit to the
Bondholders any report required by TIA Section 313(b)(2), at the times and in
the manner provided for therein.
(b) A copy of each report at the time of its mailing to the
Bondholders shall be filed with the SEC and with each stock exchange on which
the Bonds are listed. The Company agrees to notify promptly the Trustee whenever
the Bonds become listed on any stock exchange and of any delisting thereof.
(c) Any reports transmitted to Bondholders by the Trustee shall be
transmitted by mail to the Bondholders in the manner provided for by
TIA Section 313(c).
Section 4.7. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance and administration of this Indenture
and services hereunder as the Company and the Trustee shall from time to time
agree in writing. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses, disbursements
and advances incurred or made by it. Such expenses shall include the
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reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts.
(b) The Company shall indemnify the Trustee and each of its agents,
employees and directors against any and all loss, liability or expense
(including reasonable attorneys' fees and expenses) incurred by them without
negligence, willful misconduct or bad faith on their part arising out of or in
connection with the acceptance and administration of this trust and the
performance of their duties hereunder, including the costs and expenses of
enforcing this Indenture (including this Section 4.7) and of defending
themselves against any claims or liabilities (whether asserted by any
Bondholder, the Company or otherwise). The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Trustee may, upon written
request to the Company, have separate counsel and the Company shall upon such
event pay the fees and expenses of such counsel. The Company need not reimburse
any expense or indemnify against any loss, liability or expense incurred by the
Trustee through the Trustee's own negligence, willful misconduct or bad faith.
(c) To secure the Company's payment obligations in this Section 4.7,
the Trustee shall have a lien prior to the Bonds on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Bonds.
(d) The Company's payment obligations pursuant to this Section 4.7
shall survive the discharge of the Combined Bond Contract and the resignation or
removal of the Trustee. When the Trustee incurs expenses after the occurrence of
a Default upon an event of bankruptcy, the expenses are intended to constitute
expenses of administration under any bankruptcy law.
Section 4.8. Replacement of Trustee.
(a) The Trustee may resign at any time by notifying the Company. The
holders of a majority in principal amount of the outstanding Bonds may remove
the Trustee at any time by so notifying the Trustee in writing and may appoint a
successor Trustee reasonably acceptable to the Company. The Company shall remove
the Trustee if:
(1) the Trustee fails to comply with Section 4.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns or is removed by the Company or by the
holders of a majority in principal amount of the outstanding Bonds (and such
Bondholders do not reasonably promptly appoint a successor Trustee), or if a
vacancy exists in the office of the Trustee for any
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reason (the Trustee in such event being referred to herein as the retiring
Trustee), the Company shall promptly appoint a successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Bondholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 4.7.
(d) If a successor Trustee does not deliver a written acceptance of
its appointment within 30 days after the retiring Trustee resigns or is removed,
the retiring Trustee or the holders of 10% in principal amount of the
outstanding Bonds may petition, at the Company's expense, any court of competent
jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 4.10, any Bondholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Section 4.9. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or national
banking association, the successor corporation or national banking association
without any further act shall be the successor Trustee.
Section 4.10. Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of TIA Section 310(a). The Trustee shall have
a combined capital and surplus of at least $50 million as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
Section 4.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
Section 4.12. Other Provisions Concerning the Trustee (a) It is the
purpose of this Indenture that there shall be no violation of any law of any
jurisdiction denying or restricting the right of banking corporations or
associations to transact business as trustee in such jurisdiction. It is
recognized that in case of litigation under this Indenture, and in particular in
case of the enforcement thereof on default, or in the case the Trustee deems
that by reason of any present or future law of any jurisdiction it may not
exercise any of the powers, rights or remedies herein granted to the Trustee or
hold title to the properties, in trust, as herein granted or take any action
which may be desirable or necessary in connection therewith, it may be necessary
that the Trustee
- 18 -
appoint an individual or institution as a separate or co-trustee. The following
provisions of this Section are adopted to these ends.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture.
Each separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as may
be provided therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating to the conduct
of, affecting the liability of, or affording protection or rights (including the
rights to compensation, reimbursement and indemnification hereunder) to, the
Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may at any time constitute
the Trustee its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Indenture on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 4.13. Damages Anything in this Indenture to the contrary
notwithstanding, in no event shall the Trustee be liable under or in connection
with this Indenture for indirect, special, incidental, punitive or consequential
losses or damages of any kind whatsoever, including but not limited to lost
profits, whether or not foreseeable, even if the Trustee has been advised of the
possibility thereof and regardless of the form of action in which such damages
are sought.
Section 4.14. Paying Agent. All rights, duties and immunities of the
Trustee under this Indenture shall apply to any Paying Agent.
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ARTICLE V
AMENDMENTS
Section 5.1. Without Consent of Bondholders.
(a) The Company and the Trustee may amend the Combined Bond Contract
or the Bonds without notice to or consent of any Bondholder:
(1) to cure any ambiguity, omission, defect or inconsistency,
provided that such action shall not adversely affect the interests of the
Bondholders in any material respect;
(2) to add guarantees with respect to the Bonds or to secure the
Bonds;
(3) to add to the covenants of the Company for the benefit of the
Bondholders or to surrender any right or power herein conferred upon the
Company;
(4) to add any additional Events of Default for the benefit of the
Bondholders; or
(5) to make any change that does not adversely affect the rights of
any Bondholder in any material respect.
(b) After an amendment under this Section 5.1 becomes effective, the
Company shall mail to Bondholders a notice briefly describing such amendment.
The failure to give such notice to all Bondholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section 5.1.
Section 5.2. With Consent of Bondholders.
(a) The Company and the Trustee may amend the Combined Bond Contract
or the Bonds without notice to any Bondholder but with the written consent of
the holders of at least a majority in principal amount of the outstanding Bonds
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Bonds), which consent(s) shall be
delivered to the Company and the Trustee. However, without the consent of each
Bondholder affected, an amendment may not:
(1) reduce the principal amount of Bonds the holders of which must
consent to an amendment or waiver of the Combined Bond Contract or the
Bonds, or modify any other aspect of the provisions dealing with
modification and waiver of the Combined Bond Contract;
(2) reduce the rate of, or change, or have the effect of changing
the time for payment of the interest on any Bonds;
(3) reduce the principal of, or change, or have the effect of
changing the fixed maturity of any Bonds or the amount due upon an Event
of Default, or change the date on
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which any Bonds may be subject to acceleration or redemption, or reduce
the redemption price therefor;
(4) make any Bonds payable in currency or at a location other than
that stated in the Contract with respect to the Bonds or at a place other
than stated in the Contract with respect to the Bonds; or
(5) make any change in the provisions of the Combined Bond Contract
entitling each Bondholder to receive payment of principal of and interest
on such Bonds on or after the due date thereof or to bring suit to enforce
such payment, or permitting holders of a majority in principal amount of
outstanding Bonds to waive compliance with various provisions of the
Combined Bond Contract or Defaults or Events of Default.
(b) It shall not be necessary for the consent of the Bondholders
under this Section 5.2 to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent approves the substance thereof.
(c) After an amendment under this Section 5.2 becomes effective, the
Company shall mail to Bondholders a notice briefly describing such amendment.
The failure to give such notice to all Bondholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section 5.2.
Section 5.3. Compliance with Trust Indenture Act. Every amendment or
supplement to the Combined Bond Contract or the Bonds shall comply with the TIA
as then in effect.
Section 5.4. Acts of Bondholders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by the Combined Bond Contract to be given or
taken by Bondholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Bondholders in person or by an
agent duly appointed in writing as herein otherwise expressly provided. Such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Bondholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of the Combined Bond Contract and (subject to Section 4.1 of this
Indenture) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) The Company may set any day as a record date for the purpose of
determining the Bondholders entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Bondholders, (for the
purposes of this Section 5.4 only, a "record date"),
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provided that the Company may not set a record date for, and the provisions of
this paragraph shall not apply with respect to, the giving or making of any
notice, declaration, request or direction referred to in the next paragraph. If
any record date is set pursuant to this paragraph, the Bondholders shall be
entitled to take the relevant action, whether or not such Bondholders remain
Bondholders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable expiration date
by Bondholders of the requisite principal amount of outstanding Bonds on such
record date. Nothing in this paragraph shall be construed to prevent the Company
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any person be cancelled
and be of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by holders of the requisite principal amount of
outstanding Bonds on the date such action is taken. Promptly after any record
date is set pursuant to this paragraph, the Company, at its own expense, shall
cause notice of such record date, the proposed action by Bondholders and the
applicable expiration date to be given to the Trustee in writing and to each
Bondholder in the manner provided for by TIA Section 313(c).
The Trustee may set any day as a record date for the purpose of
determining the Bondholders entitled to join in the giving or making of (i) any
request to institute proceedings referred to in Section 3.4(2) or (ii) any
direction referred to in Section 3.3. If any record date is set pursuant to this
paragraph, the Bondholders shall be entitled to join in such notice,
declaration, request or direction, whether or not such Bondholders remain
Bondholders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable expiration date
by Bondholders of the requisite principal amount of outstanding Bonds on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any person be cancelled
and be of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Bondholders of the requisite principal amount of
outstanding Bonds on the date such action is taken. Promptly after any record
date is set pursuant to this paragraph, the Trustee, at the expense of the
Company, shall cause notice of such record date, the proposed action by
Bondholders and the applicable expiration date to be given to the Company in
writing and to each Bondholder in the manner provided for by TIA Section 313(c).
With respect to any record date set pursuant to this Section, the
party hereto which sets such record date may designate any day as the
"expiration date" and from time to time may change the expiration date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new expiration date is given to the other parties hereto
in writing and to each Bondholder in the manner provided for by TIA Section
313(c), on or prior to the existing expiration date. Notwithstanding the
foregoing, no expiration date shall be later than the 180th day after the
applicable record date and, if an expiration date is not designated with respect
to any record date set pursuant to this Section, the party or parties hereto
which set such record date shall be deemed to have designated the 180th day
after such record date as the expiration date with respect thereto.
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Without limiting the foregoing, a Bondholder entitled hereunder to
take any action hereunder with respect to any particular Bond may do so with
regard to all or any part of the principal amount of such Bond or by one or more
duly appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 5.5. Trustee to Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article V; provided that the Trustee may,
but shall not be obligated to, sign any amendment that adversely affects its own
rights, duties, liabilities or immunities. If it does, the Trustee may but need
not sign it. In signing such amendment the Trustee shall be entitled to receive
indemnity reasonably satisfactory to it and to receive, and (subject to Sections
4.1 and 4.2) shall be fully authorized and protected in relying upon an Opinion
of Counsel and a certificate of an officer of the Company, each stating that
such amendment is authorized or permitted by this Indenture.
ARTICLE VI
MISCELLANEOUS
Section 6.1. Trust Indenture Act Controls. If any provision of the
Combined Bond Contract limits, qualifies or conflicts with another provision
which is required or deemed to be included in the Combined Bond Contract by the
TIA, the required or deemed provision shall control.
Section 6.2. Communication by Bondholders with Other Bondholders.
Bondholders may communicate pursuant to the procedures set forth in TIA Section
312(b) with other Bondholders with respect to their rights under the Combined
Bond Contract or the Bonds. The Company, the Trustee and anyone else shall have
the protection of TIA Section 312(c).
Section 6.3. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under the Combined Bond Contract, the Company shall
furnish to the Trustee:
(1) a certificate signed by an officer or officers of the Company,
in form and substance reasonably satisfactory to the Trustee stating that,
in the opinion of the signer(s), all conditions precedent, if any,
provided in the Combined Bond Contract relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent, if any, have been complied with.
Section 6.4. Statements Required in Certificate or Opinion. Each
certificate of an officer of the Company or Opinion of Counsel with respect to
compliance with a covenant or condition provided for in the Combined Bond
Contract shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition and the definitions relating
thereto;
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(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual matters on a
certificate of an officer of the Company or on certificates of public officials
unless such counsel knows, or in the exercise of reasonable care, should know
that the certificate or the representations with respect to such matters are
erroneous.
Section 6.5. Bondholder Actions. In determining whether the holders
of the requisite principal amount of the Bonds have given any request, demand,
authorization, direction, notice, consent or waiver under the Combined Bond
Contract, Bonds owned by the Company or any other obligor upon the Bonds or any
affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Bonds which a Trust Officer of the
Trustee actually knows to be so owned shall be so disregarded. Bonds so owned
which have been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Bonds and that the pledgee is not the Company or any
other obligor upon the Bonds or an affiliate of the Company or of such other
obligor.
Section 6.6. Duplicate and Counterpart Originals. This Indenture may
be executed in any number of counterparts, each of which so executed shall be an
original, but all of them together represent the same agreement.
Section 6.7. Severability. In case any provision in this Indenture
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 6.8. Benefits of the Combined Bond Contract. Nothing in the
Combined Bond Contract, express or implied, shall give to any person, other than
the parties hereto and their successors hereunder and the Bondholders, any
benefit of any legal or equitable right, remedy or claim under the Combined Bond
Contract.
Section 6.9. Governing Law. Subject to the next sentence, this
Indenture shall be governed by, and construed in accordance with, the laws of
the state of New York, without giving effect to any contrary conflict of laws or
choice of law provisions of the laws of the state of New York or any other
jurisdiction. Notwithstanding the foregoing, the defined term "Event of Default"
in Article I and Sections 3.1, 3.10, 3.11 hereof and the Contract (excluding
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the provisions incorporated from this Indenture) shall be governed by the laws
of the Republic of France.
Section 6.10. Headings. The headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
Section 6.11. Waiver of Jury Trial; Submission to Jurisdiction.
(a) EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
(b) All actions and proceedings against the Trustee arising out of
or relating to this Indenture or brought by the Trustee against the Company
related to the Trustee's rights and privileges set forth in this Indenture
(other than in Sections 3.1, 3.10 and 3.11 hereof) shall be heard and determined
in the courts of the State of New York or the United States District Court for
the State of New York, and for any such actions or proceedings, each of the
Trustee and the Company submit to jurisdiction in such courts. The Company, with
regard to any actions and proceedings against the Trustee hereunder agrees that
it will not bring any action in relation to this Indenture in any court other
than the courts of the State of New York and the United States District Court
for the State of New York.
(c) Process in any suit, action or proceeding may be served on any
party hereto anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 6.13 shall be deemed
effective service of process on such party. The Company shall appoint National
Registered Agents, Inc., at 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000 as
its authorized agent to receive and accept on its behalf service by mail of any
legal process, summons, notices and documents that may be served against the
Company in any federal and state court as described in this Section 6.11.
Section 6.12. Payments Due on Non-Business Days. In any case where
the date on which a payment is due under the Combined Bond Contract shall not be
a business day at any place of payment, then (notwithstanding any other
provision of this Indenture) a payment of interest or principal need not be made
at such place of payment on such date, but may be made on the next succeeding
business day at such place of payment with the same force and effect as if made
on such date, provided that no interest will accrue for the period from and
after such date.
Section 6.13. Service of Required Notice to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver, act of
bondholders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with (a) the Trustee by any Bondholder or
by the Company will be sufficient for every purpose hereunder if in writing and
mailed, registered mail, return-receipt requested, to the Trustee at its
corporate trust office, Attention: Corporate Trust Administration, Telephone
number:
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___________, Facsimile number: ____________ or (b) the Company by the Trustee or
by any Bondholder will be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed, registered mail,
return-receipt requested, to the Company addressed to it at _____________,
Attention: __________, Telephone number: ___________, Facsimile number:
____________ or at any other address previously furnished in writing to the
Trustee by the Company.
Section 6.14. Service of Required Notice to Holders; Waiver. Where
this Indenture provides for notice to holders of any event, such notice will be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Bondholder affected by such
event, at his address as it appears in [________________] not later than the
latest date (if any, and not earlier than the earliest date (if any), prescribed
for the giving of such notice. In any case where notice to Bondholders is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular holder will affect the sufficiency of such notice
with respect to other holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the person entitled to receive
such notice, either before or after the event, and such waiver will be the
equivalent of such notice. Waivers of notice by Bondholders will be filed with
the Trustee, but such filing will not be a condition precedent to the validity
of any action taken in reliance upon such waiver. In case by reason of the
suspension of regular mail service or by reason of any other cause it will be
impracticable to give such notice by mail, then such notification as may be made
with the approval of the Trustee will constitute a sufficient notification for
every purpose hereunder.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date first written above.
PUBLICIS GROUPE S.A.
By: ________________________________
Name:
Title:
THE BANK OF NEW YORK
as Trustee
By: ________________________________
Name:
Title:
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EXHIBIT A
OBSA ISSUANCE CONTRACT
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