AXA
AXA FINANCIAL, INC.
AXA FINANCIAL (BERMUDA) LTD
as Borrowers
AXA
as Guarantor
BNP PARIBAS
CALYON
DEUTSCHE BANK AG LONDON BRANCH
HSBC FRANCE
and
SOCIETE GENERALE CORPORATE & INVESTMENT BANKING
as Mandated Lead Arrangers
HSBC FRANCE
as Agent
HSBC BANK USA, NATIONAL ASSOCIATION
as Swingline Agent
and
THE LENDERS
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CREDIT AGREEMENT
(EURO)1,400,000,000 (or its equivalent in Optional Currencies)
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This Agreement dated 15 December 2009 (as amended and restated on 25 February
2010) (the "Agreement") is made between:
(1) AXA, a French societe anonyme, whose head office is at ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇) ("AXA", the "Guarantor" or the "Company");
(2) AXA FINANCIAL, INC., a Delaware corporation, whose head office is at ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("AXA Financial");
(3) AXA FINANCIAL (BERMUDA) LTD., a company incorporated in Bermuda, whose
registered office is at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
("▇▇▇ ▇▇▇▇▇▇▇", and together with AXA and AXA Financial, the "Original
Borrowers");
(4) BNP PARIBAS, CALYON, DEUTSCHE BANK AG LONDON BRANCH, HSBC FRANCE and
SOCIETE GENERALE CORPORATE & INVESTMENT BANKING as mandated lead arrangers
(each an "Arranger" and collectively the "Arrangers");
(5) THE FINANCIAL INSTITUTIONS listed as Lenders in Part A of Schedule 1 (the
"Original Facility A Lenders"), Part B of Schedule 1 (the "Original
Swingline Lenders"), and Part C of Schedule 1 (the "Original L/C Lenders")
as lenders (together, the "Original Lenders");
(6) HSBC FRANCE as agent for the Finance Parties (the "Agent"); and
(7) HSBC BANK USA, NATIONAL ASSOCIATION as agent for the Swingline Facility
(the "Swingline Agent").
It is agreed as follows:
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SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Acceptable Bank" means a bank or financial institution which has a rating
for its long-term unsecured and non credit-enhanced debt obligations of:
(a) if it is rated by Standard & Poor's Rating Services, A- or higher; and
(b) if it is rated by Fitch Ratings Ltd, A- or higher; and
(c) if it is rated by ▇▇▇▇▇'▇ Investor Services Limited, A3 or higher; or
(d) a comparable rating from an internationally recognised credit rating
agency.
"Accession Letter" means a document substantially in the form set out in
Schedule 6 (Form of Accession Letter).
"Additional Borrower" means a company which becomes an Additional Borrower
in accordance with Clause 36 (Changes to the Obligors).
"Additional Cost Rate" has the meaning given to it in Schedule 4 (Mandatory
Cost Formulae).
"Affiliate" means, in relation to a Lender, its subsidiary or holding
company or any other subsidiary of its holding company.
"Agent's Spot Rate of Exchange" means the Agent's spot rate of exchange for
the purchase of the relevant currency with the Base Currency in the Paris
foreign exchange market at or about 11:00 a.m. on a particular day.
"Amendment and Restatement Agreement" means the amendment and restatement
agreement dated 25 February 2010 amending and restating this Agreement.
"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"Availability Period" means:
(a) in relation to Facility A, the period from and including the date of
this Agreement to and including the Business Day falling one (1)
calendar month prior to the Termination Date (or, if such date is not
a Business Day, on the Business Day immediately prior to such date);
and
(b) in relation to the Swingline Facility, the period from and including
the date of this Agreement to and including the fifth Business Day
before the Termination Date.
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"Available Commitment" means, in relation to a Facility, a Lender's
Commitment under that Facility minus:
(a) the Base Currency Amount of its (or its Affiliate's) participation in
any outstanding Utilisations; and
(b) in relation to any proposed Utilisation, the Base Currency Amount of
its (or its Affiliate's) participation in any Utilisations that are
due to be made on or before the proposed Utilisation Date,
other than, in relation to any proposed Utilisation, that Lender's (or its
Affiliate's) participation in any Utilisations that are due to be repaid or
prepaid on or before the proposed Utilisation Date.
"Available Facility" means any of Available Facility A or Available
Swingline Facility.
"Available Facility A" means the aggregate for the time being of each
Lender's Available Commitment in respect of Facility A.
"Available Swingline Commitment" has the meaning given to such term in
paragraph 8.1.1 of Clause 8.1 (General).
"Available Swingline Facility" has the meaning given to such term in
paragraph 8.1.1 of Clause 8.1 (General).
"AXA Consolidated Net Worth" means the sum of (i) total shareholder's
equity (including ordinary shares, capital in excess of nominal value and
retained earnings and reserves), (ii) minority interests, (iii) instruments
junior to subordinated debt (if any), (iv) subordinated debt and (v)
mandatorily convertible bonds and notes, as each such item is described in
the most recent annual consolidated financial statements of the Company.
For the avoidance of doubt, as at 31 December 2008 AXA Consolidated Net
Worth represented forty seven billion two hundred and thirty two million
euros (EUR 47,232,000,000).
"Bankruptcy Code" means Title 11 of the United States of America Code
entitled Bankruptcy (or any successor thereto) as amended.
"Base Currency" means euro.
"Base Currency Amount" means the amount specified in the Utilisation
Request delivered by a Borrower for that Utilisation or, if the amount
requested is not denominated in the Base Currency, that amount converted
into the Base Currency at the Agent's Spot Rate of Exchange on the date
which is three (3) Business Days before the Utilisation Date or, if later,
on the date the Agent receives the Utilisation Request, adjusted to reflect
any repayment or prepayment of the Utilisation.
"Borrower" means an Original Borrower or an Additional Borrower, unless it
has ceased to be a Borrower in accordance with Clause 36 (Changes to the
Obligors).
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"Break Costs" means the amount (if any) by which:
(a) the interest (less the Margin) which a Lender should have received for
the period from the date of receipt of all or any part of its
participation in a Loan or Unpaid Sum to the last day of the current
Interest Period in respect of that Loan or Unpaid Sum, had the
principal amount or Unpaid Sum received been paid on the last day of
that Interest Period,
exceeds:
(b) the amount which that Lender would be able to obtain by placing an
amount equal to the principal amount or Unpaid Sum received by it on
deposit with a leading bank in the Relevant Interbank Market for a
period starting on the Business Day following receipt or recovery and
ending on the last day of the current Interest Period.
"Business Day" means a day (other than a Saturday or Sunday) on which banks
are open for general business in:
(a) London, Paris and New York; and
(b) in relation to any date for payment or purchase of a sum denominated
in an Optional Currency, the principal financial centre of the country
of such Optional Currency; or
(c) in relation to any date for payment or purchase of a sum denominated
in euro, any TARGET Day.
"Code" means as at any date, the U.S. Internal Revenue Code of 1986 and the
regulations promulgated and the judicial and administrative decisions
rendered under it, all as in effect on such date.
"Commercial Terms Side Letter" means the side letter dated 25 February 2010
between AXA, AXA Financial, AXA Bermuda and the Agent.
"Commitment" means a Facility A Commitment or a Swingline Commitment.
"Confidential Information" means all information relating to the Company,
any other Obligor, the Group, the Finance Documents or a Facility of which
a Finance Party becomes aware in its capacity as, or for the purposes of
becoming, a Finance Party or which is received by a Finance Party in
relation to, or for the purposes of becoming a Finance Party under, the
Finance Documents or a Facility from either:
(a) any member of the Group or any of its advisers; or
(b) another Finance Party, if the information was obtained by that Finance
Party directly or indirectly from any member of the Group or any of
its advisers,
in whatever form, and includes information given orally and any document,
electronic file or any other way of representing or recording information
which contains or is derived or copied from such information but excludes
information that:
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(i) is or becomes public information other than as a direct or
indirect result of any breach by that Finance Party of Clause 50
(Confidentiality); or
(ii) is identified in writing at the time of delivery as
non-confidential by any member of the Group or its advisers; or
(iii) is known by that Finance Party before the date the information
is disclosed to it in accordance with paragraphs (a) or (b)
above or is lawfully obtained by that Finance Party after that
date, from a source which is, as far as that Finance Party is
aware, unconnected with the Group and which, in either case, as
far as that Finance Party is aware, has not been obtained in
breach of, and is not otherwise subject to, any obligation of
confidentiality.
"Confidentiality Undertaking" means a confidentiality undertaking
substantially in the form set out in Schedule 8 (Form of Confidentiality
Undertaking) or in any other form agreed between the Company and the Agent.
"Defaulting Lender" means any Lender:
(a) which has failed to make its participation in a Loan available or has
notified the Agent that it will not make its participation in a Loan
available by the Utilisation Date of that Loan in accordance with
Clause 5.4 (Lenders' participation) or Clause 8.4 (Swingline Lenders'
participation); or
(b) with respect to which an Insolvency Event has occurred and is
continuing,
unless, in the case of paragraph (a) above:
(i) its failure to pay is caused by:
(A) administrative or technical error; or
(B) a Disruption Event; and
payment is made within five (5) Business Days of its due date; or
(ii) the Lender is disputing in good faith whether it is
contractually obliged to make the payment in question.
"Disruption Event" means either or both of:
(a) a material disruption to those payment or communications systems or to
those financial markets which are, in each case, required to operate
in order for payments to be made in connection with the Facilities (or
otherwise in order for the transactions contemplated by the Finance
Documents to be carried out) which disruption is not caused by, and is
beyond the control of, any of the Parties; or
-5-
(b) the occurrence of any other event which results in a disruption (of
technical or systems-related nature) to the treasury or payments
operations of a Party preventing that, or any other Party:
(i) from performing its payment obligations under the Finance
Documents; or
(ii) from communicating with other Parties in accordance with the
terms of the Finance Documents,
and which (in either such case) is not caused by, and is beyond the control
of, the Party whose operations are disrupted.
"DOL" means the U.S. Department of Labor, or any entity succeeding to all
or any of its functions.
"Employee Plan" means an employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which a
U.S. Borrower or a subsidiary of a U.S. Borrower which is an ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"ERISA" means, at any date, the United States Employee Retirement Income
Security Act of 1974 and the regulations promulgated and rulings issued
under it, all as the same may be in effect at such date.
"ERISA Affiliate" means any person that for purposes of Title I and Title
IV of ERISA and Section 412 of the Code would be deemed at any relevant
time to be a single employer with a U.S. Borrower, pursuant to Section
414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.
"ERISA Event" means:
(a) an event described in Sections 4043 (c) (1), (2), (3), (5), (6), (8)
or (9) of ERISA with respect to an Employee Plan;
(b) the withdrawal of any U.S. Borrower from an Employee Plan subject to
Section 4063 of ERISA during a plan year in which it was a substantial
employer, as defined in Section 4001(a) (2) of ERISA;
(c) the complete or partial withdrawal of any U.S. Borrower or any
subsidiary of a U.S. Borrower which is an ERISA Affiliate from any
Multiemployer Plan or the insolvency of any Multiemployer Plan;
(d) the filing of a notice of intent to terminate an Employee Plan or the
treatment of a plan amendment as a termination under Section 4041 of
ERISA;
(e) the institution of proceedings by the PBGC to terminate or appoint a
trustee to administer an Employee Plan or Multiemployer Plan;
(f) the failure to make any required contribution to an Employee Plan;
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(g) any other event or condition which might reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Employee Plan or
Multiemployer Plan;
(h) the imposition of any liability under the Title IV of ERISA, other
than for PBGC premiums due but not delinquent under Section 4007 of
ERISA;
(i) a prohibited transaction (as described in Code Section 4975 or ERISA
Section 406) shall occur with respect to any Employee Plans;
(j) a determination that any Employee Plan is, or is expected to be, in
"at risk" status (as defined in Section 303(i)(4) of ERISA or Section
430(i)(4) of the Code; or
(k) any U.S. Borrower shall request a minimum funding waiver from the IRS
with respect to any Employee Plan.
"EURIBOR" means, in relation to any Loan in euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the Interest Period of that Loan)
the arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Agent at its request quoted by the
Reference Banks to leading banks in the European interbank market,
as of the Specified Time on the Quotation Day for the offering of deposits
in euro for a period comparable to the Interest Period of the relevant
Loan.
"Event of Default" means any event or circumstance specified as such in
Clause 31 (Events of Default).
"Facility" means each of Facility A or the Swingline Facility.
"Facility A" means the revolving multicurrency credit facility made
available under this Agreement, as described in Clause 2 (The Facilities).
"Facility A Commitment" means:
(a) in relation to an Original Facility A Lender, the amount in the Base
Currency set opposite its name under the heading "Facility A
Commitment" in Part A of Schedule 1 (The Original Parties) and the
amount of any other Facility A Commitment transferred to it under this
Agreement; and
(b) in relation to any other Facility A Lender, the amount in the Base
Currency of any Facility A Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
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"Facility A Lender" means:
(a) any Original Facility A Lender;
(b) in relation to a Facility A Loan the participation of an Original
Facility A Lender in which was made available by an Affiliate, that
Affiliate; and
(c) any bank or financial institution which has become a Party in relation
to Facility A in accordance with Clause 33 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the terms of
this Agreement.
"Facility A Loan" means a loan (other than a Swingline Loan) made or to be
made under Facility A or the principal amount outstanding for the time
being of that loan.
"Facility Office" means the office or offices notified by a Lender to the
Agent in writing on or before the date it becomes a Lender (or, following
that date, by not less than five (5) Business Days' written notice) as the
office or offices through which it (or, in the circumstances described in
Clause 5.4.4, its Affiliate) will perform its obligations under this
Agreement.
"Federal Funds Rate" means, in relation to any day, the rate per annum
equal to:
(a) the weighted average of the rates on overnight Federal funds
transactions with members of the U.S. Federal Reserve System arranged
by Federal funds brokers, as published for that day (or, if that day
is not a New York Business Day, for the immediately preceding New York
Business Day) by the Federal Reserve Bank of New York; or
(b) if a rate is not so published for any day which is a New York Business
Day, the average of the quotations for that day on such transactions
received by the Swingline Agent from three Federal funds brokers of
recognised standing selected by the Swingline Agent.
"Fee Letter" means any letter or letters dated on or about the date of this
Agreement between the Arrangers and the Company (or the Agent and the
Company) setting out any of the fees referred to in Clause 16 (Fees).
"Finance Document" means this Agreement, the Amendment and Restatement
Agreement, the Commercial Terms Side Letter, any Fee Letter, any Accession
Letter, any Resignation Letter and any other document designated as such by
the Agent and the Company.
"Finance Party" means the Agent, the Swingline Agent, the Arrangers or a
Lender.
"Financial Indebtedness" means any indebtedness for or in respect of:
(a) borrowed moneys;
(b) any debenture, bond, note, loan stock or other security;
-8-
(c) any acceptance or other documentary credit;
(d) 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;
(e) any lease (including, without limitation, capital leases) entered into
primarily as a method of raising finance or financing the acquisition
of the asset leased;
(f) any indebtedness for money owing in respect of any interest rate swap,
or currency swap or other derivative instruments, such indebtedness to
be measured on a ▇▇▇▇-to-market basis after application, with respect
to any particular counterparty, of the relevant ISDA or FBF netting
procedures but excluding any such indebtedness which is secured by
collateral at the relevant time; or
(g) 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.
"Financial Instruments" means (i) eurobonds or other bonds including
government bonds rated AA or AA equivalent or better, (ii) euro, domestic
U.S. or sterling commercial paper rated A1/P1 or A1/P1 equivalent or
better, (iii) prime bank certificates of deposit or (iv) any other
financial instrument approved by all of the L/C Lenders.
"GAAP" means, in relation to any person, generally accepted accounting
principles in that person's jurisdiction of organisation, including IFRS.
"Group" means the Company and its Subsidiaries for the time being.
"IFRS" means international accounting standards within the meaning of the
IAS Regulation 1606/2002 to the extent applicable to the relevant financial
statements.
"Impaired Agent" means the Agent at any time when:
(a) it has failed to make (or has notified a Party that it will not make)
a payment required to be made by it under the Finance Documents by the
due date for payment;
(b) (if the Agent is also a Lender) it is a Defaulting Lender under
paragraph (a) of the definition of "Defaulting Lender"; or
(c) an Insolvency Event has occurred and is continuing with respect to the
Agent;
unless, in the case of paragraph (a) above:
(i) its failure to pay is caused by:
(A) administrative or technical error; or
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(B) a Disruption Event; and
payment is made within five (5) Business Days of its due date;
or
(ii) the Agent is disputing in good faith whether it is contractually
obliged to make the payment in question.
"Insolvency Event" in relation to a Finance Party means the winding-up,
dissolution, administration or reorganisation (other than a liquidation or
reorganisation on a solvent basis) or appointment of a liquidator,
receiver, administrative receiver, administrator, compulsory manager or
other similar officer in respect of that Finance Party or all or
substantially all of that Finance Party's assets or any analogous procedure
or step is taken in any jurisdiction with respect to that Finance Party.
"Interest Period" means:
(a) in relation to a Loan, other than a Swingline Loan, each period
determined in accordance with Clause 14 (Interest Periods);
(b) in relation to a Swingline Loan, each period determined in accordance
with paragraph 8.3.1(d) of Clause 8.3 (Completion of a Utilisation
Request for Swingline Loans); and
(c) in relation to an Unpaid Sum, each period determined in accordance
with Clause 13.3 (Default interest).
"IRS" means the United States Internal Revenue Service or any successor
thereto.
"L/C Lender" means:
(a) those banks and financial institutions (being a Facility A Lender or
an Affiliate of a Facility A Lender) which are listed in Part B of
Schedule 1 (The Original Parties) as L/C Lenders; or
(b) any other person that becomes a L/C Lender after the date of this
Agreement in accordance with Clause 33 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"Lender" means any Facility A Lender, Swingline Lender or L/C Lender.
"Letter of Credit" means a letter of credit, substantially in the form set
out in Schedule 10 (Forms of Letter of Credit) or in any other form
requested by a Borrower and agreed by the Agent (with the prior consent of
the L/C Lenders, such consent not to be unreasonably withheld).
"LIBOR" means, in relation to any Loan in an Optional Currency:
(a) the applicable Screen Rate; or
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(b) (if no Screen Rate is available for the currency or Interest Period of
that Loan) the arithmetic mean of the rates (rounded upwards to four
decimal places) as supplied to the Agent at its request quoted by the
Reference Banks to leading banks in the London interbank market,
as of the Specified Time on the Quotation Day for the offering of deposits
in that Optional Currency and for a period comparable to the Interest
Period for that Loan.
"Loan" means a Facility A Loan (or, as the case may be, a Separate Loan) or
a Swingline Loan.
"Majority Lenders" means a Lender or Lenders whose Commitments aggregate
more than 66-2/3 per cent of the Total Commitments (or, if the Total
Commitments have been reduced to zero, aggregated more than 66-2/3 per
cent of the Total Commitments immediately prior to that reduction).
"Mandate Letter" means the mandate letter from the Mandated Lead Arrangers
to the Company dated 8 November 2009, as amended by that mandate extension
letter dated 27 November 2009.
"Mandatory Cost" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost Formulae).
"Margin" has the meaning given to such term in the Commercial Terms Side
Letter.
"Margin Stock" means margin stock or "margin security" within the meaning
of Regulations T, U and X.
"Material Adverse Effect" means any effect which is materially adverse to
the financial condition of the Group as a whole and is expected to be
materially adverse to the ability of the Obligors, taken as a whole, to
comply with any of their payment obligations under this Agreement.
"Material Subsidiary" means:
(a) any Subsidiary of AXA engaged in insurance business and regulated as
such whose contribution to the consolidated premium or consolidated
gross technical reserves of AXA represents five per cent (5%) or more
of the consolidated gross premium issued or consolidated gross
technical reserves, respectively, of the Group, as each such item is
so described in the most recent annual consolidated financial
statements of AXA;
(b) any Subsidiary of AXA engaged in asset management and regulated as
such which has assets under management of more than thirty per cent
(30%) of the aggregate assets under management of the Group, as each
such item is so described in the most recent annual consolidated
financial statements of AXA; and
(c) any Subsidiary of AXA engaged in banking and regulated as such whose
total assets exceed four per cent (4%) of the consolidated gross
assets of the Group, as each such item is so described in the most
recent annual consolidated financial statements of AXA.
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"Month" means a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next calendar month, except
that:
(a) (subject to paragraph (c) below) if the numerically corresponding day
is not a Business Day, that period shall end on the next Business Day
in that calendar month in which that period is to end if there is one,
or if there is not, on the immediately preceding Business Day;
(b) if there is no numerically corresponding day in the calendar month in
which that period is to end, that period shall end on the last
Business Day in that calendar month; and
(c) if an Interest Period begins on the last Business Day of a calendar
month, that Interest Period shall end on the last Business Day in the
calendar month in which that Interest Period is to end,
it being specified that the above rules will only apply to the last Month
of any period.
"Multiemployer Plan" means a "multiemployer plan" (as defined in Section
(3)(37) of ERISA) contributed to for any employees of a U.S. Borrower or
any subsidiary of a U.S. Borrower which is an ERISA Affiliate thereof.
"New York Business Day "has the meaning given to it in paragraph 8.1.1 of
Clause 8.1 (General).
"Non-Cooperative Jurisdiction" means any jurisdiction:
(a) which is not a Member State of the European Union; and
(b) the position of which with respect to a tax transparency and exchange
of information for tax matters was examined by the Organisation for
Economic Co-operation and Development; and
(c) which has not entered into an agreement for administrative assistance
enabling exchange of any necessary information for the purpose of
application of tax legislation with France; and
(d) which has not entered into an agreement for administrative assistance
enabling exchange of any necessary information for the purpose of
application of tax legislation with at least 12 States or territories
other than France.
"Obligor" means a Borrower or the Guarantor.
"Optional Currency" means a currency (other than the Base Currency) which
complies with the conditions set out in Clause 4.3 (Conditions relating to
Optional Currencies).
"Original Financial Statements" means the audited consolidated financial
statements of the Group for the financial year ended 31 December 2008.
"Overall Commitment" has the meaning given to it in paragraph 8.1.1 of
Clause 8.1 (General).
-12-
"Participating Member State" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency in
accordance with legislation of the European Community relating to Economic
and Monetary Union.
"Party" means a party to this Agreement.
"PBGC" means the U.S. Pension Benefit Guaranty Corporation, or any entity
succeeding to all or any of its functions under ERISA.
"Qualifying Lender" has the meaning given to it in Clause 17 (Tax gross-up
and indemnities).
"Quotation Day" means, in relation to any period for which an interest rate
is to be determined:
(a) (if the currency is sterling) the first day of that period;
(b) (if the currency is euro) two (2) TARGET Days before the first day of
that period; or
(c) (for any other currency) two (2) Business Days before the first day of
that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Agent in accordance with market practice in the Relevant
Interbank Market (and if quotations would normally be given by leading
banks in the Relevant Interbank Market on more than one day, the Quotation
Day will be the last of those days).
"Reference Banks" means, in relation to LIBOR and Mandatory Cost the
principal London offices of BNP Paribas, Calyon, Deutsche Bank AG, HSBC
Bank plc and Societe Generale and, in relation to EURIBOR, the principal
office in Paris of BNP Paribas, Calyon, Deutsche Bank AG, HSBC France and
Societe Generale or such other Acceptable Banks as may be appointed by the
Agent in consultation with the Company.
"Regulations T, U and X" means, respectively, Regulations T, U and X of the
Board of Governors of the Federal Reserve System of the United States (or
any successor) as now and from time to time in effect from the date of this
Agreement.
"Relevant Interbank Market" means in relation to euro, the European
interbank market and, in relation to any other currency, the London
interbank market.
"Repeating Representations" means each of the representations set out in
Clauses 23.1 (Status), 23.2 (Corporate action), 23.3 (Authorisations), 23.4
(Binding obligations), 23.5 (No conflict), 23.8 (Pari passu ranking) and
paragraph 1.1(f) of Schedule 11 (U.S. Borrower Representations and
Warranties).
"Representative" means any delegate, agent, manager, administrator,
nominee, attorney, trustee or custodian.
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"Resignation Letter" means a letter substantially in the form set out in
Schedule 7 (Form of Resignation Letter).
"Screen Rate" means:
(a) in relation to LIBOR, the British Bankers Association Interest
Settlement Rate for the relevant currency and period; and
(b) in relation to EURIBOR, the percentage rate per annum determined by
the Banking Federation of the European Union for the relevant period,
displayed on the appropriate page of the Reuters screen. If the agreed page
is replaced or service ceases to be available, the Agent may specify
another page or service displaying the appropriate rate after consultation
with the Company and the Lenders.
"SEC" means the United States Securities and Exchange Commission or any
successor thereto.
"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.
"Separate Loan" has the meaning given to that term in Clause 11
(Repayment).
"Special Early Termination Event" means any of the circumstances described
as such in Clause 32 (Special Early Termination Events).
"Specified Time" means a time determined in accordance with Schedule 9
(Timetables).
"Subsidiary" of the Company means any company whose accounts are
consolidated with those of the Company by the full consolidation method
(integration globale) in accordance with the principles and methods of
consolidation applied by the Company from time to time.
"Swingline Commitment" means:
(a) in relation to an Original Swingline Lender on the date of this
Agreement, the amount in U.S. dollars set opposite its name under the
heading "Swingline Commitment" in Part B of Schedule 1 (The Original
Parties) and the amount of any other Swingline Commitment transferred
to it under this Agreement; and
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(b) in relation to any other Swingline Lender, the amount of any Swingline
Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Swingline Facility" means the U.S. dollar swingline loan facility made
available under this Agreement as described in Clause 8 (Utilisation -
Swingline Loans).
"Swingline Interest Rate" has the meaning given to such term in the
Commercial Terms Side Letter.
"Swingline Lender" means:
(a) those banks and financial institutions (being also Original Lenders or
the Affiliates of Original Lenders) which are listed in Part B of
Schedule 1 (The Original Parties) as Swingline Lenders; or
(b) any other person that becomes a Swingline Lender after the date of
this Agreement in accordance with Clause 33 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"Swingline Loan" means a loan made or to be made under the Swingline
Facility or the principal amount outstanding for the time being of that
loan.
"TARGET 2" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system which uses a single shared platform and
which was launched on 19 November 2007.
"TARGET Day" means any day on which TARGET 2 is open for the settlement of
payments in euro.
"Tax" means any tax, levy, impost, duty or other charge or withholding of a
similar nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same).
"Termination Date" means the date which is the fifth anniversary of the
date of this Agreement.
"Total Commitments" means one billion four hundred million euros (EUR
1,400,000,000) at the date of this Agreement.
"Total Swingline Commitments" has the meaning given to it in paragraph
8.1.1 of Clause 8.1 (General).
"Transfer Agreement" means an agreement substantially in the form set out
in Schedule 5 (Form of Transfer Agreement) or any other form agreed between
the Agent and the Company.
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"Transfer Date" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Agreement; and
(b) the date on which the Agent executes the Transfer Agreement.
"Unfunded Pension Liability" means the excess of an Employee Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of
that plan's assets, determined in accordance with the assumptions used for
funding the Employee Plan pursuant to Section 412 of the Code for the
applicable plan year.
"Unpaid Sum" means any sum due and payable but unpaid by an Obligor under
the Finance Documents.
"U.S." and "United States" means the United States of America, its
territories, possessions and other areas subject to the jurisdiction of the
United States of America.
"U.S. Borrower" means:
(a) a Borrower whose jurisdiction of organisation is a state of the United
States of America or the District of Columbia; or
(b) in respect of Clause 17 (Tax gross-up and indemnities), AXA Bermuda.
"U.S. Person" means a "United States person" within the meaning of section
7701(a)(30) of the Code.
"Utilisation" means a Loan or a Letter of Credit.
"Utilisation Date" means the date on which a Utilisation is made.
"Utilisation Request" means a notice substantially in the form set out in
the appropriate part of Schedule 3 (Requests).
"VAT" means value added tax and any other tax of a similar nature.
1.2 Construction
1.2.1 Unless a contrary indication appears, any reference in this
Agreement
to:
(a) the "Agent", the "Arrangers", any "Finance Party", any
"Lender", any "Obligor" or any "Party" shall be construed so
as to include its successors in title, permitted assigns and
permitted transferees;
(b) "assets" includes present and future properties, revenues and
rights of every description;
(c) "corporate reconstruction" includes in relation to a company
any contribution of part of its business in consideration of
shares (apport partiel d'actifs) and any demerger (scission)
implemented in accordance with articles L.236-1 to L.236-24
of the French Code de Commerce;
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(d) a "Finance Document" or any other agreement or instrument is
a reference to that Finance Document or other agreement or
instrument as amended or novated;
(e) "gross negligence" means "faute lourde";
(f) "guarantee" includes any "cautionnement", "aval" and any
"garantie" which is independent from the debt to which it
relates;
(g) "holding company" means, in relation to any person, any other
company or corporation of which it is a subsidiary;
(h) a "law" includes any law, decree, regulation and any other
binding act of any state or the European Union;
(i) "merger" includes any fusion implemented in accordance with
articles L.236-1 to L.236-24 of the French Code de Commerce;
(j) a "person" includes any person, firm, company, corporation,
government, state or agency of a state or any grouping
(whether or not having separate legal personality) or two or
more of the foregoing;
(k) a "subsidiary" of a company or corporation shall be construed
as a reference to any company or corporation:
(i) which is controlled, directly or indirectly, by that
company or corporation;
(ii) more than half the issued equity share capital of which
is beneficially owned, directly or indirectly, by that
company or corporation; or
(iii) which is a subsidiary of another subsidiary of that
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;
(l) "trustee, fiduciary and fiduciary duty" has in each case the
meaning given to such term under any applicable law;
(m) "wilful misconduct" means "dol";
(n) a provision of law is a reference to that provision as amended
or re-enacted; and
(o) a time of day is a reference to Paris time.
1.2.2 Section, Clause and Schedule headings are for ease of reference
only.
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1.2.3 Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection with
any Finance Document has the same meaning in that Finance Document
or notice as in this Agreement.
1.2.4 An Event of Default or Special Early Termination Event is
"continuing" if it has not been remedied or waived.
1.2.5 There is an Event of Default "in relation to" a particular Obligor
if:
(a) when the Event of Default is one mentioned in Clause 31.1
(Non-payment), 31.2 (Material Breach) or 31.3 (Financial
Indebtedness), the failure to pay, material breach or
Financial Indebtedness (as the case may be) is that of that
Obligor;
(b) when the Event of Default is the one mentioned in Clause 31.4
(Representations), the representation, statement or
information is made (or deemed repeated) or provided by that
Obligor; and
(c) in any other case, the event which constitutes the Event of
Default occurs in respect of that Obligor.
1.2.6 With respect to the following currency symbols and definitions,
(a) "Australian dollars" denotes the lawful currency of Australia;
(b) "Canadian dollars" denotes the lawful currency of Canada;
(c) "EUR", "euro" and "(euro)" denote the lawful currency of the
Participating Member States;
(d) "sterling" and "(pound)" denote the lawful currency of the
United Kingdom;
(e) "Swiss francs" denotes the lawful currency of the Swiss
Confederation;
(f) "U.S. dollars" and "$" denote the lawful currency of the
United States of America; and
(g) "yen" denotes the lawful currency of Japan.
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SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 The Facilities
Subject to the terms of this Agreement:
2.1.1 The Facility A Lenders make available to the Borrowers a
multicurrency revolving credit facility in an aggregate amount
equal to the Total Commitments.
2.1.2 The Swingline Lenders make available to the Borrowers a U.S. dollar
swingline facility, as a sub-facility of Facility A, in an
aggregate amount equal to the Total Swingline Commitments.
2.1.3 The L/C Lenders make available to the Borrowers a letter of credit
facility in an aggregate amount equal to the Total Commitments.
2.1.4 The aggregate amount made available to the Borrowers under Facility
A, the Swingline Facility and the Letters of Credit shall in any
case not exceed the Total Commitments.
2.2 Finance Parties' rights and obligations
2.2.1 The obligations of each Finance Party under the Finance Documents
are several (conjointes et non solidaires). Failure by a Finance
Party to perform its obligations under the Finance Documents does
not affect the obligations of any other Party under the Finance
Documents. No Finance Party is responsible for the obligations of
any other Finance Party under the Finance Documents.
2.2.2 The rights of each Finance Party under or in connection with the
Finance Documents are separate and independent rights and any debt
arising under the Finance Documents to a Finance Party from an
Obligor shall be a separate and independent debt.
2.2.3 A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
3. PURPOSE
3.1 Purpose
3.1.1 The Borrowers shall apply the proceeds of all Facility A Loans
(other than Swingline Loans) towards the general corporate purposes
of the Group (including working capital and capital expenditure).
3.1.2 Each Swingline Borrower shall apply the proceeds of all Swingline
Loans towards the refinancing of any note or other instrument
maturing under a U.S. dollar commercial paper programme of such
Swingline Borrower. A Swingline Loan may not be applied in
repayment or prepayment of another Swingline Loan.
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3.1.3 The issue of a Letter of Credit may only be requested for the
purposes mentioned in paragraph 6.2.2(h).
3.2 Monitoring
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 Initial conditions precedent
4.1.1 No Borrower may deliver a Utilisation Request unless the Agent has
received all of the documents and other evidence listed in Part A
of Schedule 2 (Conditions precedent) in form and substance
reasonably satisfactory to the Agent. The Agent shall notify the
Company and the Lenders promptly upon being so satisfied.
4.1.2 No Borrower may deliver a Utilisation Request unless the Agent has
received evidence in form and substance reasonably satisfactory to
it that on the date of the Utilisation Request the delivery and
payment (reglement livraison) in respect of the rights issue of the
Company launched on 9 November 2009 has been completed. The Agent
shall notify the Company and the Lenders promptly upon being so
satisfied.
4.2 Further conditions precedent
The Lenders will not be obliged to comply with Clause 5.4 (Lenders'
participation) in relation to a Utilisation Request by a particular
Borrower if on the date of the Utilisation Request or on the proposed
Utilisation Date:
(a) an Event of Default in relation to that Borrower is continuing or
would result from the proposed Loan or an Event of Default in
relation to the Guarantor is continuing or would result from the
proposed Loan; or
(b) the Repeating Representations to be made by that Borrower or the
Guarantor are not true and correct in all material respects.
4.3 Conditions relating to Optional Currencies
4.3.1 A currency will constitute an Optional Currency in relation to a
Facility A Loan if:
(a) it is readily available in the amount required and freely
transferable and convertible into the Base Currency in the
Relevant Interbank Market on the Quotation Day and the
Utilisation Date for that Loan; and
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(b) it is U.S. dollars, sterling, yen, Swiss francs, Australian
dollars or Canadian dollars or has been approved by the Agent
(acting on the instructions of all of the Facility A Lenders)
on or prior to receipt by the Agent of the relevant
Utilisation Request for that Loan.
4.3.2 If the Agent has received a written request from the Company for a
currency to be approved under paragraph 4.3.1(b) above, the Agent
will confirm to the Company by the Specified Time whether or not
the Facility A Lenders have granted their approval.
4.3.3 Notwithstanding paragraphs 4.3.1 and 4.3.2 above, if a Facility A
Loan is to be denominated in an Optional Currency during an
Interest Period relating thereto but to give effect to such request
would result in Facility A Loans being outstanding in more than two
Optional Currencies (other than U.S. dollars), the Agent shall
notify the Borrowers and the Lenders and such Loan shall, (i) if
requested by AXA Financial, be denominated in U.S. dollars, and
(ii) if requested by any Borrower other than AXA Financial, be
denominated in euro in an amount equal to its Base Currency Amount.
4.4 Maximum number of Utilisations
4.4.1 A Borrower may not deliver a Utilisation Request if as a result of
the proposed Utilisation fifteen (15) or more Facility A Loans
(excluding, for the avoidance of doubt, Swingline Loans and Letters
of Credit) would be outstanding.
4.4.2 Any Loan made by a single Lender under Clause 10.2 (Unavailability
of a currency) shall not be taken into account in this Clause 4.4
(Maximum number of Utilisations).
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SECTION 3
UTILISATION
5. UTILISATION - LOANS
5.1 Delivery of a Utilisation Request
5.1.1 A Borrower may utilise Facility A by delivery to the Agent of a
duly completed Utilisation Request not later than the Specified
Time.
5.1.2 The Proposed Utilisation Date in any Utilisation Request shall not
be earlier than three (3) Business Days (or in the case of sterling
one (1) Business Day) following the date of the Utilisation Request
(or such shorter period as may be reasonably agreed by the Agent in
consultation with the Lenders under the Facility to which the
Utilisation Request relates).
5.2 Completion of a Utilisation Request
5.2.1 Each Utilisation Request is irrevocable and will not be regarded as
having been duly completed unless:
(a) it identifies the Facility to be utilised;
(b) the proposed Utilisation Date is a Business Day within the
Availability Period for Facility A;
(c) the currency and amount of the Utilisation comply with Clause
5.3 (Currency and amount); and
(d) the proposed Interest Period complies with Clause 14 (Interest
Periods).
5.2.2 Only one (1) Loan may be requested in each Utilisation Request.
5.3 Currency and amount
5.3.1 The currency specified in a Utilisation Request under Facility A
must be the Base Currency or an Optional Currency.
5.3.2 The amount of the proposed Loan must be:
(a) if the currency selected is the Base Currency, an integral
multiple of ten million euro (EUR 10,000,000) which is at
least twenty million euro (EUR 20,000,000) or, if less, the
Available Facility; or
(b) if the currency selected is an Optional Currency, a Base
Currency Amount of at least twenty million euro (EUR
20,000,000) and thereafter in integral multiples of ten
million euro (EUR 10,000,000) or, if less, the Available
Facility; and
(c) in any event such that its Base Currency Amount is less than
or equal to the Available Facility.
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5.4 Lenders' participation
5.4.1 If the conditions set out in this Agreement have been met and
subject to Clause 11 (Repayment), each Lender shall make its
participation in each Loan available by the Utilisation Date
through its Facility Office.
5.4.2 The amount of each Facility A Lender's participation in each
Facility A Loan will be equal to the proportion borne by its
Available Commitment in respect of Facility A to the Available
Facility A immediately prior to making the Loan.
5.4.3 The Agent shall determine the Base Currency Amount of each Facility
A Loan which is to be made in an Optional Currency and shall notify
each Lender of the amount, currency and the Base Currency Amount of
each Loan and the amount of its participation in that Loan, in each
case by the Specified Time (and, if different, the amount of that
participation to be made available in cash).
5.4.4 When in Part A or Part C of Schedule 1, a "U.S. Affiliate" is
specified against the name of a particular Facility A Lender, the
participation of that Lender in any Facility A Loan may be made
available as to the whole or part by that Affiliate through its
Facility Office and if it does so:
(a) the Lender of which it is an Affiliate shall so inform the
Agent no later than the time when the corresponding payment is
made to the Agent under Clause 40.1 (Payments to the Agent);
(b) the Affiliate will be treated as a separate "Lender" for the
purposes of that Loan (but the Lender and its Affiliate will
be treated as having a single Commitment for all other
purposes, including the determination of Majority Lenders);
and
(c) any transfer thereafter by the Lender of which it is an
Affiliate of all its rights and obligations in respect of a
particular Facility must include its Affiliate's rights and
obligations in respect of Loans made under that Facility.
6. UTILISATION - LETTERS OF CREDIT
6.1 General
6.1.1 In this Clause 6 (Utilisation - Letters of Credit) and in Clause 7
(The Letters of Credit):
(a) "L/C Proportion" means, in relation to a L/C Lender in respect
of any Letter of Credit, the proportion (expressed as a
percentage) borne by (1) its Available Commitment in respect
of Facility A (or the Available Commitment in respect of
Facility A of the Facility A Lender of which it is an
Affiliate) to (2) the Available Facility A immediately prior
to the issue of that Letter of Credit, adjusted to reflect any
transfer under this Agreement to or by that L/C Lender;
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(b) "Term" means the period specified in the relevant Letter of
Credit during which the L/C Lenders are under a liability
under a Letter of Credit; and
(c) the "Expiry Date" of a Letter of Credit means the last day of
its initial Term or, if it is renewed, of the last Term for
which it is renewed, which in any event shall be no later than
the Termination Date.
6.1.2 Any reference in this Agreement to:
(a) the Interest Period of a Letter of Credit will be construed as
a reference to a Term of that Letter of Credit;
(b) an amount borrowed includes any amount utilised by way of
Letter of Credit;
(c) a Utilisation made or to be made by a Borrower includes a
Letter of Credit issued on its behalf;
(d) a Lender funding its participation in a Utilisation includes
an L/C Lender participating in a Letter of Credit;
(e) amounts outstanding or payable under this Agreement include
amounts outstanding or payable under or in respect of any
Letter of Credit;
(f) an outstanding amount of a Letter of Credit at any time is the
maximum amount that is or may be payable by the Borrower in
respect of that Letter of Credit at that time;
(g) a Borrower "repaying" or "prepaying" a Letter of Credit means,
unless otherwise specified:
(i) that Borrower, if it is a French company, providing cash
cover for that Letter of Credit;
(ii) that Borrower, if it is not a French company, providing
cash cover for that Letter of Credit or granting to the
L/C Lenders security for amounts payable by it in
respect of that Letter of Credit in the form of a first
ranking pledge over Financial Instruments, or other
security in form and substance satisfactory to the L/C
Lenders;
(iii) the maximum amount payable under the Letter of Credit
being reduced in accordance with its terms; or
(iv) the L/C Lenders being satisfied that they have no
further liability under that Letter of Credit,
and the amount by which a Letter of Credit is repaid or
prepaid under paragraphs 6.1.2(g)(i), 6.1.2(g)(ii) and
6.1.2(g)(iii) above is the amount of the relevant cash cover,
the market value of the Financial Instruments pledged or the
reduction; and
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(h) a Borrower providing "cash cover" for a Letter of Credit
means:
(i) a Borrower paying an amount in the currency of the
Letter of Credit to the Agent for the L/C Lenders pro
rata to their L/C Proportions when the following
conditions are met:
(A) the payment is expressed to be a transfer to each
L/C Lender by way of cash collateral
(gage-especes) to secure amounts due and payable
to that L/C Lender under this Agreement in respect
of that Letter of Credit; and
(B) the Borrower has executed a security document, in
form and substance satisfactory to each L/C Lender
providing that each amount so transferred to it
becomes repayable to the Borrower only when no
amount is or may be outstanding under the relevant
Letter of Credit, but that the Borrower will be
entitled to remuneration (corresponding,
economically, to interest on the amount
transferred until that time or until its
appropriation in discharge of secured liabilities)
at a rate per annum agreed between it and the
Agent as soon as practicable after the cash cover
is provided, the amount of that remuneration to be
retained as an addition to the cash collateral
(subject to paragraph 7.1.3(b)); or
(ii) a Borrower providing cash collateral in some other form
approved by each L/C Lender, on the terms of a security
document, in form and substance satisfactory to each L/C
Lender, providing for interest on the cash collateral at
a rate per annum agreed between it and the Agent as soon
as practicable after the cash collateral is provided,
the amount of interest accrued from time to time to be
retained as in addition to the cash collateral (subject
to paragraph 7.1.3(b)).
6.1.3 Clause 5 (Utilisation - Loans) does not apply to a Utilisation by
way of Letter of Credit.
6.1.4 In determining the amount of the Available Facility and a L/C
Lender's L/C Proportion of a proposed Letter of Credit for the
purposes of this Agreement, the Available Commitment of a Lender in
relation to Facility A will be calculated ignoring any cash cover
provided for outstanding Letters of Credit.
6.2 Issue of Letters of Credit
6.2.1 A Borrower may request the issue of a Letter of Credit by delivery
to the Agent of a duly completed Utilisation Request substantially
in the form of Part B of Schedule 3 (Utilisation Request - Letters
of Credit) not later than the Specified Time.
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6.2.2 Each Utilisation Request for a Letter of Credit is irrevocable and
will not be regarded as having been duly completed unless:
(a) the proposed Utilisation Date is a Business Day within the
Availability Period for Facility A;
(b) the currency of the Letter of Credit is U.S. dollars;
(c) the amount of the Letter of Credit is not less than five
million U.S. dollars (USD 5,000,000) and not more than the
Available Facility A;
(d) the form of Letter of Credit is attached and complies with the
definition of "Letter of Credit" in Clause 1 (Definitions and
interpretation);
(e) the Term specified for the Letter of Credit ends no later than
the Termination Date;
(f) it confirms the name of the beneficiary and the delivery
instructions for the Letter of Credit are specified;
(g) the Letter of Credit is in favour of a beneficiary who is
domiciled in one of the states of the United States of America
or the District of Columbia (an "Approved Jurisdiction"); and
(h) it specifies that the Letter of Credit is issued to
collateralise the reinsurance risk underwriting business of
the AXA Group as required by the National Association of
Insurance Commissioners (the "NAIC") regulations or any
equivalent applicable regulations in the Approved
Jurisdictions or to replace letters of credit issued for those
purposes prior to the date of this Agreement.
6.2.3 If the conditions for the issue of a Letter of Credit set out in
this Agreement have been met, the L/C Lenders shall issue it, for
which purpose they authorise the Agent to:
(a) complete the effective date of the Letter of Credit;
(b) complete the schedule to the Letter of Credit with the amount
of the L/C Proportion of each L/C Lender; and
(c) execute the Letter of Credit on behalf of each L/C Lender and
following such execution deliver it to the beneficiary on or
before the Utilisation Date.
6.2.4 The L/C Lenders will not be obliged to comply with paragraph 6.2.3
above in relation to a Utilisation Request by a particular Borrower
if on the date of the Utilisation Request or on the proposed
Utilisation Date:
(a) an Event of Default in relation to that Borrower is continuing
or would result from the proposed Utilisation or an Event of
Default in relation to the Guarantor is continuing or would
result from the proposed Utilisation; or
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(b) the Repeating Representations to be made by that Borrower or
the Guarantor are not true and correct in all material
respects.
6.2.5 Each Letter of Credit shall specify each of the L/C Lenders to be
an issuer of the Letter of Credit with a purely several liability
equal to its L/C Proportion of the face value of the Letter of
Credit.
6.2.6 On or before each Utilisation Date for a Letter of Credit, the
Agent shall provide to each L/C Lender details as to: (i) its
beneficiary and (ii) the amount corresponding to the L/C Proportion
of that L/C Lender.
6.3 Renewal of Letters of Credit
6.3.1 Each Letter of Credit shall, unless terminated in accordance with
its terms or returned by the beneficiary, be renewed for the same
period specified in the Utilisation Request for such Letter of
Credit.
6.3.2 The Agent shall, at least ninety (90) days before the end of the
current Term of a Letter of Credit, notify the Borrower at whose
request it was issued if it intends to give to the beneficiary of
the Letter of Credit notice that it will not be renewed for a
further term.
6.3.3 The Agent shall (subject to paragraph 6.3.4 below) only be required
to give such a notice to the beneficiary of a Letter of Credit if
so requested by L/C Lenders whose L/C Proportions of that Letter of
Credit together aggregate more than 66 (2)/3%.
6.3.4 The Agent shall give such a notice to the beneficiary of a Letter
of Credit if necessary to ensure that its Expiry Date falls on or
before the Termination Date.
7. THE LETTERS OF CREDIT
7.1 Letter of Credit Fees
7.1.1 Each Borrower shall pay to the Agent (for the account of each L/C
Lender) a letter of credit fee in U.S. dollars computed at the same
rate as the Margin on the outstanding amount of each Letter of
Credit requested by it for the period from the issue of that Letter
of Credit until its Expiry Date. This fee shall be distributed
according to each L/C Lender's L/C Proportion of that Letter of
Credit.
7.1.2 The accrued letter of credit fee on a Letter of Credit shall be
payable on the last day of each successive period of three (3)
months starting on the date of this Agreement which falls during
any Term of the Letter of Credit and on the Expiry Date for that
Letter of Credit.
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7.1.3 If a Borrower cash covers any part of a Letter of Credit then:
(a) the letter of credit fee payable for the account of each L/C
Lender shall continue to be payable until the Expiry Date of
the Letter of Credit;
(b) the Borrower will be entitled to use the remuneration accrued
on the cash cover to pay those fees.
7.2 Claims under a Letter of Credit
7.2.1 Each Borrower irrevocably and unconditionally authorises the L/C
Lenders to pay any claim made or purported to be made under a
Letter of Credit requested by it and which appears on its face to
be in order (a "claim").
7.2.2 The Agent shall promptly after receipt of a claim under a Letter of
Credit notify to the relevant Borrower details of the date of the
claim, amount to be paid and the beneficiary (but no failure on the
part of the Agent to provide those details shall adversely affect
the rights of the L/C Lenders under this Clause 7 (The Letters of
Credit)).
7.2.3 Each Borrower which requested a Letter of Credit shall, on the date
specified in its notification under paragraph 7.2.4 below, pay to
the Agent for the L/C Lenders an amount equal to the amount of any
claim under that Letter of Credit.
7.2.4 Each Borrower which receives a notification under paragraph 7.2.2
above, shall promptly notify to the Agent the date (falling not
more than five (5) Business Days after receipt by it of the
notification under paragraph 7.2.2 above) on which it will make the
payment required by paragraph 7.2.3 above.
7.2.5 Each Borrower acknowledges that the L/C Lenders:
(a) are not obliged to carry out any investigation or seek any
confirmation from any other person before paying a claim; and
(b) deal in documents only and will not be concerned with the
legality of a claim or any underlying transaction or any
available set-off, counterclaim or other defence of any
person.
7.2.6 The obligations of a Borrower under this Clause will not be
affected by:
(a) the sufficiency, accuracy or genuineness of any claim or any
other document; or
(b) any incapacity of, or limitation on the powers of, any person
signing a claim or other document.
7.2.7 The Borrower which requested the issue of a Letter of Credit under
which the L/C Lenders have paid a claim shall pay interest to the
L/C Lenders on the amount of the claim for the period from the date
on which the claim was paid by the L/C Lenders to the relevant
beneficiary until the due date for reimbursement to them by the
Borrower under paragraph 7.2.3 at a rate equal to that which would
have applied (under Clause 13.1 (Calculation of Interest)) if the
claim had constituted a Facility A Loan outstanding during an
Interest Period corresponding to that period, and the due date for
payment of that interest shall be the last day of that period.
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7.3 Indemnities
Each Borrower shall immediately on demand indemnify each L/C Lender against
any reasonable and duly itemised cost, loss or liability incurred by it
(otherwise than by reason of that L/C Lender's negligence or wilful
misconduct) in acting as an L/C Lender in relation to any Letter of Credit
requested by that Borrower.
8. UTILISATION - SWINGLINE LOANS
8.1 General
8.1.1 In this Clause, Clause 2.1 (The Facilities) and Clause 9 (Repayment
and Prepayment of Swingline Loans):
(a) "Available Swingline Commitment" of a Swingline Lender means
(but without limiting Clause 8.5 (Relationship with Facility
A)) that Lender's Swingline Commitment minus:
(i) the amount of its participation in any outstanding
Swingline Loans; and
(ii) in relation to any proposed Utilisation under the
Swingline Facility, the amount of its participation in
any Swingline Loans that are due to be made under the
Swingline Facility on or before the proposed Utilisation
Date,
other than that Lender's participation in any Swingline Loans
that are due to be repaid or prepaid on or before the proposed
Utilisation Date.
(b) "Available Swingline Facility" means the aggregate for the
time being of each Swingline Lender's Available Swingline
Commitment.
(c) "New York Business Day" means a day (other than a Saturday or
Sunday) on which banks are open for general business in New
York City.
(d) "Overall Commitment" of a Lender means:
(i) its Facility A Commitment; or
(ii) in the case of a Swingline Lender which does not have a
Facility A Commitment, the Facility A Commitment of a
Lender which is its Affiliate.
(e) "Total Swingline Commitments" means the aggregate of the
Swingline Commitments, being one billion US dollars (USD
1,000,000,000) at the date of this Agreement.
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8.1.2 Any reference in this Agreement to an "Interest Period" includes
each period determined under this Agreement by reference to which
interest on a Swingline Loan is calculated.
8.1.3 The following provisions do not apply to Swingline Loans:
(a) Clause 4 (Conditions of Utilisation), except for Clause 4.1
(Initial Conditions Precedent);
(b) Clause 5 (Utilisation - Loans);
(c) Clause 10 (Optional currencies);
(d) Clause 11.1 (Repayment);
(e) Clause 12.4 (Voluntary Prepayment);
(f) Clause 13 (Interest) as it applies to the calculation of
interest on a Loan but not default interest on an overdue
amount;
(g) Clause 14 (Interest Periods); and
(h) Clause 15 (Changes to the calculation of interest).
8.2 Delivery of a Utilisation Request for Swingline Loans
8.2.1 A Borrower may utilise the Swingline Facility by delivery to the
Swingline Agent with a copy to the Agent of a duly completed
Utilisation Request in the form of Part C of Schedule 3
(Utilisation Request - Swingline Loan) not later than the Specified
Time.
8.2.2 Each Utilisation Request for a Swingline Loan must be sent to the
address in New York City notified by the Swingline Agent for this
purpose with a copy to the Agent.
8.3 Completion of a Utilisation Request for Swingline Loans
8.3.1 Each Utilisation Request for a Swingline Loan is irrevocable and
will not be regarded as having been duly completed unless:
(a) the proposed Utilisation Date is a New York Business Day
within the Availability Period for the Swingline Facility;
(b) the Swingline Loan is denominated in U.S. dollars;
(c) the amount of the Swingline Loan is an amount which is not
more than the Available Swingline Facility and is a minimum of
U.S. dollars ten million (USD 10,000,000) or, if less, the
Available Swingline Facility; and
(d) the proposed Interest Period is specified and:
(i) does not overrun the Termination Date; and
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(ii) is a period of not more than ten (10) New York Business
Days; and
(iii) ends on a New York Business Day.
8.3.2 Only one Swingline Loan may be requested in each Utilisation
Request, and only two Utilisation Requests may be made in respect
of Swingline Loans to be made on the same Business Day.
8.4 Swingline Lenders' participation
8.4.1 If the conditions set out in this Agreement have been met, each
Swingline Lender shall make its participation in each Swingline
Loan available through its Facility Office in New York City.
8.4.2 The Swingline Lenders will not be obliged to comply with paragraph
8.4.1 above if on the date of the Utilisation Request or on the
proposed Utilisation Date:
(a) an Event of Default in relation to that Borrower or an Event
of Default in relation to the Guarantor is continuing or would
result from the proposed Utilisation; or
(b) the Repeating Representations to be made by that Borrower or
the Guarantor are not true in all material respects.
8.4.3 The amount of each Swingline Lender's participation in each
Swingline Loan will be equal to the proportion borne by its
Available Swingline Commitment to the Available Swingline Facility
immediately prior to making the Swingline Loan, adjusted to take
account of any limit applying under Clause 8.5 (Relationship with
Facility A).
8.4.4 The Swingline Agent shall notify each Swingline Lender of the
amount of each Swingline Loan and its participation in that
Swingline Loan by the Specified Time.
8.5 Relationship with Facility A
8.5.1 This Clause 8.5 (Relationship with Facility A) applies when a
Swingline Loan is outstanding or is to be borrowed.
8.5.2 Facility A may be used by way of Swingline Loans. The Swingline
Facility is not independent of Facility A and is a sub-limit of
Facility A. A Swingline Lender shall be a Facility A Lender or an
Affiliate of a Facility A Lender.
8.5.3 Notwithstanding any other term of this Agreement a Lender is only
obliged to participate in a Facility A Loan or a Swingline Loan to
the extent that it would not result in the aggregate Base Currency
Amount of its participation and that of a Lender which is its
Affiliate in the Facility A Loans and Swingline Loans exceeding its
Overall Commitment.
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9. REPAYMENT AND PREPAYMENT OF SWINGLINE LOANS
9.1 Repayment
9.1.1 A Borrower shall repay each Swingline Loan on the last day of its
Interest Period.
9.1.2 If a Swingline Loan is not repaid in full on its due date, the
Swingline Agent shall (if requested to do so in writing by any
affected Swingline Lender) set a date (the "Loss Sharing Date") on
which payments shall be made between the Facility A Lenders to
re-distribute the unpaid amount between them. The Swingline Agent
shall give at least three (3) Business Days prior notice to each
affected Facility A Lender of the Loss Sharing Date and notify it
of the amounts to be paid or received by it.
9.1.3 On the Loss Sharing Date each Facility A Lender must pay to the
Swingline Agent its Proportion of the Unpaid Amount minus its (or
its Affiliate's) Unpaid Swingline Participation (if any). If this
produces a negative figure for a Facility A Lender no amount need
be paid by that Facility A Lender.
The "Proportion" of a Facility A Lender means the proportion borne
by:
(a) its Facility A Commitment (or, if the Total Commitments are
then zero, its Facility A Commitment immediately prior to
their reduction to zero) minus the Base Currency Amount of its
participation (or that of a Facility A Lender which is its
Affiliate) in any outstanding Facility A Loans (but ignoring
its (or its Affiliate's) participation in the unpaid Swingline
Loan); to
(b) the Total Commitments (or, if the Total Commitments are then
zero, the Total Commitments immediately prior to their
reduction to zero) minus any outstanding Facility A Loans (but
ignoring the unpaid Swingline Loan).
The "Unpaid Amount" means, in relation to a Swingline Loan, any
principal not repaid and/or any interest accrued but unpaid on
that Swingline Loan calculated from the Utilisation Date to the
Loss Sharing Date.
The "Unpaid Swingline Participation" of a Facility A Lender means
that part of the Unpaid Amount (if any) owed to that Facility A
Lender (or its Affiliate) (before any redistribution under this
Clause 9.1 (Repayment)).
9.1.4 Out of the funds received by the Swingline Agent pursuant to
paragraph9.1.3 the Swingline Agent shall pay to each Swingline
Lender an amount equal to the Shortfall (if any) of that Swingline
Lender where:
The "Shortfall" of a Swingline Lender is an amount equal to its
Unpaid Swingline Participation minus its (or its Affiliate's)
Proportion of the Unpaid Amount.
9.1.5 If the amount actually received by the Swingline Agent from the
Facility A Lenders is insufficient to pay the full amount of the
Shortfall of all Swingline Lenders then the amount actually
received will be distributed amongst the Swingline Lenders pro rata
to the Shortfall of each Swingline Lender.
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9.1.6
(a) On a payment under this Clause, the paying Facility A Lender
will be subrogated to the rights of the Swingline Lenders
which have shared in the payment received, which Swingline
Lenders agree that they will in that connection waive the
benefit of Article 1252 of the French Code Civil.
(b) If and to the extent a paying Facility A Lender is not able to
rely on its rights under paragraph 9.1.6(a) above, the
relevant Borrower shall be liable to the paying Facility A
Lender for a debt equal to the amount the paying Facility A
Lender has paid under this Clause.
(c) Any payment under this Clause does not reduce the obligations
in aggregate of any Obligor.
9.2 Voluntary Prepayment of Swingline Loans
9.2.1 A Borrower may prepay at any time the whole of a Swingline Loan.
9.2.2 Unless a contrary indication appears in this Agreement, any part of
the Swingline Facility which is prepaid may be reborrowed in
accordance with the terms of this Agreement.
9.3 Interest
9.3.1 Interest shall accrue on each Swingline Loan on each day of its
Interest Period at the Swingline Interest Rate.
9.3.2 The Swingline Agent shall promptly notify the Swingline Lenders and
the relevant Borrower of the determination of the Swingline
Interest Rate.
9.3.3 The relevant Borrower shall pay accrued interest on each Swingline
Loan made to it on the last day of its Interest Period.
9.4 Interest Period
Each Swingline Loan has one (1) Interest Period only.
9.5 Conditions of assignment or transfer
Notwithstanding any other term of this Agreement, each Facility A Lender
shall ensure that at all times its Overall Commitment is not less than:
(a) its Swingline Commitment; or
(b) if it does not have a Swingline Commitment, the Swingline
Commitment of a Swingline Lender which is its Affiliate.
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10. OPTIONAL CURRENCIES
10.1 Selection of currency
A Borrower (or the Company on behalf of a Borrower) shall select the
currency of a Loan in a Utilisation Request.
10.2 Unavailability of a currency
If before the Specified Time on any Quotation Day:
10.2.1 a Lender notifies the Agent that the Optional Currency requested
is not readily available to it in the amount required; or
10.2.2 a Lender notifies the Agent that compliance with its obligation to
participate in a Loan in the proposed Optional Currency would
contravene a law or regulation applicable to it,
the Agent will give notice to the relevant Borrower to that effect by the
Specified Time on that day. In this event, any Lender that gives notice
pursuant to this Clause 10.2 (Unavailability of a currency) will be
required to participate in the Loan in the Base Currency (in an amount
equal to that Lender's proportion of the Base Currency Amount) and its
participation will be treated as a separate Loan denominated in the Base
Currency during that Interest Period.
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SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
11. REPAYMENT
11.1 Each Borrower which has drawn a Loan shall repay that Loan on the last day
of its Interest Period.
11.2 Without prejudice to each Borrower's obligation under Clauses 11.1 above,
if one or more Facility A Loans are to be made available to a Borrower:
11.2.1 on the same day that a maturing Loan is due to be repaid by that
Borrower;
11.2.2 in the same currency as the maturing Loan (unless it arose as a
result of the operation of Clause 10.2 (Unavailability of a
currency)); and
11.2.3 in whole or in part for the purpose of refinancing the maturing
Loan,
the aggregate amount of the new Facility A Loans shall be treated
as if applied in or towards repayment of the maturing Loan so
that:
(a) if the amount of the maturing Loan exceeds the aggregate
amount of the new Facility A Loans:
(i) the relevant Borrower will only be required to pay an
amount in cash in the relevant currency equal to that
excess; and
(ii) each Lender's participation (if any) in the new
Facility A Loans shall be treated as having been made
available and applied by the Borrower in or towards
repayment of that Lender's participation (if any) in
the maturing Loan and that Lender will not be required
to make its participation in the new Facility A Loans
available in cash; and
(b) if the amount of the maturing Loan is equal to or less than
the aggregate amount of the new Facility A Loans:
(i) the relevant Borrower will not be required to make any
payment in cash; and
(ii) each Lender will be required to make its participation
in the new Facility A Loans available in cash only to
the extent that its participation (if any) in the new
Facility A Loans exceeds that Lender's participation
(if any) in the maturing Loan and the remainder of that
Lender's participation in the new Facility A Loans
shall be treated as having been made available and
applied by the Borrower in or towards repayment of that
Lender's participation in the maturing Loan.
11.3 At any time when a Lender becomes a Defaulting Lender, the maturity date
of each of the participations of that Lender in the Facility A Loans then
outstanding will be automatically extended to the Termination Date and
will be treated as separate Facility A Loans (the "Separate Loans")
denominated in the currency in which the relevant participations are
outstanding.
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11.4 A Borrower to whom a Separate Loan is outstanding may prepay that Loan by
giving four (4) Business Days' prior notice to the Agent. The Agent will
forward a copy of a prepayment notice received in accordance with this
Clause 11.4 to the Defaulting Lender concerned as soon as practicable on
receipt.
11.5 Interest in respect of a Separate Loan will accrue for successive Interest
Periods selected by the Borrower by the time and date specified by the
Agent (acting reasonably) and will be payable by that Borrower to the
Defaulting Lender on the last day of each Interest Period of that Loan.
11.6 The terms of this Agreement relating to Facility A Loans generally shall
continue to apply to Separate Loans other than to the extent inconsistent
with Clauses 11.3 to 11.5 above, in which case those Clauses shall prevail
in respect of any Separate Loan.
12. PREPAYMENT AND CANCELLATION
12.1 Illegality
If it becomes unlawful in any applicable jurisdiction for a Lender to
perform any of its obligations as contemplated by this Agreement or to
fund or maintain its participation in any Utilisation:
(a) that Lender shall promptly notify the Agent upon becoming aware of
that event;
(b) upon the Agent notifying the Company (provided that such notice
gives full details of the cause and the nature of the illegality
and its impact on that Lender and provided also that such
illegality is both certain and definitive and not one that only
applies if that Lender fails to take certain steps which, acting
reasonably, it is in a position to take), each Commitment of that
Lender to which the illegality relates will be immediately
cancelled; and
(c) each Borrower shall repay that Lender's participation in the
Utilisations made to that Borrower on the last day of the Interest
Period for each Utilisation occurring after the Agent has notified
the Company or, if earlier, the date specified by the Lender in
the notice delivered to the Agent (being no earlier than the last
day of any applicable grace period permitted by law).
12.2 Change of control
12.2.1 Hostile changes of control
The Agent (acting on the instruction of the Majority Lenders) may,
within thirty (30) days of the date upon which a hostile change of
control of the Company becomes legally effective, by notice to the
Company cancel the Total Commitments and declare all outstanding
Utilisations, together with accrued interest and all other amounts
outstanding under this Agreement (including amounts outstanding or
in respect of any Letter of Credit) or accrued under the Finance
Documents, due and payable on the date ninety (90) days after the
date of the hostile change of control becoming legally effective
or, if later, on the date specified in the notice. Any repayment
made pursuant to this Clause 12.2 (Change of control) shall be
made without penalty, cost or premium subject to Break Costs.
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12.2.2 Amicable changes of control
If within thirty (30) days of the date on which an amicable change
of control becomes effective, any two (2) specified rating
agencies reduce the long-term counterparty credit rating (or
equivalent) published by them in respect of the Company by more
than two (2) notches (as compared with the ratings as immediately
before such change of control) the Agent may (and, if so
instructed by the Majority Lenders, shall):
(a) cancel the Total Commitments whereupon they shall immediately
be cancelled;
(b) declare that the Interest Period of any Loan having an
Interest Period greater than six (6) months is reduced to six
(6) months; and
(c) declare that each Letter of Credit is immediately due and
payable whereupon each Borrower that requested the issue of a
Letter of Credit shall within two (2) Business Days repay it.
12.2.3 Definitions
For the purposes of Clauses 12.2.1 (Hostile changes of control)
and 12.2.2 (Amicable changes of control):
(a) there is a "change of control" if the Company (or any company
into which the Company is merged) is controlled, directly or
indirectly, by a person who is not a member of the Current
Control Group or a successor to or company controlled by one
or more members of the Current Control Group provided that no
such change of control of the Company shall be taken into
account if immediately after such change of control the other
members of the Current Control Group acting separately or in
concert, continue to control the Company;
(b) a "hostile change of control" is a change of control in
respect of which the decision of the Company's Conseil de
Surveillance on the last occasion on which it discussed the
change of control prior to its taking place was that it did
not recommend or approve of the change of control;
(c) an "amicable change of control" is a change of control in
respect of which the decision of the Company's Conseil de
Surveillance on the last occasion on which it discussed the
change of control prior to its taking place was that it
recommended or approved the change of control;
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(d) if the Company'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
Current Control Group, the Conseil de Surveillance 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 Company which do not involve
the Current Control Group, the Conseil de Surveillance
will be deemed to have stated that it does not
recommend that change in control;
(e) "Current Control Group" means (i) AXA Assurances IARD
Mutuelle and AXA Assurances Vie Mutuelle and (ii) any other
entity incorporated in France and created at the initiative
of (A) any member of the Current Control Group and (B) the
persons who, acting separately or in concert, directly or
indirectly control or are controlled by the Company on the
date of the Agreement;
(f) "control" has the meaning given in article L.233-3 of the
French Code de Commerce, as of the date of this Agreement;
and
(g) the "specified rating agencies" are Standard & Poor's Rating
Services, ▇▇▇▇▇'▇ Investors Service, Inc and Fitch Ratings
Ltd.
12.3 Voluntary cancellation
12.3.1 The Company may, if it gives the Agent not less than four (4)
Business Days' irrevocable prior notice, cancel the whole or any
part of the Available Facility A which is an integral multiple of
one million euro (EUR 1,000,000) and at least twenty million euro
(EUR 20,000,000).
12.3.2 Any cancellation under this Clause 12.3 (Voluntary cancellation)
shall reduce the Commitments of the Lenders rateably under the
relevant Facility.
12.4 Voluntary Prepayment
The Borrower to which a Utilisation has been made may, if it gives the
Agent not less than four (4) Business Days' irrevocable prior notice:
(a) prepay the whole or any part of a Facility A Loan (but if in
part, by an amount that reduces the Base Currency Amount of
that Loan by an amount which is an integral multiple of one
million euro (EUR 1,000,000) and at least twenty million euro
(EUR 20,000,000)); and/or
(b) prepay the whole or any part of a Letter of Credit (but if in
part, by an amount that reduces the amount of that Letter of
Credit by an amount which is an integral multiple of one
million U.S. dollars (USD 1,000,000) and at least five
million U.S. dollars (USD 5,000,000).
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12.5 Right of replacement or repayment and cancellation in relation to a single
Lender
12.5.1 If:
(a) any sum payable to any Lender by an Obligor is required to be
increased under paragraph 17.2.3 of Clause 17.2 (Tax
gross-up); or
(b) any Lender claims indemnification from the Company under
Clause 17.3 (Tax indemnity) or Clause 18.1 (Increased costs);
or
(c) any Lender notifies the Agent of its Additional Cost Rate
under paragraph 3 of Schedule 4 (Mandatory Cost Formulae); or
(d) any interest accrued by a French Obligor under this Agreement
is not deductible from that French Obligor's taxable income
by reason of that interest being (i) accrued or paid to a
Lender incorporated, domiciled, established, or acting
through a Facility Office situated in a Non-Cooperative
Jurisdiction or (ii) paid to an account or financial
intermediary situated in a Non-Cooperative Jurisdiction,
the Company may, whilst the circumstance giving rise to the
requirement for that increase or indemnification continues,
give the Agent notice of cancellation of each Commitment of that
Lender and its intention to procure the repayment of that
Lender's participation and that of a Lender which is its
Affiliate in the Utilisations or give the Agent notice of its
intention to replace that Lender in accordance with paragraph
12.5.4 below.
12.5.2 On receipt of a notice of cancellation referred to in paragraph
12.5.1 above, each Commitment of that Lender shall immediately be
reduced to zero.
12.5.3 On the last day of each Interest Period which ends after the
Company has given notice of cancellation under paragraph 12.5.1
above (or, if earlier, the date specified by the Company in that
notice), each Borrower shall repay that Lender's participation and
that of a Lender which is its Affiliate in each Utilisation made
by it which is then outstanding.
12.5.4 The Company may, in the circumstances set out in paragraph 12.5.1
above, on ten (10) Business Days' prior notice to the Agent and
that Lender, replace that Lender by requiring that Lender to (and,
to the extent permitted by law, that Lender shall) transfer
pursuant to Clause 33 (Changes to the Lenders) all (and not part
only) of its rights and obligations under this Agreement to a New
Lender selected by the Company which confirms its willingness to
assume and does assume all the obligations of the transferring
Lender in accordance with Clause 33 (Changes to the Lenders) for a
purchase price in cash or other cash payment payable at the time
of the transfer equal to the outstanding principal amount of such
Lender's participation in the outstanding Loans and all accrued
interest (to the extent that the Agent has not given a
notification under Clause 35 (Pro rata interest settlement)),
Break Costs and other amounts payable in relation thereto under
the Finance Documents.
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12.5.5 The replacement of a Lender pursuant to paragraph 12.5.4 above
shall be subject to the following conditions:
(a) the Company shall have no right to replace the Agent;
(b) neither the Agent nor any Lender shall have any obligation to
find a replacement Lender; and
(c) in no event shall the Lender replaced under paragraph 12.5.4
above be required to pay or surrender any of the fees
received by such Lender pursuant to the Finance Documents.
12.6 Mandatory prepayment and cancellation in relation to a single Lender
If it becomes unlawful for a Borrower to perform any of its obligations to
any Lender under paragraph 17.2.3 of Clause 17.2 (Tax gross-up) or under
an equivalent provision of any Finance Document:
12.6.1 the Company shall promptly notify the Agent upon becoming aware of
that event;
12.6.2 upon the Agent notifying that Lender, each of its Commitments will
be immediately reduced to zero; and
12.6.3 that Borrower shall repay that Lender's participation and that of
a Lender which is its Affiliate in each Utilisation made by it
which is then outstanding on whichever is the later of the date
specified by that Lender in a notice delivered to the Agent (being
no earlier than the last day of any applicable grace period
permitted by law) and the date which is thirty (30) days after the
Agent's notification referred to in paragraph 12.6.2 above.
12.7 Restrictions
12.7.1 Any notice of cancellation or prepayment given by any Party under
this Clause 12 shall be irrevocable and, unless a contrary
indication appears in this Agreement, shall specify the date or
dates upon which the relevant cancellation or prepayment is to be
made and the amount of that cancellation or prepayment.
12.7.2 Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to any Break
Costs, without premium or penalty.
12.7.3 Unless a contrary indication appears in this Agreement, any part
of Facility A which is prepaid may be reborrowed in accordance
with the terms of this Agreement.
12.7.4 The Borrowers shall not repay or prepay all or any part of the
Utilisations or cancel all or any part of the Commitments except
at the times and in the manner expressly provided for in this
Agreement.
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12.7.5 No amount of the Total Commitments cancelled under this Agreement
may be subsequently reinstated.
12.7.6 If the Agent receives a notice under this Clause 12, it shall
promptly forward a copy of that notice to either the Company or
the affected Lender, as appropriate.
12.8 Right of cancellation in relation to a Defaulting Lender
12.8.1 If any Lender becomes a Defaulting Lender, the Company may, at any
time whilst the Lender continues to be a Defaulting Lender, give
the Agent not less than ten (10) Business Days' notice of
cancellation of each Available Commitment of that Lender.
12.8.2 On the notice referred to in paragraph 12.8.1 above becoming
effective, each Available Commitment of the Defaulting Lender
shall immediately be reduced to zero.
12.8.3 The Agent shall as soon as practicable after receipt of a notice
referred to in paragraph 12.8.1 above, notify all the Lenders.
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SECTION 5
COSTS OF UTILISATION
13. INTEREST
13.1 Calculation of interest
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
(a) Margin;
(b) LIBOR or, in relation to any Loan in euro, EURIBOR; and
(c) Mandatory Cost, if any.
13.2 Payment of interest
The Borrower to which a Loan has been made shall pay accrued interest on
that Loan on the last day of its Interest Period (and, if the Interest
Period is longer than six Months, on the dates falling at six-monthly
intervals after the first day of the Interest Period).
13.3 Default interest
13.3.1 If an Obligor fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue to the
fullest extent permitted by law on the overdue amount from the due
date up to the date of actual payment (both before and after
judgment) at a rate which, subject to paragraph 13.3.2 below, is
one per cent (1%) higher than the rate which would have been
payable if the overdue amount had, during the period of
non-payment, constituted a Loan in the currency of the overdue
amount for successive Interest Periods, each of a duration
selected by the Agent (acting reasonably). Any interest accruing
under this Clause 13.3 shall be immediately payable by the Obligor
on demand by the Agent.
13.3.2 If any overdue amount consists of all or part of a Loan which
became due on a day which was not the last day of an Interest
Period relating to that Loan:
(a) the first Interest Period for that overdue amount shall have
a duration equal to the unexpired portion of the current
Interest Period relating to that Loan; and
(b) the rate of interest applying to the overdue amount during
that first Interest Period shall be one per cent (1%) higher
than the rate which would have applied if the overdue amount
had not become due.
13.3.3 Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount only if, within the meaning of
Article 1154 of the French Code Civil, such interest is due for a
period of at least one (1) year, but will remain immediately due
and payable.
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13.4 Notification of rates of interest
The Agent shall promptly notify the Lenders and the relevant Borrower of the
determination of a rate of interest under this Agreement.
13.5 Effective Global Rate (Taux Effectif Global)
For the purposes of Articles L.313-1 et seq. R313-1 and R313-2 of the Code
de la Consommation (if applicable), the Parties acknowledge that by virtue
of certain characteristics of the Facilities (and in particular the
variable interest rate applicable to Loans and the Borrower's right to
select the currency and the duration of the Interest Period for each Loan)
the taux effectif global cannot be calculated at the date of this
Agreement. However, the Original Borrowers acknowledge that they have
received from the Agent a letter containing an indicative calculation of
the taux effectif global, based on figured examples calculated on
assumptions as to the taux de periode and duree de periode set out in the
letter. The Parties acknowledge that that letter forms part of this
Agreement.
14. INTEREST PERIODS
14.1 Selection of Interest Periods
14.1.1 A Borrower may select an Interest Period for a Loan in the
Utilisation Request for that Loan.
14.1.2 Subject to this Clause 14 (Interest Periods), a Borrower may
select an Interest Period of one (1), two (2), three (3) or six
(6) Months or any other period agreed between the Company and the
Agent (acting on the instructions of all the Lenders).
14.1.3 An Interest Period for a Facility A Loan or a Swingline Loan shall
not extend beyond the Termination Date.
14.1.4 A Loan has one (1) Interest Period only.
14.2 Non-Business Days
If an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period will instead end on the next Business Day in
that calendar month (if there is one) or the preceding Business Day (if
there is not).
15. CHANGES TO THE CALCULATION OF INTEREST
15.1 Absence of quotations
Subject to Clause 15.2 (Market disruption), if LIBOR or, if applicable,
EURIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does not supply a quotation by noon (12.00 p.m.) on the
Quotation Day, the applicable LIBOR or EURIBOR shall be determined on the
basis of the quotations of the remaining Reference Banks.
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15.2 Market disruption
15.2.1 If a Market Disruption Event occurs in relation to a Loan for any
Interest Period, then the relevant Borrower may withdraw its
Utilisation Request by notice delivered to the Agent no later than
5.00 p.m. on the Business Day preceding the Utilisation Date
subject to any Break Costs but otherwise without premium or
penalty. If the relevant Borrower does not so notify the Agent,
then the rate of interest on each Lender's share of that Loan for
the Interest Period shall be the rate per annum which is the sum
of:
(a) the Margin;
(b) the rate notified to the Agent by that Lender as soon as
practicable and in any event before interest is due to be
paid in respect of that Interest Period, to be that which
expresses as a percentage rate per annum the cost to that
Lender of funding its participation in that Loan from
whatever source it may reasonably select;
(c) the Mandatory Cost, if any, applicable to that Lender's
participation in the Loan.
15.2.2 In this Agreement "Market Disruption Event" means:
(a) at or about noon on the Quotation Day for the relevant
Interest Period the Screen Rate is not available and none or
only one of the Reference Banks supplies a rate to the Agent
to determine LIBOR or, if applicable, EURIBOR for the
relevant currency and Interest Period; or
(b) before close of business in Paris on the Quotation Day for
the relevant Interest Period, the Agent receives
notifications from a Lender or Lenders (whose aggregate
participation in a Loan exceeds fifty per cent (50%) of that
Loan) that the cost to it or to them of obtaining matching
deposits in the Relevant Interbank Market would be in excess
of LIBOR or, if applicable, EURIBOR.
15.2.3 Alternative basis of interest or funding
(a) If a Market Disruption Event occurs and the Agent or the
Company so requires, the Agent and the Company shall enter
into negotiations (for a period of not more than thirty (30)
days) with a view to agreeing a substitute basis for
determining the rate of interest.
(b) Any alternative basis agreed pursuant to paragraph 15.2.1
above shall, with the prior consent of all the Lenders and
the Company, be binding on all Parties.
15.2.4 The Agent shall promptly, and in any event no later than 10.00
a.m. Paris time on the Business Day following the relevant
Quotation Day, notify AXA and the relevant Borrower of the
occurrence of a Market Disruption Event.
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15.3 Break Costs
15.3.1 Each Borrower shall, within three (3) Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of a Loan or Unpaid Sum being paid
by that Borrower on a day other than the last day of an Interest
Period for that Loan or Unpaid Sum.
15.3.2 Each Lender shall, as soon as reasonably practicable after a
demand by the Agent, provide a certificate confirming the amount
of its Break Costs for any Interest Period in which they accrue.
16. FEES
16.1 Non-Utilisation Fee
The Company shall pay to the Agent (for the account of each Lender) a
non-utilisation fee in the amounts and at the times agreed in the
Commercial Terms Side Letter.
16.2 Arrangement and participation fees
The Company shall pay to the Arrangers an arrangement fee and a
participation fee in the amounts and at the times agreed in the Mandate
Letter.
16.3 Agency fee
The Company shall pay to the Agent (for its own account) an agency fee in
the amount and at the times agreed in a separate agreement between the
Agent and the Company.
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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
17. TAX GROSS-UP AND INDEMNITIES
17.1 Definitions
17.1.1 In this Agreement:
"Protected Party" means a Finance Party which is or will be
subject to any liability, or required to make any payment, for or
on account of Tax in relation to a sum received or receivable (or
any sum deemed for the purposes of Tax to be received or
receivable) under a Finance Document.
"Qualifying Lender" means a Lender which:
(a) with respect to payments from Obligors incorporated in
France, has its Facility Office in France or fulfils the
conditions imposed by French law in order for a payment not
to be subject to any Tax Deduction or is a Treaty Lender in
respect of France;
(b) with respect to payments made by or on behalf of a U.S.
Borrower:
(i) is a U.S. Person; or
(ii) is entitled to receive payments in respect of a
Utilisation without deduction or withholding of any
United States federal income tax either as a result of
such payments being effectively connected with trade or
business within the United States of America or under a
portfolio interest exemption; or
(iii) is a Treaty Lender in respect of the United States of
America;
(c) with respect to payments from Obligors incorporated in the
United Kingdom, is beneficially entitled to interest payable
to it in respect of an advance under a Finance Document and
is:
(i) a Lender:
(A) which is a bank (as defined for the purpose of
section 349 of the Taxes Act) making an advance
under a Finance Document; or
(B) in respect of an advance made under a Finance
Document by a person that was a bank (as defined
for the purpose of section 349 of the Taxes Act)
at the time that that advance was made,
and which is within the charge to United Kingdom
corporation tax as respects any payments of interest
made in respect of that advance; or
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(ii) a Treaty Lender in respect of the United Kingdom; and
(d) with respect to payments from Obligors incorporated in
another jurisdiction, is a Treaty Lender in respect of that
jurisdiction.
"Tax Credit" means a credit against, relief or remission for, or
repayment of any Tax.
"Tax Deduction" means a deduction or withholding for or on account
of Tax from a payment under a Finance Document.
"Tax Payment" means either an increased payment made by an Obligor
to a Finance Party under Clause 17.2 (Tax gross-up) or a payment
under Clause 17.3 (Tax indemnity).
"Treaty Lender" means in respect of a jurisdiction, a Lender which
is entitled under a double taxation agreement (subject to the
completion of any necessary procedural formalities) to receive
payments of interest from that jurisdiction without a Tax
Deduction.
17.1.2 Unless a contrary indication appears, in this Clause 17, a
reference to "determines" or "determined" means a determination
made in the absolute discretion of the person making the
determination.
17.2 Tax gross-up
17.2.1 Each Obligor shall make all payments to be made by it under the
Finance Documents without any Tax Deduction, unless a Tax
Deduction is required by law.
17.2.2 Each Obligor shall promptly upon becoming aware that it must make
a Tax Deduction (or that there is any change in the rate or the
basis of a Tax Deduction) notify the Agent accordingly. Similarly,
a Lender shall notify the Agent on becoming so aware in respect of
a payment payable to that Lender. If the Agent receives such
notification from a Lender it shall notify the Company and that
Obligor.
17.2.3 If a Tax Deduction is required by law to be made by an Obligor,
the amount of the payment due from that Obligor shall be increased
to an amount which (after making any Tax Deduction) leaves an
amount equal to the payment which would have been due if no Tax
Deduction had been required.
17.2.4 An Obligor is not required to make an increased payment to a
Lender under paragraph 17.2.3 above for a Tax Deduction in respect
of Tax imposed by its jurisdiction of incorporation (or, with
respect to AXA Bermuda, the United States) on a payment of
interest, if on the date on which the payment falls due:
(a) the payment could have been made to the relevant Lender
without a Tax Deduction if it had been a Qualifying Lender
with respect to the payment in question, but on that date
that Lender is not or has ceased to be a Qualifying Lender
other than as a result of any change after the date it became
a Lender under this Agreement in (or in the interpretation,
administration, or application of) any law or double taxation
agreement, or any published practice or concession of any
relevant taxing authority; or
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(b) the relevant Lender is a Treaty Lender and the Obligor making
the payment is able to demonstrate that the payment could
have been made to the Lender without the Tax Deduction had
that Lender complied with its obligations under paragraph
17.2.7,
provided that the exclusion for changes after the date a Lender
became a Lender under this Agreement in paragraph 17.2.4(a) above
shall not apply in respect of any Tax Deduction on account of Tax
imposed by France on a payment made to a Lender if such Tax
Deduction is imposed solely on account of (x) this Lender being
incorporated, domiciled, established, or acting through a Facility
Office situated in a Non-Cooperative Jurisdiction or (y) this
payment being made to an account or financial intermediary
situated in a Non-Cooperative Jurisdiction.
17.2.5 If an Obligor is required to make a Tax Deduction, that Obligor
shall make that Tax Deduction and any payment required in
connection with that Tax Deduction within the time allowed and in
the minimum amount required by law.
17.2.6 Within thirty days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Obligor making
that Tax Deduction shall deliver to the Agent for the Finance
Party entitled to the payment evidence reasonably satisfactory to
that Finance Party that the Tax Deduction has been made or (as
applicable) any appropriate payment paid to the relevant taxing
authority.
17.2.7 A Treaty Lender and each Obligor which makes a payment to which
that Treaty Lender is entitled shall co-operate in completing any
procedural formalities necessary for (i) that Obligor to obtain
authorisation to make that payment without a Tax Deduction or (ii)
for the Obligor to obtain a reimbursement for a Tax Deduction from
the relevant taxing authority. With respect to payments made from
or on behalf of a Borrower which is a U.S. Person, each Lender
shall supply to that Borrower's paying agent a properly completed
and executed United States Internal Revenue Service Form W-8BEN (a
"Form W-8BEN") and will supply additional Form W-8BENs (or
appropriate successor forms) within thirty (30) days of written
request by that Borrower.
17.2.8 Any Lender which is not incorporated in France and which acts
through a Facility Office in France shall, for so long as such
certificate is required to be delivered to French Obligors in
order to prevent any Tax Deductions in respect of payments by
French Obligors to such Lender:
(a) as soon as reasonably practicable after the date on which it
becomes a Party to this Agreement, but before any payment of
interest is due, deliver to the French Obligors through the
Agent a tax certificate duly issued by the French Tax
authorities evidencing such Lender's place of taxation in
France for French Tax purposes, and
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(b) deliver a renewed tax certificate periodically in accordance
with French Tax law.
17.3 Tax indemnity
17.3.1 The Company shall (within three Business Days of demand by the
Agent) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines will be or
has been (directly or indirectly) suffered for or on account of
Tax by that Protected Party in respect of a payment under a
Finance Document.
17.3.2 Paragraph 17.3.1 above shall not apply:
(a) with respect to any Tax assessed on a Finance Party:
(i) under the law of the jurisdiction in which that Finance
Party is incorporated or, if different, the
jurisdiction (or jurisdictions) in which that Finance
Party is treated as resident for tax purposes; or
(ii) under the law of the jurisdiction in which that Finance
Party's Facility Office is located in respect of
amounts received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the
net income received or receivable (but not any sum deemed to
be received or receivable) by that Finance Party, including
any branch profits or similar Tax in effect as of the
Signing Date; or
(b) to the extent a loss, liability or cost:
(i) is compensated for by an increased payment under
Clause 17.2 (Tax gross-up); or
(ii) would have been compensated for by an increased payment
under Clause 17.2 (Tax gross-up) but was not so
compensated solely because one of the exclusions in
paragraph 17.2.4 of Clause 17.2 (Tax gross-up) applied.
17.3.3 A Protected Party making, or intending to make a claim under
paragraph 17.3.1 above shall promptly notify the Agent of the
event which will give, or has given, rise to the claim, following
which the Agent shall notify the Company.
17.3.4 A Protected Party shall, on receiving a payment from an Obligor
under this Clause 17.3, notify the Agent.
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17.4 Tax Credit
If an Obligor makes a Tax Payment and the relevant Finance Party
determines that:
17.4.1 a Tax Credit is attributable to that Tax Payment; and
17.4.2 that Finance Party has obtained, utilised and retained that Tax
Credit,
the Finance Party shall pay an amount to the Obligor which that
Finance Party determines will leave it (after that payment) in the
same after-Tax position as it would have been in had the Tax
Payment not been required to be made by the Obligor.
17.5 Lender status confirmation
17.5.1 Each Lender which becomes a Party to this Agreement after the date
of this Agreement shall indicate, in the Transfer Agreement which
it executes on becoming a Party, and for the benefit of the Agent
and without liability to any Obligor, which of the following
categories it falls in:
(a) not a Qualifying Lender;
(b) a Qualifying Lender (other than a Treaty Lender); or
(c) a Treaty Lender.
17.5.2 Such Lender shall also indicate, in the Transfer Agreement which
it executes on becoming a Party, whether it is incorporated,
domiciled, established, or acting through a Facility Office
situated in a Non-Cooperative Jurisdiction.
17.5.3 If a New Lender fails to indicate its status in accordance with
this Clause 17.5 then such New Lender shall be treated for the
purposes of this Agreement (including by each Obligor) as if it
were not a Qualifying Lender until such time as it notifies the
Agent which category applies (and the Agent, upon receipt of such
notification, shall inform the Company). For the avoidance of
doubt, a Transfer Agreement shall not be invalidated by any
failure of a Lender to comply with this Clause 17.5.
17.6 Stamp taxes
The Company shall pay and, within three (3) Business Days of demand,
indemnify each Finance Party against any duly itemised cost, loss or
liability that Finance Party incurs in relation to all stamp duty,
registration and other similar Taxes payable in respect of any Finance
Document.
17.7 Value added tax
17.7.1 All consideration expressed to be payable under a Finance Document
by any Party to a Finance Party shall be deemed to be exclusive of
any VAT. If VAT is chargeable on any supply made by any Finance
Party to any other Party in connection with a Finance Document,
that Party shall pay to the Finance Party (in addition to and at
the same time as paying the consideration) an amount equal to the
amount of the VAT.
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17.7.2 Where a Finance Document requires any Party to reimburse a Finance
Party for any costs or expenses, that Party shall also at the same
time pay and indemnify the Finance Party against all VAT incurred
by the Finance Party in respect of the costs or expenses to the
extent that the Finance Party reasonably determines that it is not
entitled to credit or repayment of the VAT.
18. INCREASED COSTS
18.1 Increased costs
18.1.1 Subject to Clause 18.3 (Exceptions) the Company shall, within
three (3) Business Days of a demand by the Agent, pay for the
account of a Finance Party the amount of any Increased Costs
incurred by that Finance Party or any of its Affiliates as a
result of (i) the introduction of or any change in (or in the
interpretation, administration or application of) any law or
regulation or (ii) compliance with any law or regulation made
after the date of this Agreement ((i) or (ii) is in this Clause 18
(Increased Costs) called a "change of law").
18.1.2 In this Agreement "Increased Costs" means:
(a) a reduction in the rate of return from the Facility or on a
Finance Party's (or its Affiliate's) overall capital;
(b) an additional or increased cost; or
(c) a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance
Party having entered into its Commitment or funding or performing
its obligations under any Finance Document.
18.2 Increased cost claims
18.2.1 A Finance Party intending to make a claim pursuant to Clause 18.1
(Increased costs) shall as soon as practicable notify the Agent of
the event giving rise to the claim, following which the Agent
shall promptly notify the Company.
18.2.2 Each Finance Party shall, as soon as practicable after a demand by
the Agent, provide a certificate confirming the amount and, to the
extent reasonably practicable, the basis of calculation, of its
Increased Costs.
18.3 Exceptions
Clause 18.1 (Increased costs) does not apply to the extent any Increased
Cost is:
18.3.1 attributable to a Tax Deduction required by law to be made by an
Obligor;
18.3.2 compensated for by Clause 17.3 (Tax indemnity) (or would have been
compensated for under Clause 17.3 (Tax indemnity) but was not so
compensated solely because one of the exclusions in paragraph
17.3.2 of Clause 17.3 (Tax indemnity) applied);
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18.3.3 compensated for by the payment of the Mandatory Cost;
18.3.4 attributable to the breach by the relevant Finance Party or its
Affiliates of any law or regulation;
18.3.5 attributable to the implementation or application of or compliance
with the "International Convergence of Capital Measurement and
Capital Standards, a Revised Framework" published by the Basel
Committee on Banking Supervision in June 2004 in the form existing
on the date of this Agreement ("Basel II") or any other law or
regulation which implements Basel II (whether such implementation,
application or compliance is by a government, regulator, Finance
Party or any of its Affiliates); or
18.3.6 in excess of that which would as at the same date be suffered by
all institutions which are of the same type as the Finance Party
making the claim and are regulated by the same regulatory
authorities.
19. OTHER INDEMNITIES
19.1 Currency indemnity
19.1.1 If any sum due from an Obligor under the Finance Documents (a
"Sum"), or any order, judgment or award given or made in relation
to a Sum, has to be converted from the currency (the "First
Currency") in which that Sum is payable into another currency (the
"Second Currency") for the purpose of:
(a) making or filing a claim or proof against that Obligor;
(b) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within three (3)
Business Days of demand, indemnify to the extent permitted by law
each Finance Party to whom that Sum is due against any reasonable
and duly itemised cost, loss or liability arising out of or as a
result of the conversion including any discrepancy between (A) the
rate of exchange used to convert that Sum from the First Currency
into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.
19.1.2 Each Obligor waives any right it may have in any jurisdiction to
pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be
payable.
19.2 Other indemnities
The Company shall (or shall procure that an Obligor will), within three
(3) Business Days of demand, indemnify each Finance Party against any
reasonable and duly itemised cost, loss or liability incurred by that
Finance Party as a result of:
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(a) the occurrence of any Event of Default or Special Early
Termination Event;
(b) a failure by an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any
cost, loss or liability arising as a result of Clause 39
(Sharing among the Finance Parties);
(c) funding, or making arrangements to fund, its participation in
a Utilisation requested by a Borrower in a Utilisation
Request but not made by reason of the operation of any one or
more of the provisions of this Agreement (other than by
reason of default or negligence by that Finance Party alone);
(d) a Utilisation (or part of a Utilisation) not being prepaid in
accordance with a notice of prepayment given by a Borrower or
the Company; or
(e) the duration of an Interest Period having been reduced in
accordance with paragraph 12.2.2(b) or paragraph 32.2.1(a).
19.3 Indemnity to the Agent
The Company shall as soon as reasonably possible indemnify the Agent
against any reasonable and duly itemised cost, loss or liability incurred
by the Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is an
Event of Default or a Special Early Termination Event; or
(b) acting or relying on any notice, request or instruction which
it reasonably believes to be genuine, correct and
appropriately authorised.
20. MITIGATION BY THE LENDERS
20.1 Mitigation
20.1.1 Each Finance Party shall as soon as reasonably possible, in
consultation with the Company, take all reasonable steps (which
may include transferring its rights and obligations under the
Finance Documents to an Affiliate of such Finance Party, subject
in any event to inter alia satisfaction of all required internal
approvals and internal procedures of such Affiliate and compliance
with all applicable laws and regulations) to mitigate any
circumstances which arise and which would result in any Facility
ceasing to be available or any amount becoming payable under or
pursuant to, or cancelled pursuant to, any of Clause 12.1
(Illegality), Clause 17 (Tax gross-up and indemnities), Clause 18
(Increased costs), Clause 12.6 (Mandatory prepayment and
cancellation in relation to a single Lender) or paragraph 3 of
Schedule 4 (Mandatory Cost Formulae), or if any interest accrued
by a French Obligor under this Agreement is not deductible from
that French Obligor's taxable income by reason of that interest
being (i) accrued or paid to a Lender incorporated, domiciled,
established, or acting through a Facility Office situated in a
Non-Cooperative Jurisdiction or (ii) paid to an account or
financial intermediary situated in a Non-Cooperative Jurisdiction.
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20.1.2 Paragraph 20.1.1 above does not in any way limit the obligations
of any Obligor under the Finance Documents.
20.2 Limitation of liability
20.2.1 The Company shall indemnify each Finance Party for all duly
itemised costs and expenses reasonably incurred by that Finance
Party as a result of steps taken by it under Clause 20.1
(Mitigation).
20.2.2 A Finance Party is not obliged to take any steps under Clause 20.1
(Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to it.
21. COSTS AND EXPENSES
21.1 Transaction expenses
The Company shall promptly and on demand reimburse:
21.1.1 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 advisers up to the amount specified in the Mandate Letter
together with any value added tax thereon (unless such value added
tax is recoverable by the payee as a result of submitting to the
relevant tax authorities its next relevant value added tax
return)), which may be incurred by them in connection with (i) the
preparation, negotiation, printing and execution of this
Agreement; any other documents referred to in this Agreement; and
any other Finance Documents executed after the date of this
Agreement, and (ii) the satisfaction of the conditions precedent
under Clause 4.1 (Initial Conditions Precedent); and
21.1.2 the Agent and the Lenders, on first demand by the Agent (or within
three (3) Business Days in the case of paragraph 21.1.2(b) below),
for all reasonable and duly itemised costs and expenses (including
the reasonable fees and expenses of legal or other advisors)
together with value added taxes payable thereon (unless such value
added tax is recoverable by the payee as a result of submitting to
the relevant tax authorities its next relevant value added tax
return), incurred by the Agent or any Lender:
(a) for the purposes of any amendment of this Agreement or as a
result of a waiver by the Lenders of any of their rights
hereunder, in either case at the request of any Obligor; and
(b) in the preservation of any of its rights following a failure
by any Obligor 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 any Obligor.
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21.2 Amendment costs
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 40.10 (Change of currency), the
Company shall, within three (3) Business Days of demand, reimburse the
Agent for the amount of all reasonable and duly itemised costs and
expenses (including legal fees) reasonably incurred by the Agent in
responding to, evaluating, negotiating or complying with that request or
requirement.
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SECTION 7
GUARANTEE
22. GUARANTEE
22.1 Scope of Guarantee (the "Guarantee")
The Guarantor irrevocably and unconditionally:
(a) guarantees as a caution solidaire to each Finance Party the
punctual performance by each Borrower other than the Company (the
"Guaranteed Borrowers") of their respective payment and repayment
obligations as Borrowers under this Agreement; and
(b) undertakes with each Finance Party that if and whenever any of the
Guaranteed Borrowers does not pay any amount (including principal,
interest, fees and any other accessory claim of any nature
whatsoever) when due under or in connection with this Agreement
(including following acceleration pursuant to Clause 31.6
(Acceleration and Cancellation) hereof), the Guarantor, acting as a
caution solidaire shall pay that amount within a period of five (5)
days of receipt of a notice claiming payment of that amount duly
signed on behalf of the relevant Finance Party by the Agent.
22.2 Further guarantee provisions
(a) The obligations of the Guarantor under Clause 22.1 (Scope of
Guarantee) will remain in full force and effect until all amounts
which may be or become payable by any Guaranteed Borrower under
this Agreement have been irrevocably paid in full or, if earlier,
upon release from its obligations as a guarantor by the Finance
Parties.
(b) Without prejudice to the effect of any release of debt falling
within article 1287 of the French Code Civil, the Guarantor shall
not benefit from any release of debt which a Guaranteed Borrower
may obtain in the course of proceedings for its reorganisation,
safeguard, liquidation, dissolution, winding-up or the composition
or readjustment of its debts.
22.3 Undertakings
The Guarantor irrevocably and expressly:
(a) undertakes not to exercise any rights which it may have under
article 2298 (benefice de discussion) or article 2303 (benefice de
division) of the French Code Civil;
(b) undertakes not to exercise any rights which it may have to take
any action against any Guaranteed Borrower in the event of any
extension of any maturity date or any other date for payment of
any amount due, owing or payable to any Finance Party under this
Agreement and agrees that the Guarantee will remain in full force
and effect notwithstanding any such extension or similar event,
and that no such event will operate by way of novation such as to
discharge it from its obligations under the Guarantee; and
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(c) agrees that the Guarantee will remain in full force and effect and
that it will remain liable under this Guarantee notwithstanding
(i) any change to the legal form of any Guaranteed Borrower and/or
Finance Party or (ii) any merger, spin off, amalgamation,
reconstruction, reorganisation or partial transfer of assets in
consideration for shares of any Guaranteed Borrower and/or Finance
Party or of their successors or assigns with any other person.
22.4 No exercise of rights of recovery
Until all amounts which may be or become payable by any Guaranteed
Borrower under or in connection with this Agreement have been irrevocably
paid in full, the Guarantor irrevocably and expressly undertakes not to
exercise any rights which it may have:
(a) as a result of being subrogated or otherwise to share in any
security or monies held, received or receivable by any Finance
Party or to claim any right of contribution, reimbursement or
indemnity or as a result of being subrogated, in relation to any
payment made by the Guarantor under this Agreement; or
(b) to claim or prove in a liquidation or other insolvency proceeding
of any Guaranteed Borrower in competition with any Lender unless
and until it has irrevocably paid and discharged in full all
amounts then due and payable by it hereunder.
22.5 Duration
The Company's obligations as a caution solidaire will continue in full to
produce effect until all sums due or which may become due by the
Guaranteed Borrowers under or in connection with the Agreement have been
fully paid and discharged.
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SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
23. REPRESENTATIONS
Each Obligor (except AXA Bermuda in relation to Clause 23.10 (Financial
Statements)) makes the representations and warranties set out in
Clauses 23.1 (Status) to 23.11 (No liquidation proceedings) of this
Clause 23 (Representations) to each Finance Party on the date of this
Agreement.
23.1 Status
It is a corporation, duly incorporated, validly existing and legally
empowered under the law of its jurisdiction of incorporation 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.
23.2 Corporate action
All corporate action necessary to enable it to enter into and perform its
obligations under this Agreement has been duly taken and its
representative for the purposes of signing this Agreement has all powers
necessary to authorise him to sign this Agreement on its behalf.
23.3 Authorisations
No Authorisation of any kind is required from any administrative authority
to permit it to execute this Agreement and/or to perform its obligations
hereunder.
23.4 Binding obligations
The obligations expressed to be assumed by it in each Finance Document
constitute its legally valid, binding and enforceable obligations (subject
to all qualifications or reservations set out in any legal opinion
delivered pursuant to Clause 4 (Conditions of Utilisation) or Clause 36
(Changes to the Obligors)).
23.5 No conflict
The execution of this Agreement by it and the performance of its
obligations hereunder do not conflict with:
(a) any provision of its constitutional documents;
(b) any obligation owed by it to any third party; or
(c) any law or regulation applicable to it.
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23.6 No proceedings pending
Save as disclosed in:
23.6.1 AXA's Document de Reference lodged with the Autorite des Marches
Financiers (AMF) for the year ended 31 December 2008;
23.6.2 any press release or Document d'actualisation du Document de
Reference since 31 December 2008 and prior to the date of this
Agreement; or
23.6.3 the most recently published Form 10-K or Form 10-Q of AXA
Financial prior to the date of this Agreement,
as at the date of this Agreement, no material litigation or other
proceedings have been commenced against it and to the best of its
knowledge and belief it has not received any notice from any third party
of such party's intention to commence such proceedings, which, in either
case, would have a Material Adverse Effect.
23.7 No Event of Default
No Event of Default in relation to itself has occurred and is continuing.
23.8 Pari passu ranking
The claims of the Finance Parties against it hereunder will rank at least
pari passu with the claims of its other present and future unsecured and
unsubordinated creditors of Financial Indebtedness except for such claims
as are mandatorily preferred by law applicable to companies generally
including, in the case of AXA Bermuda, claims preferred pursuant to the
provisions of the Insurance ▇▇▇ ▇▇▇▇ of Bermuda relating to long-term
insurance business.
23.9 Stamp duty
Under the law of its incorporation no stamp, registration or similar tax
will be payable in respect of the execution, delivery, performance or
enforcement of this Agreement except for fixed duties of EUR 125 if this
Agreement is voluntarily presented for filing with the French tax
authorities (service d'enregistrement).
23.10 Financial statements
Its audited financial statements (consolidated in the case of AXA for the
year ended 31 December 2008) have been prepared in accordance with GAAP
and give an accurate and fair view (donnent une image fidele et sincere)
of its financial situation and business (or, in the case of an U.S.
Borrower, fairly present its financial condition in all material respects)
as at the date to which they were drawn up.
23.11 No liquidation proceedings
There are no proceedings pending for its liquidation, winding-up or
similar process in relation to it.
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23.12 Repetition
The Repeating Representations are deemed to be made by each Obligor by
reference to the facts and circumstances then existing on:
(a) the date of each Utilisation Request and on each Utilisation Date;
(b) in the case of an Additional Borrower, the day on which it becomes an
Additional Borrower.
24. ADDITIONAL AXA REPRESENTATIONS AND WARRANTIES
The Company makes the representations and warranties set out in this
Clause 24 (Additional AXA representations and warranties) to each
Finance Party on the date of this Agreement:
(a) between 30 June 2009 and the date of this Agreement, no event has
occurred which had a Material Adverse Effect;
(b) save as disclosed in the AXA's Document de Reference lodged with
the Autorite des Marches Financiers (AMF) for the year ended 31
December 2008 and in any press release or Document d'actualisation
du Document de Reference since 31 December 2008 and prior to the
date of the Agreement no material litigation or other proceedings
have been commenced against any Material Subsidiary and to the
best of the Company's knowledge and belief no Material Subsidiary
has received any notice from any third party of such party's
intention to commence such proceedings, which, in either case,
would have a Material Adverse Effect;
(c) there are no proceedings pending for liquidation, winding-up or
similar process in respect of any Material Subsidiary.
25. ADDITIONAL U.S. BORROWER REPRESENTATIONS AND WARRANTIES
Each U.S. Borrower makes the additional representations and warranties set
out in Schedule 11 (U.S. Borrower Representations and Warranties) to each
Finance Party on the date of this Agreement.
26. INFORMATION UNDERTAKINGS
The undertakings in this Clause 26 (Information undertakings) remain in
force from the date of this Agreement for so long as any amount is
outstanding under the Finance Documents or any Commitment is in force.
26.1 Financial information
26.1.1 The Company shall deliver to the Agent in sufficient numbers for
all Lenders:
(a) within forty-five (45) Business Days from the date upon which
the Autorite des Marches Financiers (AMF) approves AXA's annual
report, its annual report containing the annual audited
consolidated and unconsolidated financial statements of AXA
certified by its statutory auditors;
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(b) within one hundred and twenty (120) Business Days of the end of
the relevant accounting period, all publicly available
semi-annual consolidated financial statements of AXA; and
(c) at the same time as sent to the relevant recipient, copies of
any information sent to its shareholders (or any class of them)
and the AMF (provided such information has received a visa
definitif from the AMF); and
26.1.2 each Obligor shall deliver to the Agent as soon as possible and in
sufficient numbers for all Lenders such information (or in the
case of AXA, such information additional to that mentioned in
paragraph 26.1.1) about its financial situation or business as may
be reasonably requested by any Agent (other than information
deemed confidential by the relevant Obligor, acting reasonably).
26.2 Notification of default
26.2.1 Each Obligor shall notify the Agent of any Event of Default in
relation to itself and the Company shall notify the Agent of any
Special Early Termination Event (and in each case the steps, if
any, being taken to remedy it) promptly upon becoming aware of its
occurrence (unless that Obligor is aware that a notification has
already been provided by another Obligor).
26.2.2 Promptly upon a request by the Agent, each Obligor shall confirm
to the Agent that no Event of Default in relation to itself and
the Company shall confirm to the Agent that no Special Early
Termination Event is continuing (or if an Event of Default or
Special Early Termination Event is continuing, specifying it and
the steps, if any, being taken to remedy it) except any which it
previously notified to the Agent and any of which details are
given in such confirmation.
27. ADDITIONAL U.S. BORROWER INFORMATION UNDERTAKINGS
Each U.S. Borrower gives the additional information undertakings set out
in Schedule 12 (U.S. Borrower Information Undertakings) to each Finance
Party on the date of this Agreement.
28. "KNOW YOUR CUSTOMER" CHECKS
28.1 If:
28.1.1 the introduction of or any change in (or in the interpretation,
administration or application of) any law made after the date of
this Agreement; or
28.1.2 a proposed assignment or transfer by a Lender of any of its rights
and obligations under this Agreement to a person that is not a
Lender prior to such assignment or transfer,
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obliges the Agent or any Lender (or, in the case of paragraph 28.1.2
above, any prospective new Lender) to comply with "know your customer" or
similar identification procedures in circumstances where the necessary
information is not already available to it, each Obligor shall promptly
upon the request of the Agent supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the Agent
(for itself or on behalf of any Lender or, in the case of the event
described in paragraph 28.1.2 above, on behalf of any prospective new
Lender) in order for the Agent, such Lender or, in the case of the event
described in paragraph 28.1.2 above, any prospective new Lender to carry
out and be satisfied it has complied with all necessary "know your
customer" or other similar checks under all applicable laws and
regulations pursuant to the transactions contemplated in the Finance
Documents.
28.2 Each Lender shall promptly upon the request of the Agent supply, or
procure the supply of, such documentation and other evidence as is
reasonably requested by the Agent (for itself) in order for the Agent to
carry out and be satisfied it has complied with all necessary "know your
customer" or other similar checks under all applicable laws and
regulations pursuant to the transactions contemplated in the Finance
Documents.
28.3 The Company shall, by not less than ten (10) Business Days' prior written
notice to the Agent, notify the Agent (which shall promptly notify the
Lenders) of its intention to request that one of its Subsidiaries becomes
an Additional Borrower pursuant to Clause 36 (Changes to the Obligors).
28.4 Following the giving of any notice pursuant to Clause 28.3 above, if the
accession of such Additional Borrower obliges the Agent or any Lender to
comply with "know your customer" or similar identification procedures in
circumstances where the necessary information is not already available to
it, the Company shall promptly upon the request of the Agent supply, or
procure the supply of, such documentation and other evidence as is
reasonably requested by the Agent (for itself or on behalf of any Lender
for itself or on behalf of any prospective new Lender) in order for the
Agent or such Lender or any prospective new Lender to carry out and be
satisfied it has complied with the results of all necessary "know your
customer" or other similar checks under all applicable laws and
regulations pursuant to the accession of such Subsidiary to this Agreement
as an Additional Borrower.
29. GENERAL UNDERTAKINGS
The undertakings in this Clause 29 (General Undertakings) remain in force
from the date of this Agreement for so long as any amount is outstanding
under the Finance Documents or any Commitment is in force.
Each Obligor undertakes:
29.1 Security
29.1.1 not to grant or allow to exist over its assets any Security save
for:
(a) Security granted by that Obligor included in the Security
referred to under the rubric "titres nantis/suretes reelles"
in note 28 of the Original Financial Statements, to the
extent that the Financial Indebtedness secured thereby, when
aggregated with Security also included under that rubric
granted by all of the other members of the Group as at 31
December 2008, is no more than twelve billion eight hundred
and fifty four million euro (EUR 12,854,000,000) mentioned in
that note;
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(b) 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;
(c) any Security required by any tax or customs administration in
the ordinary course of business of the relevant Obligor;
(d) carriers', warehousemen's mechanics', material men's,
repairmen's or other similar Security arising in the ordinary
course of business of the relevant Obligor;
(e) easements, rights-of-way restrictions and other similar
Security incurred in the ordinary course of business and
Security consisting of leases and sub-leases granted to
others, statutory liens of landlords, liens on the fee estate
in property leased to the relevant Obligor, pending
condemnation, zoning restrictions, easements, licenses and
restrictions on the use of property or imperfections in title
thereto that are covered by a title insurance policy or which
are immaterial, relating to statutory liens (or the
equivalent);
(f) pledges or deposits under worker's compensation unemployment
insurance and other social security legislation;
(g) Security created by it over securities (including any
debenture, bond or note) or over sums of money in favour of
the clearing system of any regulated market or for the
purpose of a transaction concluded in the ordinary course of
its cash management (and including for the avoidance of doubt
"dollar rolls" (which are repurchase agreements involving
mortgage backed securities used for cash management
purposes));
(h) Security existing on the assets of any entity at the time
such entity is merged or consolidated with the relevant
Obligor provided that the amount secured is not subsequently
increased;
(i) Security securing the obligations of the relevant Obligor
under any derivatives transaction;
(j) Security in the form of restrictions on the transferability
of investments made by the relevant Obligor in the ordinary
course of business;
(k) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and
other similar obligations incurred in the ordinary course of
business;
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(l) Security created in respect of any securitisation, sale and
lease back or similar transaction provided that the amount of
Financial Indebtedness secured thereby does not exceed,
together with all Financial Indebtedness secured by Security
created for such transactions by other Obligors, ten per cent
(10%) of AXA Consolidated Net Worth;
(m) any Security arising out of a refinancing by it of any
Financial Indebtedness secured by security permitted above,
provided that such Financial Indebtedness is not increased or
secured by any additional asset; and
(n) other Security created by the relevant Obligor not falling
within the above paragraphs, provided that the amount of
Financial Indebtedness secured thereby does not exceed,
together with all Financial Indebtedness secured by Security
(not falling within the above paragraphs) on the assets of
other Obligors, fifteen per cent (15%) of AXA Consolidated
Net Worth.
29.2 Consents
to obtain, maintain and renew all Authorisations required (and take any
other steps necessary) to ensure the validity of this Agreement and to
enable it lawfully to perform its obligations hereunder.
29.3 Change of business
to procure that no material change is made to the general nature of the
business carried on by it or, as far as the Company is concerned, the
Group from that carried on at the date of this Agreement.
29.4 Maintenance of status
(a) to do all such things as are necessary to maintain its corporate
existence; and
(b) to ensure that it has the right and is duly qualified to conduct its
business as it is conducted in all applicable jurisdictions.
29.5 Compliance with laws
to comply with all laws to which it is subject, if failure so to comply
would have a Material Adverse Effect, take all action reasonably within
its power to ensure that the Lenders will not, by permitting a
Utilisation, violate any law in the jurisdiction of the Obligor and to
take all reasonable steps to avoid any action which will bring about such
a violation.
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30. ADDITIONAL U.S. BORROWER GENERAL UNDERTAKINGS
Each U.S. Borrower makes the additional general undertakings set out in
Schedule 13 (U.S. Borrower General Undertakings) to each Finance Party on
the date of this Agreement.
31. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 31 (Events of
Default) is an Event of Default provided that in relation to the events
described in Clauses 31.1 (Non-payment) and 31.2 (Material Breach) below
an Event of Default shall only occur once the grace period provided for
therein has expired without such default having been remedied.
31.1 Non-payment
Failure by an Obligor to pay any amount due and payable under the Finance
Documents within five (5) Business Days following the due date for
payment.
31.2 Material Breach
Material breach of any other obligation of an Obligor under the Finance
Documents if the breach is not remedied within thirty (30) days of the
Agent giving notice thereof to the relevant Obligor.
31.3 Financial Indebtedness
Either:
31.3.1 failure by an Obligor 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:
(a) in respect of the Company, one hundred and fifty million euro
(EUR 150,000,000) or its equivalent in any Optional Currency;
or
(b) in respect of any other Obligor, one hundred million euro
(EUR 100,000,000) or its equivalent in any Optional Currency,
or
31.3.2 any Financial Indebtedness in an aggregate amount in excess of:
(a) in respect of the Company, one hundred and fifty million euro
(EUR 150,000,000) or its equivalent in any Optional Currency;
or
(b) in respect of any other Obligor, one hundred million euro
(EUR 100,000,000) or its equivalent in any Optional Currency,
becomes due prior to its stated maturity as a result of the holder
of the Financial Indebtedness in question, or an agent acting on
its behalf, declaring it to be due and payable in consequence of
the occurrence of an event of default (however described)
excluding, however, any such unpaid amounts liability for payment
of which is contested in good faith by the relevant Obligor, 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.
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31.4 Representations
Any representation or statement made pursuant to any provision under this
Agreement 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 an Obligor 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, and the same is not remedied within
thirty (30) days of the Agent giving notice thereof to the relevant
Obligor.
31.5 Insolvency
31.5.1 An Obligor, in France:
(a) is or is deemed for the purposes of any law to be, unable to
pay its debts as they fall due or to be insolvent (including
without limitation en etat de cessation des paiements), or
admits inability to pay its debts as they fall due;
(b) commences negotiations with all of its creditors (or certain
of them) with a view to rescheduling all or a substantial
part or its Financial Indebtedness as a result of financial
difficulties;
(c) a conciliateur is appointed for an Obligor if his terms of
reference include such general negotiations with creditors
are as described in paragraph 31.5.1(b) above;
(d) commencement by an Obligor of proceedings for conciliation in
accordance with articles L.611-1 et seq. of the French Code
de commerce;
(e) judgement for sauvegarde, redressement judiciaire or
liquidation judiciaire in relation to an Obligor under
articles L.620-1 et seq. of the French Code de commerce or
judgement is issued for the transfer of the whole of the
business of an Obligor (cession totale de l'entreprise).
31.5.2 An Obligor, in any part of the United States of America:
(a) applies for, or consents to, the appointment of, or the
taking of possession by, a receiver, custodian, trustee,
examiner or liquidator of itself or of all or a substantial
part of its property;
(b) makes a general assignment for the benefit of its creditors;
(c) commences a voluntary case under the Bankruptcy Code;
(d) files a petition with respect to itself seeking to take
advantage of any other law relating to bankruptcy,
insolvency, reorganisation, liquidation, dissolution,
arrangement or winding up, or composition or readjustment of
debts; or
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(e) takes any corporate action for the purpose of effecting any
of the foregoing with respect to itself.
31.5.3 A proceeding is commenced, without the application or consent of
an Obligor, in any court of competent jurisdiction in the United
States of America, seeking:
(a) its reorganisation, liquidation, dissolution, arrangement or
winding-up or the composition or readjustment of its debts;
(b) the appointment of a receiver, custodian, trustee, examiner,
liquidator or the like of the Obligor or of all or any
substantial part of its property; or
(c) similar relief in respect of any Obligor under any law
relating to the bankruptcy insolvency, reorganisation,
winding-up or composition or adjustment of debts,
and any such proceeding or case referred to in paragraphs
31.5.3(a) to 31.5.3(c) above continues undismissed, or an order,
judgment or decree approving or ordering any of the foregoing is
entered and continues unstayed and in effect, for a period of
twenty-one (21) or more days, or an order for relief against such
Obligor is entered in an involuntary case under the Bankruptcy
Code.
31.5.4 An Obligor (other than a U.S. Borrower) is unable or admits
inability to pay its debts as they fall due, suspends making
payments on any of its debts or, by reason of action or
anticipated financial difficulties, commences negotiations with
one or more of its creditors with a view to rescheduling any of
its Financial Indebtedness.
31.5.5 An Obligor (other than a U.S. Borrower) takes any corporate
action, or has taken against it any legal proceedings or other
procedure or step in relation to:
(a) the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganisation (by
way of voluntary arrangement, scheme of arrangement or
otherwise);
(b) the appointment of a liquidator, receiver, administrative
receiver, administrator, compulsory manager or other similar
officer.
31.6 Acceleration and Cancellation
31.6.1 On and at any time after the occurrence of an Event of Default
which is continuing in relation to a Borrower, the Agent may
without mise en demeure or any other judicial or extra judicial
step (and, if so instructed by the Majority Lenders, shall) by
notice to that Borrower, with copy to the Company but subject (to
the extent applicable) to the mandatory provisions of articles
L.620-1 et seq. of the French Code de Commerce:
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(a) declare that all or part of the Loans drawn by that Borrower,
together with accrued interest, and all other amounts accrued
or outstanding under the Finance Documents in relation to
those Loans be immediately due and payable, whereupon they
shall become immediately due and payable;
(b) declare all or any part of the Utilisations made by that
Borrower to be payable on demand, whereupon they shall
immediately become payable on demand of the Agent on the
instructions of the Majority Lenders; and/or
(c) require that Borrower immediately to repay each Letter of
Credit previously issued at its request.
31.6.2 On the occurrence of an Event of Default under paragraph 31.5.2 or
paragraph 31.5.3 of Clause 31.5 (Insolvency) in relation to any
Borrower, the Loans drawn by that Borrower shall become
immediately due and payable without notice from the Agent
(together with accrued interest and commission and any other sums
then owed by that Borrower under this Agreement) and all Letters
of Credit previously issued at the request of that Borrower shall
become immediately repayable.
31.6.3 Without prejudice to paragraphs 31.6.1 and 31.6.2 above, on and at
any time after the occurrence of an Event of Default which is
continuing in relation to the Company 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 the Majority
Lenders, shall):
(a) by notice to the Company, cancel the Total Commitments,
whereupon they shall immediately be cancelled;
(b) notify each Borrower which then has Loans outstanding that it
will declare them due and payable in full at any time after
the expiry of a period of twenty (20) Business Days from the
effective date of the notice (together with accrued interest
and all other amounts accrued or outstanding under the
Finance Documents in relation to those Loans) and that each
Letter of Credit previously issued at the request of that
Borrower will then become immediately repayable if (in each
case) the Borrower has not by the expiry of that period
exercised its rights in accordance with the terms of this
Agreement to prepay the full amount of those Loans and repay
those Letters of Credit; and
(c) take the action specified in the notification given to a
Borrower under (ii) if it has not by the specified time made
the prepayment and provided the cash collateral to which the
notification refers.
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32. SPECIAL EARLY TERMINATION EVENTS
32.1 The following events or circumstances shall each be Special Early
Termination Events:
32.1.1 any Financial Indebtedness (excluding item (f) of the definition
of that term) of a Material Subsidiary (which is not an Obligor)
exceeding in aggregate EUR 100,000,000 (or equivalent) for such
Material Subsidiary is not paid when due after expiry of any
applicable grace period or becomes due and payable before its
stated maturity as a result of the holder of the Financial
Indebtedness in question or an agent on its behalf declaring it to
be due and payable in consequence of the occurrence of an event of
default (however described), unless the occurrence of the event of
default is contested in good faith by such Material Subsidiary;
32.1.2 any event occurs in relation to a Material Subsidiary not being an
Obligor which, if it were an Obligor, would be an Event of Default
under Clause 31.5 (Insolvency);
32.1.3 any Borrower (other than AXA) ceases to be owned, directly or
indirectly, as to at least 50.1% of share capital and voting
rights by AXA.
32.2 On and at any time after the occurrence of a Special Early
Termination Event which is continuing, the Agent may without mise
en demeure or any other judicial or extra judicial step (and, if
so instructed by the Majority Lenders, shall) by notice to the
Company but subject (to the extent applicable) to the mandatory
provisions of articles L.620-1 et seq. of the French Code de
Commerce:
32.2.1 in the case of paragraph 32.1.1 and 32.1.2 above,
(a) declare that the Interest Period of any Utilisation having an
Interest Period greater than six (6) Months is reduced to six
(6) Months;
(b) cancel the Total Commitments, whereupon they shall be
immediately cancelled; and
(c) require repayment of each Letter of Credit immediately or, if
later, the date which is six (6) months after the first day
of its then current Term; and
32.2.2 in the case of paragraph 32.1.3 above, require the relevant
Borrower within three (3) Business Days after receipt of the
notice to prepay all outstanding Loans drawn by it, and to repay
each Letter of Credit previously issued at its request by
(irrespective of whether it is or is not a French company)
providing full cash cover or granting such security as is
contemplated by paragraph 6.1.2(g)(ii).
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SECTION 9
CHANGES TO PARTIES
33. CHANGES TO THE LENDERS
33.1 Assignments and transfers by the Lenders
33.1.1 Subject to this Clause 33, a Lender (the "Existing Lender") may
only:
(a) assign any of its rights to;
(b) transfer any of its rights (including such as relate to that
Lender's participation in each Utilisation) and obligations
to; or
(c) enter into any sub-participation with,
in each case:
(i) another bank or financial institution which is either
another Lender or an Affiliate of a Lender (or in the
case of Calyon, any Caisse Regionale du Credit Agricole
Mutuel or LCL); or
(ii) (solely in respect of a transfer made in accordance
with paragraph 12.5.4 of Clause 12.5 (Right of
replacement or repayment and cancellation in relation
to a single Lender) following a request by the Existing
Lender for repayment or indemnification in the manner
described in paragraph 12.5.1(a) or 12.5.1(b) of Clause
12.5 (Right of replacement or repayment and
cancellation in relation to a single Lender), where
such request by the Existing Lender was made in respect
of any Taxes or increased costs resulting directly from
a change after the Signing Date in the laws or
regulations of the United States related to Taxes)
another bank or financial institution,
each, a "New Lender".
33.1.2 Any such transfer by a Lender of all or, as the case may be, part
of its Facility A Commitment must relate to all or, as the case
may be, a corresponding pro rata part of its Swingline Commitments
or (if it is not itself a Swingline Lender) be accompanied by a
transfer of all or, as the case may be, a corresponding pro rata
part of the Swingline Commitment of its Affiliate.
33.1.3 A Facility A Lender may not (for the avoidance of doubt) transfer
all or any part of any of its rights and obligations as an L/C
Lender separately from a transfer of its Facility A Commitment (or
a corresponding part thereof).
33.1.4 The consent of the Finance Parties is hereby given to a transfer
by an Existing Lender to a New Lender.
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33.2 Conditions of assignment or transfer
33.2.1 Each Lender shall notify the Company of an assignment, transfer or
sub-participation to another Lender or an Affiliate of a Lender.
33.2.2 A transfer will only be effective if (i) the procedure set out in
Clause 33.5 (Procedure for transfer) is complied with and (ii) the
Agent has performed all "know your customer" or other checks
relating to any person that it is required to carry out in
relation to such transfer to a New Lender, the completion of which
the Agent shall promptly notify to the Existing Lender and the New
Lender.
33.2.3 If:
(a) a Lender makes a transfer or changes its Facility Office; and
(b) as a result of circumstances existing at the date the
transfer or change occurs, an Obligor would be obliged to
make a payment under Clause 17 (Tax gross-up and indemnities)
or Clause 18 (Increased Costs) to the New Lender or to the
Lender acting through its new Facility Office,
then the New Lender or the Lender acting through its new Facility
Office is only entitled to receive payment under those Clauses to
the same extent as the Existing Lender or the Lender acting
through its previous Facility Office would have been if the
transfer or change had not occurred.
33.3 Assignment or transfer fee
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of two thousand
euro (EUR 2,000).
33.4 Limitation of responsibility of Existing Lenders
33.4.1 Unless expressly agreed to the contrary, an Existing Lender makes
no representation or warranty and assumes no responsibility to a
New Lender for:
(a) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
documents;
(b) the financial condition of any Obligor;
(c) the performance and observance by any Obligor of its
obligations under the Finance Documents or any other
documents; or
(d) the accuracy of any statements (whether written or oral) made
in or in connection with any Finance Document or any other
document,
and any representations or warranties implied by law are excluded.
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33.4.2 Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
(a) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and
affairs of each Obligor and its related entities in
connection with its participation in this Agreement and has
not relied exclusively on any information provided to it by
the Existing Lender in connection with any Finance Document;
and
(b) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
whilst any amount is or may be outstanding under the Finance
Documents or any Commitment is in force.
33.4.3 Nothing in any Finance Document obliges an Existing Lender to:
(a) accept a re-transfer from a New Lender of any of the rights
and obligations assigned or transferred under this Clause 33
(Changes to the Lenders); or
(b) support any losses directly or indirectly incurred by the New
Lender by reason of the non-performance by any Obligor of its
obligations under the Finance Documents or otherwise.
33.5 Procedure for transfer
33.5.1 Subject to the conditions set out in Clause 33.2 (Conditions of
assignment or transfer) a transfer is effected in accordance with
paragraph 33.5.3 below when the Agent executes an otherwise duly
completed Transfer Agreement delivered to it by the Existing
Lender and the New Lender. The Agent shall, as soon as reasonably
practicable after receipt by it of a duly completed Transfer
Agreement appearing on its face to comply with the terms of this
Agreement and delivered in accordance with the terms of this
Agreement, execute that Transfer Agreement.
33.5.2 The Agent shall only be obliged to execute a Transfer Agreement
delivered to it by the Existing Lender and the New Lender upon its
completion of all "know your customer" or other checks relating to
any person that it is required to carry-out in relation to the
transfer to such New Lender.
33.5.3 By virtue of the execution of a Transfer Agreement, as from the
Transfer Date:
(a) to the extent that in the Transfer Agreement the Existing
Lender seeks to transfer its rights and obligations under the
Finance Documents, the Existing Lender shall be discharged to
the extent provided for in the Transfer Agreement from
further obligations towards each of the Obligors and the
other Finance Parties under the Finance Documents;
(b) the rights and obligations of the Existing Lender with
respect to the Obligors shall be transferred to the New
Lender, to the extent provided for in the Transfer Agreement;
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(c) the Agent, the Arrangers, the New Lender and other Lenders
shall have the same rights and obligations between themselves
as they would have had had the New Lender been an Original
Lender with the rights and/or obligations to which it is
entitled and subject as a result of the transfer and to that
extent the Agent, the Arrangers and the Existing Lender shall
each be released from further obligations to each other under
the Finance Documents; and
(d) the New Lender shall become a Party as a "Lender".
33.5.4 The Agent shall notify the Company if a Lender has effected a
transfer to another Lender or to an Affiliate of a Lender pursuant
to Clause 33.2.1 above.
33.5.5 The Agent, acting for these purposes solely as an agent of the
Borrowers, will maintain (and make available for inspection by the
Borrowers and the Lenders upon reasonable prior notice at
reasonable times) a register for the recordation of, and will
record, the names and addresses of the Lenders and the respective
amounts of the Commitments and Loans of each Lender from time to
time (the "Register"). Absent manifest error, the entries in the
Register shall be conclusive and binding for all purposes and the
Borrowers, the Agent and the Lenders shall, absent manifest error,
treat each person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement.
34. SECURITY OVER LENDERS' RIGHTS
In addition to the other rights provided to Lenders under Clause 33
(Changes to the Lenders), each Lender may without consulting with or
obtaining consent from any Obligor, at any time charge, assign or
otherwise create Security in or over (whether by way of collateral or
otherwise) all or any of its rights under any Finance Document to secure
obligations of that Lender including, without limitation:
(a) any charge, assignment or other Security to secure its obligations to
a federal reserve or central bank or equivalent body (including the
SFEF (Societe de financement de l'economie francaise)); and
(b) in the case of any Lender which is a fund, any charge, assignment or
other Security granted to any holders (or trustee or representatives
of holders) of obligations owed, or securities issued, by that Lender
as Security for those obligations or securities,
except that no such charge, assignment or Security shall:
(i) release a Lender from any of its obligations under the
Finance Documents or substitute the beneficiary of the
relevant charge, assignment or Security for the Lender as a
party to any of the Finance Documents; or
(ii) require any payments to be made by an Obligor other than or
in excess of, or grant to any person any more extensive
rights than, those required to be made or granted to the
relevant Lender under the Finance Documents.
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35. PRO RATA INTEREST SETTLEMENT
If the Agent has notified the Lenders that it is able to distribute
interest payments on a "pro rata basis" to Existing Lenders and New
Lenders then (in respect of any transfer pursuant to Clause 33.5
(Procedure for transfer) the Transfer Date of which, in each case, is
after the date of such notification and is not on the last day of an
Interest Period):
(a) any interest or fees in respect of the relevant participation
which are expressed to accrue by reference to the lapse of time
shall continue to accrue in favour of the Existing Lender up to but
excluding the Transfer Date ("Accrued Amounts") and shall become due
and payable to the Existing Lender (without further interest accruing
on them) on the last day of the current Interest Period (or, if the
Interest Period is longer than six Months, on the next of the dates
which falls at six Monthly intervals after the first day of that
Interest Period); and
(b) the rights assigned or transferred by the Existing Lender will not
include the right to the Accrued Amounts so that, for the
avoidance of doubt:
(i) when the Accrued Amounts become payable, those Accrued
Amounts will be payable for the account of the Existing
Lender; and
(ii) the amount payable to the New Lender on that date will be the
amount which would, but for the application of this Clause
35, have been payable to it on that date, but after deduction
of the Accrued Amounts.
36. CHANGES TO THE OBLIGORS
36.1 Assignments and transfer by Obligors
No Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
36.2 Additional Borrowers
36.2.1 Subject to compliance with the provisions of Clauses 28.3 and 28.4
of Clause 28 ("Know your customer" checks), the Company may
request that any of its Subsidiaries becomes an Additional
Borrower. That Subsidiary shall become an Additional Borrower in
relation to the Facility (or Facilities) specified in the
Accession Letter if:
(a) in relation to any Subsidiary not incorporated in France, the
United Kingdom, the United States of America or any other
country of the European Union or the OECD, all the Lenders
approve the addition of that Subsidiary;
(b) the Company delivers to the Agent a duly completed and
executed Accession Letter which specifies whether the
Subsidiary is to become an Additional Borrower;
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(c) the Company confirms that no Event of Default or Special
Early Termination Event is continuing or would occur as a
result of that Subsidiary becoming an Additional Borrower;
(d) the Agent has received all of the documents and other
evidence listed in Part B of Schedule 2 (Conditions
precedent) in relation to that Additional Borrower, each in
form and substance satisfactory to the Agent.
(e) (in relation to any Subsidiary not incorporated in France,
the United Kingdom or the United States) each Lender has
notified the Agent that it is satisfied that it will be able,
without contravening any applicable law, to participate in
Utilisations made by the proposed Additional Borrower;
36.2.2 The Agent shall notify the Company and the Lenders promptly upon
being satisfied that it has received (in form and substance
satisfactory to it) all the documents and other evidence listed in
Part B of Schedule 2 (Conditions precedent).
36.2.3 If the Additional Borrower is not incorporated or deemed to be
resident for tax purposes in France, the United Kingdom or the
United States, paragraph 17.2.4(a) shall not apply to payments
made by it to a Lender which was not a Qualifying Lender at the
time it became an Additional Borrower.
36.3 Resignation of a Borrower
36.3.1 The Company may request that a Borrower (other than the Company)
ceases to be a Borrower by delivering to the Agent a Resignation
Letter.
36.3.2 The Agent shall accept a Resignation Letter and notify the Company
and the Lenders of its acceptance if:
(a) no Event of Default or Special Early Termination Event is
continuing or would result from the acceptance of the
Resignation Letter (and the Company has confirmed this is the
case); and
(b) the Borrower is under no actual or contingent obligations as
a Borrower under any Finance Documents,
whereupon that company shall cease to be a Borrower and shall have
no further rights or obligations under the Finance Documents.
36.4 Repetition of Representations
Delivery of an Accession Letter constitutes confirmation by the relevant
Subsidiary that the Repeating Representations are true and correct in relation
to it as at the date of delivery as if made by reference to the facts and
circumstances then existing.
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SECTION 10
THE FINANCE PARTIES
37. ROLE OF THE AGENT, THE ARRANGERS AND THE SWINGLINE AGENT
37.1 Appointment of the Agent
37.1.1 Each other Finance Party appoints the Agent to act as its agent
under and in connection with the Finance Documents.
37.1.2 Each other Finance Party authorises the Agent to exercise the
rights, powers, authorities and discretions specifically given to
the Agent under or in connection with the Finance Documents
together with any other incidental rights, powers, authorities and
discretions.
37.2 Duties of the Agent
37.2.1 The Agent shall promptly forward to a Party the original or a copy
of any document other than any Transfer Agreement which is
delivered to the Agent for that Party by any other Party.
37.2.2 Except where a Finance Document specifically provides otherwise,
the Agent is not obliged to review or check the adequacy, accuracy
or completeness of any document it forwards to another Party.
37.2.3 If the Agent receives notice from a Party referring to this
Agreement, describing an Event of Default or a Special Early
Termination Event and stating that the circumstance described is
an Event of Default or a Special Early Termination Event, it shall
promptly notify the Finance Parties.
37.2.4 If the Agent is aware of the non-payment of any principal,
interest, non-utilisation fee or other fee payable to a Finance
Party (other than the Agent or the Arrangers) under this Agreement
it shall promptly notify the other Finance Parties.
37.2.5 The Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
37.2.6 The Agent shall provide to the Company within ten (10) Business
Days of a request by the Company (but no more frequently than once
per calendar month), a list (which may be in electronic form)
setting out the names of the Lenders as at the date of that
request, their respective Commitments, the address and fax number
(and the department or officer, if any, for whose attention any
communication is to be made) of each Lender for any communication
to be made or document to be delivered under or in connection with
the Finance Documents, the electronic mail address and/or any
other information required to enable the sending and receipt of
information by electronic mail or other electronic means to and by
each Lender to whom any communication under or in connection with
the Finance Documents may be made by that means and the account
details of each Lender for any payment to be distributed by the
Agent to that Lender under the Finance Documents.
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37.3 Role of the Arrangers
Except as specifically provided in the Finance Documents, the Arrangers
have no obligations of any kind to any other Party under or in connection
with any Finance Document.
37.4 No fiduciary duties
37.4.1 Nothing in this Agreement constitutes the Agent or the Arrangers
as a trustee or fiduciary of any other person.
37.4.2 Neither the Agent nor the Arrangers shall be bound to account to
any Lender for any sum or the profit element of any sum received
by it for its own account.
37.5 Business with the Group
The Agent and 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.
37.6 Rights and discretions of the Agent
37.6.1 The Agent may rely on:
(a) any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
(b) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within
his power to verify.
37.6.2 The Agent may assume (unless it has received notice to the
contrary in its capacity as agent for the Lenders) that:
(a) no Event of Default or Special Early Termination Event has
occurred (unless it has actual knowledge of an Event of
Default arising under Clause 31.1 (Non-payment));
(b) any right, power, authority or discretion vested in any Party
or the Majority Lenders has not been exercised; and
(c) any notice or request made by the Company (other than a
Utilisation Request) is made on behalf of and with the
consent and knowledge of all the Obligors.
37.6.3 The Agent may engage, pay for and rely on the advice or services
of any lawyers, accountants, surveyors or other experts.
37.6.4 The Agent may act in relation to the Finance Documents through its
personnel and agents.
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37.6.5 The Agent may disclose to any other Party any information it
reasonably believes it has received as agent under this Agreement.
37.6.6 Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent nor the Arrangers is obliged to do or
omit to do anything if it would or might in its reasonable opinion
constitute a breach of any law or regulation or a breach of a
fiduciary duty or duty of confidentiality.
37.6.7 Without prejudice to the generality of Clause 37.6.5 above, the
Agent may disclose the identity of a Defaulting Lender to the
other Finance Parties and the Company and shall disclose the same
upon the written request of the Company or the Majority Lenders.
37.6.8 The Agent may not disclose to any Finance Party any details of the
rate notified to the Agent by any Lender or the identity of any
such Lender for the purpose of Clause 15.2 (Market Disruption).
37.7 Majority Lenders' instructions
37.7.1 Unless a contrary indication appears in a Finance Document, the
Agent shall (i) exercise any right, power, authority or discretion
vested in it as Agent in accordance with any instructions given to
it by the Majority Lenders (or, if so instructed by the Majority
Lenders, refrain from exercising any right, power, authority or
discretion vested in it as Agent) and (ii) not be liable for any
act (or omission) if it acts (or refrains from taking any action)
in accordance with an instruction of the Majority Lenders.
37.7.2 Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all
the Finance Parties.
37.7.3 The Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such security as it may require for
any cost, loss or liability (together with any associated VAT)
which it may incur in complying with the instructions.
37.7.4 In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from
taking action) as it considers to be in the best interest of the
Lenders.
37.7.5 The Agent is not authorised to act on behalf of a Lender in any
legal or arbitration proceedings relating to any Finance Document,
without having first obtained that Lender's authority to act on
its behalf in those proceedings.
37.8 Responsibility for documentation
Neither the Agent nor the Arrangers:
37.8.1 is responsible for the adequacy, accuracy and/or completeness of
any information (whether oral or written) supplied by the Agent,
the Arrangers, an Obligor or any other person given in or in
connection with any Finance Document; or
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37.8.2 is responsible for the legality, validity, effectiveness, adequacy
or enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in
anticipation of or in connection with any Finance Document.
37.9 Exclusion of liability
37.9.1 Without limiting paragraph 37.9.2 below and without prejudice to
the provisions of Clause 41.5 (Disruption to Payment Systems
etc.), the Agent will not be liable for any action taken by it
under or in connection with any Finance Document, unless directly
caused by its gross negligence or wilful misconduct.
37.9.2 No Party (other than the Agent) may take any proceedings against
any officer, employee or agent of the Agent in respect of any
claim it might have against the Agent or in respect of any act or
omission of any kind by that officer, employee or agent in
relation to any Finance Document and any officer, employee or
agent of the Agent may rely on this Clause.
37.9.3 The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required
under the Finance Documents to be paid by the Agent if the Agent
has taken all necessary steps as soon as reasonably practicable to
comply with the regulations or operating procedures of any
recognised clearing or settlement system used by the Agent for
that purpose.
37.9.4 Nothing in this Agreement shall oblige the Agent or the Arranger
to carry out any "know your customer" or other checks in relation
to any person on behalf of any Lender and each Lender confirms to
the Agent and the Arranger that it is solely responsible for any
such checks it is required to carry out and that it may not rely
on any statement in relation to such checks made by the Agent or
Arranger.
37.10 Lenders' indemnity to the Agent
Each Lender shall (in proportion to its share of the Total Commitments or,
if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Agent, within three (3) Business Days of demand, against any cost, loss or
liability incurred by the Agent (otherwise than by reason of the Agent's
gross negligence or wilful misconduct) (or in the case of any cost, loss
or liability pursuant to Clause 41 (Disruption to Payment Systems etc)
notwithstanding the Agent's negligence, gross negligence or any other
category of liability whatsoever but not including any claim based on the
fraud of the Agent) in acting as Agent under the Finance Documents (unless
the Agent has been reimbursed by an Obligor pursuant to a Finance
Document).
37.11 Resignation of the Agent
37.11.1 The Agent may resign and appoint one of its Affiliates as
successor by giving notice to the other Finance Parties and the
Company.
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37.11.2 Alternatively the Agent may resign by giving notice to the other
Finance Parties and the Company, in which case the Majority
Lenders (after consultation with the Company) may appoint a
successor Agent.
37.11.3 If the Majority Lenders have not appointed a successor Agent in
accordance with paragraph 37.11.2 above within thirty (30) days
after notice of resignation was given, the Agent (after
consultation with the Company) may appoint a successor Agent.
37.11.4 The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such
assistance as the successor Agent may reasonably request for the
purposes of performing its functions as Agent under the Finance
Documents.
37.11.5 The Agent's resignation notice shall only take effect upon the
appointment of a successor.
37.11.6 Upon the appointment of a successor, the retiring Agent shall be
discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause
37 (Role of the Agent, the Arrangers and the Swingline Agent). 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 an original Party.
37.11.7 After consultation with the Company, the Majority Lenders may, by
notice to the Agent, require it to resign in accordance with
paragraph 37.11.2 above. In this event, the Agent shall resign in
accordance with paragraph 37.11.2 above.
37.12 Replacement of the Agent
(a) After consultation with the Company, the Majority Lenders may, by
giving thirty (30) days' notice to the Agent (or, at any time the
Agent is an Impaired Agent, by giving any shorter notice
determined by the Majority Lenders) replace the Agent by
appointing a successor Agent (acting through an office in France).
(b) The retiring Agent shall (at its own cost if it is an Impaired
Agent and otherwise at the expense of the Lenders) make available
to the successor Agent such documents and records and provide such
assistance as the successor Agent may reasonably request for the
purposes of performing its functions as Agent under the Finance
Documents.
(c) The appointment of the successor Agent shall take effect on the
date specified in the notice from the Majority Lenders to the
retiring Agent. As from this date, the retiring Agent shall be
discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause
38 (and any agency fees for the account of the retiring Agent
shall cease to accrue from (and shall be payable on) that date).
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(d) Any successor Agent 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 an original Party.
37.13 Confidentiality
37.13.1 In acting as agent for the Finance Parties, 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.
37.13.2 If information is received by another division or department of
the Agent, it may be treated as confidential to that division or
department and the Agent shall not be deemed to have notice of it.
37.14 Relationship with the Lenders
37.14.1 Subject to Clause 35 (Pro rata interest settlement), the Agent may
treat each Lender as a Lender, entitled to payments under this
Agreement and acting through its Facility Office unless it has
received not less than five (5) Business Days prior notice from
that Lender to the contrary in accordance with the terms of this
Agreement.
37.14.2 Each Lender shall supply the Agent with any information required
by the Agent in order to calculate the Mandatory Cost in
accordance with Schedule 4 (Mandatory Cost Formulae).
37.15 Credit appraisal by the Lenders
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Lender confirms to the Agent and the Arrangers that it has been, and
will continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection
with any Finance Document including but not limited to:
37.15.1 the financial condition, status and nature of each member of the
Group;
37.15.2 the legality, validity, effectiveness, adequacy or enforceability
of any Finance Document and any other agreement, arrangement or
document entered into, made or executed in anticipation of, under
or in connection with any Finance Document;
37.15.3 whether that Lender has recourse, and the nature and extent of
that recourse, against any Party or any of its respective assets
under or in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document;
and
37.15.4 the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent, any
Party or by any other person under or in connection with any
Finance Document, the transactions contemplated by the Finance
Documents or any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection
with any Finance Document.
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37.16 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender
of which it is an Affiliate) ceases to be a Lender, the Agent shall (in
consultation with the Company) appoint another Lender or an Affiliate of a
Lender to replace that Reference Bank.
37.17 Deduction from amounts payable by the Agent
If any Party owes an amount to the Agent under the Finance Documents the
Agent may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Agent would
otherwise be obliged to make under the Finance Documents and apply the
amount deducted in or towards satisfaction of the amount owed. For the
purposes of the Finance Documents that Party shall be regarded as having
received any amount so deducted.
37.18 Swingline Agent
37.18.1 Each Swingline Lender appoints the Swingline Agent to act as its
agent in connection with the Swingline Facility, and accordingly
to exercise the rights, powers, authorities and discretions
specifically given to the Swingline Agent under or in connection
with the Finance Documents, together with any other incidental
rights, powers, authorities and discretions.
37.18.2 Notwithstanding any other term of this Agreement and without
limiting the liability of any Obligor under the Finance Documents,
each Facility A Lender shall (in the proportion its Facility A
Commitment bears to the Total Commitments or, if the Total
Commitments are then zero, bore to the Total Commitments
immediately prior to their reduction to zero) pay to or indemnify
the Swingline Agent, within three (3) Business Days of demand, for
or against any cost, loss or liability incurred by the Swingline
Agent (other than by reason of the Swingline Agent's gross
negligence or wilful misconduct) in acting as Swingline Agent
(unless the Swingline Agent has been reimbursed by an Obligor
pursuant to a Finance Document).
37.18.3 This Clause 37 (except Clause 37.10 (Lenders' indemnity to the
Agent)) applies to the Swingline Agent as if each reference to the
"Agent" were as a reference to the Swingline Agent.
38. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
38.1.1 interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;
38.1.2 oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent,
order and manner of any claim; or
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38.1.3 oblige any Finance Party to disclose any information relating to
its affairs (tax or otherwise) or any computations in respect of
Tax.
39. SHARING AMONG THE FINANCE PARTIES
39.1 Payments to Finance Parties
If a Finance Party (a "Recovering Finance Party") receives or recovers any
amount from an Obligor other than in accordance with Clause 40 (Payment
mechanics) and applies that amount to a payment due under the Finance
Documents then:
39.1.1 the Recovering Finance Party shall, within three (3) Business
Days, notify details of the receipt or recovery to the Agent;
39.1.2 the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Finance Party would have been
paid had the receipt or recovery been received or made by the
Agent and distributed in accordance with Clause 40 (Payment
mechanics), without taking account of any Tax which would be
imposed on the Agent in relation to the receipt, recovery or
distribution; and
39.1.3 the Recovering Finance Party shall, within three (3) Business Days
of demand by the Agent, pay to the Agent an amount (the "Sharing
Payment") equal to such receipt or recovery less any amount which
the Agent determines may be retained by the Recovering Finance
Party as its share of any payment to be made, in accordance with
Clause 41.5 (Partial payments).
39.2 Redistribution of payments
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other than
the Recovering Finance Party) in accordance with Clause 41.5 (Partial
payments).
39.3 Recovering Finance Party's rights
39.3.1 On a distribution by the Agent under Clause 39.2 (Redistribution
of payments), the Recovering Finance Party will be subrogated to
the rights of the Finance Parties which have shared in the
redistribution which Finance Parties agree that they will in that
connection waive the benefit of Article 1252 of the French Code
Civil.
39.3.2 If and to the extent that the Recovering Finance Party is not able
to rely on its rights under paragraph 39.3.1 above, the relevant
Obligor shall be liable to the Recovering Finance Party for a debt
equal to the Sharing Payment which is immediately due and payable.
39.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering
Finance Party becomes repayable and is repaid by that Recovering Finance
Party, then:
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39.4.1 each Finance Party which has received a share of the relevant
Sharing Payment pursuant to Clause 39.2 (Redistribution of
payments) shall, upon request of the Agent, pay to the Agent for
account of that Recovering Finance Party an amount equal to the
appropriate part of its share of the Sharing Payment (together
with an amount as is necessary to reimburse that Recovering
Finance Party for its proportion of any interest on the Sharing
Payment which that Recovering Finance Party is required to pay);
and
39.4.2 that Recovering Finance Party's rights of subrogation in respect
of any reimbursement shall be cancelled and the relevant Obligor
will be liable to the reimbursing Finance Party for the amount so
reimbursed.
39.5 Exceptions
39.5.1 This Clause 39 (Sharing among the Finance Parties) shall not apply
to the extent that the Recovering Finance Party would not, after
making any payment pursuant to this Clause, have a valid and
enforceable claim against the relevant Obligor.
39.5.2 A Recovering Finance Party is not obliged to share with any other
Finance Party any amount which the Recovering Finance Party has
received or recovered as a result of taking legal or arbitration
proceedings, if:
(a) it notified that other Finance Party of the legal or
arbitration proceedings; and
(b) that other Finance Party had an opportunity to participate in
those legal or arbitration proceedings but did not do so as
soon as reasonably practicable having received notice and did
not take separate legal or arbitration proceedings.
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SECTION 11
ADMINISTRATION
40. PAYMENT MECHANICS
40.1 Payments to the Agent
40.1.1 On each date on which an Obligor or a Lender is required to make a
payment under a Finance Document, that Obligor or Lender shall
make the same available to the Agent (unless a contrary indication
appears in a Finance Document) for value on the due date at the
time and in such funds specified by the Agent as being customary
at the time for settlement of transactions in the relevant
currency in the place of payment.
40.1.2 Payment shall be made to such account in the principal financial
centre of the country of that currency (or, in relation to euro,
in a principal financial centre in a Participating Member State or
London) with such bank as the Agent specifies.
40.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for another
Party shall, subject to Clause 40.3 (Distributions to an Obligor) and
Clause 40.4 (Clawback) be made available by the Agent as soon as
practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account
of its Facility Office), to such account as that Party may notify to the
Agent by not less than five Business Days' notice with a bank in the
principal financial centre of the country of that currency (or, in
relation to euro, in the principal financial centre of a Participating
Member State or London).
40.3 Distributions to an Obligor
The Agent may (with the consent of the Obligor or in accordance with
Clause 43 (Set-off)) apply any amount received by it for that Obligor in
or towards payment (on the date and in the currency and funds of receipt)
of any amount due from that Obligor under the Finance Documents or in or
towards purchase of any amount of any currency to be so applied.
40.4 Clawback
40.4.1 Where a sum is to be paid to the Agent under the Finance Documents
for another Party, the Agent is not obliged to pay that sum to
that other Party (or to enter into or perform any related exchange
contract) until it has been able to establish to its satisfaction
that it has actually received that sum.
40.4.2 If the Agent pays an amount to another Party and it proves to be
the case that the Agent had not actually received that amount,
then the Party to whom that amount (or the proceeds of any related
exchange contract) was paid by the Agent shall on demand refund
the same to the Agent together with interest on that amount from
the date of payment to the date of receipt by the Agent,
calculated by the Agent to reflect its cost of funds.
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40.5 Partial payments
40.5.1 If the Agent receives a payment that is insufficient to discharge
all the amounts then due and payable by an Obligor under the
Finance Documents, the Agent shall apply that payment towards the
obligations of that Obligor under the Finance Documents in the
following order:
(a) first, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Agent under the Finance Documents;
(b) secondly, in or towards payment pro rata of any accrued
interest, fee or commission due but unpaid under this
Agreement;
(c) thirdly, in or towards payment pro rata of any principal due
but unpaid under this Agreement and any amount due but unpaid
under Clauses 7.2 (Claims under a Letter of Credit) and 7.3
(Indemnities); and
(d) fourthly, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents.
40.5.2 The Agent shall, if so directed by the Majority Lenders, vary the
order set out in paragraphs 40.5.1(b) to 40.5.1(d) above.
40.5.3 Paragraphs 40.5.1 and 40.5.2 above will override any appropriation
made by an Obligor.
40.6 Application to Swingline Agent
Clauses 40.1 (Payments to the Agent), 40.2 (Distributions by the Agent),
40.3 (Distributions to an Obligor) and 40.4 (Clawback) shall apply in
relation to payments under the Swingline Facility as if references therein
to the Agent were to the Swingline Agent.
40.7 No set-off by Obligors
All payments to be made by an Obligor under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for)
set-off or counterclaim.
40.8 Business Days
40.8.1 Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the same
calendar month (if there is one) or the preceding Business Day (if
there is not).
40.8.2 During any extension of the due date for payment of any principal
or Unpaid Sum under this Agreement interest is payable on the
principal or Unpaid Sum at the rate payable on the original due
date.
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40.9 Currency of account
40.9.1 Subject to paragraphs 40.9.2 to 40.9.5 below, the Base Currency is
the currency of account and payment for any sum due from an
Obligor under any Finance Document.
40.9.2 A repayment of a Utilisation or Unpaid Sum or a part of a
Utilisation or Unpaid Sum shall be made in the currency in which
that Utilisation or Unpaid Sum is denominated on its due date.
40.9.3 Each payment of interest shall be made in the currency in which
the sum in respect of which the interest is payable was
denominated when that interest accrued.
40.9.4 Each payment in respect of costs, expenses or Taxes shall be made
in the currency in which the costs, expenses or Taxes are
incurred.
40.9.5 Any amount expressed to be payable in a currency other than the
Base Currency shall be paid in that other currency.
40.10 Change of currency
40.10.1 Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank
of any country as the lawful currency of that country, then:
(a) any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in, the
currency of that country shall be translated into, or paid
in, the currency or currency unit of that country designated
by the Agent (after consultation with the Company); and
(b) any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency
unit into the other, rounded up or down by the Agent (acting
reasonably).
40.10.2 If a change in any currency of a country occurs, this Agreement
will, to the extent the Agent (acting reasonably and after
consultation with the Company) specifies to be necessary, be
amended to comply with any generally accepted conventions and
market practice in the Relevant Interbank Market and otherwise to
reflect the change in currency.
41. DISRUPTION TO PAYMENT SYSTEMS ETC.
If either the Agent determines (in its discretion) that a Disruption Event
has occurred or the Agent is notified by the Company that a Disruption
Event has occurred:
41.1 the Agent may, and shall if requested to do so by the Company, consult
with the Company with a view to agreeing with the Company such changes to
the operation or administration of the Facilities as the Agent may deem
necessary in the circumstances;
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41.2 the Agent shall not be obliged to consult with the Company in relation to
any changes mentioned in Clause 41.1 if, in its opinion, it is not
practicable to do so in the circumstances and, in any event, shall have no
obligation to agree to such changes;
41.3 the Agent may consult with the Finance Parties in relation to any changes
mentioned in Clause 42.1 but shall not be obliged to do so if, in its
opinion, it is not practicable to do so in the circumstances;
41.4 any such changes agreed upon by the Agent and the Company shall (whether
or not it is finally determined that a Disruption Event has occurred) be
binding upon the Parties as an amendment to (or, as the case may be,
waiver of) the terms of the Finance Documents notwithstanding the
provisions of Clause 49 (Amendments and Waivers);
41.5 the Agent shall not be liable for any damages, costs or losses whatsoever
(including, without limitation for negligence, gross negligence or any
other category of liability whatsoever but not including any claim based
on the fraud of the Agent) arising as a result of its taking, or failing
to take, any actions pursuant to or in connection with this Clause 41; and
41.6 the Agent shall notify the Finance Parties of all changes agreed pursuant
to Clause41.4 above.
42. IMPAIRED AGENT
42.1 If, at any time, the Agent becomes an Impaired Agent, an Obligor or a
Lender which is required to make a payment under the Finance Documents to
the Agent in accordance with Clause 40.1 (Payments to the Agent) may
instead either pay that amount directly to the required recipient or pay
that amount to an interest-bearing account held with an Acceptable Bank
and in relation to which no Insolvency Event has occurred and is
continuing, in the name of the Obligor or the Lender making the payment
and designated as a trust account for the benefit of the Party or Parties
beneficially entitled to that payment under the Finance Documents. In each
case such payments must be made on the due date for payment under the
Finance Documents.
42.2 All interest accrued on the amount standing to the credit of the trust
account shall be for the benefit of the beneficiaries of that trust
account pro rata to their respective entitlements.
42.3 A Party which has made a payment in accordance with this Clause 42 shall
be discharged of the relevant payment obligation under the Finance
Documents and shall not take any credit risk with respect to the amounts
standing to the credit of the trust account.
42.4 Promptly upon the appointment of a successor Agent in accordance with
Clause 38.12 (Replacement of the Agent), each Party which has made a
payment to a trust account in accordance with this Clause 42 shall give
all requisite instructions to the bank with whom the trust account is held
to transfer the amount (together with any accrued interest) to the
successor Agent for distribution in accordance with Clause 40.2
(Distributions by the Agent).
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43. SET-OFF
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party
to that Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
44. NOTICES
44.1 Communications in writing
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax or letter.
44.2 Addresses
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection
with the Finance Documents is:
44.2.1 in the case of the Company, that identified with its name in the
signature pages of this Agreement;
44.2.2 in the case of each Lender or any other Obligor, that identified
with its name in the signature pages of this Agreement or notified
in writing to the Agent on or prior to the date on which it
becomes a Party; and
44.2.3 in the case of the Agent or the Swingline Agent, that identified
with its name in the signature pages of this Agreement,
or any substitute address or fax number or department or officer as the
Party may notify to the Agent (or the Agent may notify to the other
Parties, if a change is made by the Agent) by not less than five (5)
Business Days' notice.
44.3 Delivery
44.3.1 Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents will
only be effective:
(a) if by way of fax, when received in legible form; or
(b) if by way of letter, when it has been left at the relevant
address or five (5) Business Days after being deposited in
the post postage prepaid in an envelope addressed to it at
that address,
and, if a particular department or officer is specified as part of
its address details provided under Clause 44.2 (Addresses), if
addressed to that department or officer.
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44.3.2 Any communication or document to be made or delivered to the Agent
will be effective only when actually received by the Agent and
then only if it is expressly marked for the attention of the
department or officer identified with the Agent's signature below
(or any substitute department or officer as the Agent shall
specify for this purpose).
44.3.3 All notices from or to an Obligor shall be sent through the Agent.
44.3.4 Any communication or document made or delivered to the Company in
accordance with this Clause will be deemed to have been made or
delivered to each of the Obligors.
44.4 Notification of address and fax number
Promptly upon receipt of notification of an address and fax number or
change of address or fax number pursuant to Clause 44.2 (Addresses) or
changing its own address or fax number, the Agent shall notify the other
Parties.
44.5 Electronic communication
44.5.1 Any communication to be made between the Agent or the Swingline
Agent and a Lender under or in connection with the Finance
Documents may be made by electronic mail or other electronic
means, if the Agent or the Swingline Agent and the relevant
Lender:
(a) agree that, unless and until notified to the contrary, this
is to be an accepted form of communication;
(b) notify each other in writing of their electronic mail address
and/or any other information required to enable the sending
and receipt of information by that means; and
(c) notify each other of any change to their address or any other
such information supplied by them.
44.5.2 Any electronic communication made between the Agent or the
Swingline Agent and a Lender will be effective only when actually
received in readable form and in the case of any electronic
communication made by a Lender to the Agent or the Swingline Agent
only if it is addressed in such a manner as the Agent or the
Swingline Agent shall specify for this purpose.
44.5.3 Use of websites
The Company may satisfy its obligation under this Agreement to
deliver any information in relation to those Lenders (the "Website
Lenders") who accept this method of communication by posting this
information onto an electronic website designated by the Company
and the Agent (the "Designated Website") if:
(a) the Agent expressly agrees (after consultation with each of
the Lenders) that it will accept communication of the
information by this method;
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(b) both the Company and the Agent are aware of the address of
and any relevant password specifications for the Designated
Website; and
(c) the information is in a format previously agreed between the
Company and the Agent.
If any Lender (a "Paper Form Lender") does not agree to the
delivery of information electronically then the Agent shall notify
the Company accordingly and the Company shall supply the
information to the Agent (in sufficient copies for each Paper Form
Lender) in paper form. In any event the Company shall supply the
Agent with at least one copy in paper form of any information
required to be provided by it.
44.5.4 The Agent shall supply each Website Lender with the address of and
any relevant password specifications for the Designated Website
following designation of that website by the Company and the
Agent.
44.5.5 The Company shall promptly upon becoming aware of its occurrence
notify the Agent if:
(a) the Designated Website cannot be accessed due to technical
failure;
(b) the password specifications for the Designated Website
change;
(c) any new information which is required to be provided under
this Agreement is posted onto the Designated Website;
(d) any existing information which has been provided under this
Agreement and posted onto the Designated Website is amended;
or
(e) the Company becomes aware that the Designated Website or any
information posted onto the Designated Website is or has been
infected by any electronic virus or similar software.
If the Company notifies the Agent under Clause (a) or Clause (e)
above, all information to be provided by the Company under this
Agreement after the date of that notice shall be supplied in paper
form unless and until the Agent and each Website Lender is
satisfied that the circumstances giving rise to the notification
are no longer continuing.
44.5.6 Any Website Lender may request, through the Agent, one paper copy
of any information required to be provided under this Agreement
which is posted onto the Designated Website. The Company shall
comply with any such request within ten (10) Business Days.
44.6 English language
44.6.1 Any notice given under or in connection with any Finance Document
must be in English.
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44.6.2 All other documents provided under or in connection with any
Finance Document must be:
(a) in English; or
(b) if not in English, and if so required by the Agent,
accompanied by a certified English translation and, in this
case, the English translation will prevail unless the
document is a constitutional, statutory or other official
document.
45. COMMUNICATION WHEN AGENT IS IMPAIRED AGENT
If the Agent is an Impaired Agent the Parties may, instead of
communicating with each other through the Agent, communicate with each
other directly and (while the Agent is an Impaired Agent) all the
provisions of the Finance Documents which require communications to be
made or notices to be given to or by the Agent shall be varied so that
communications may be made and notices given to or by the relevant Parties
directly. This provision shall not operate after a replacement Agent has
been appointed.
46. CALCULATIONS AND CERTIFICATES
46.1 Accounts
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to
which they relate.
46.2 Certificates and Determinations
Any certification or determination by a Finance Party of a rate or amount
under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
46.3 Day count convention
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual number
of days elapsed and a year of three hundred and sixty (360) days or, in
any case where the practice in the Relevant Interbank Market differs, in
accordance with that market practice.
For the avoidance of doubt, when stipulated under this Agreement,
different rates may be applicable to any interest, commission or fee
accruing under a Finance Document for different portions of any given
period.
47. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
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48. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any right
or remedy prevent any further or other exercise or the exercise of any
other right or remedy. The rights and remedies provided in this Agreement
are cumulative and not exclusive of any rights or remedies provided by
law.
49. AMENDMENTS AND WAIVERS
49.1 Required consents
49.1.1 Subject to Clause 49.2 (Exceptions) any term of the Finance
Documents may be amended or waived only with the consent of the
Majority Lenders and the Obligors and any such amendment or waiver
will be binding on all Parties.
49.1.2 The Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause.
49.2 Exceptions
49.2.1 An amendment or waiver that has the effect of changing or which
relates to:
(a) the definition of "Majority Lenders" in Clause 1.1
(Definitions);
(b) an extension to the date of payment of any amount under the
Finance Documents;
(c) a reduction in the Margin or a reduction in the amount of any
payment of principal, interest, fees or commission payable;
(d) an increase in or an extension of any Commitment ;
(e) pro rata sharing as between the Lenders;
(f) a change to the Obligors other than in accordance with Clause
36 (Changes to the Obligors);
(g) any provision which expressly requires the consent of all the
Lenders;
(h) the nature or scope of the guarantee and indemnity granted
under Clause 22 (Guarantee) other than where such amendment
or waiver arises from an obligation under law or regulation;
(i) a change in the currency of any payment to a Lender; or
(j) Clause 2.2 (Finance Parties' rights and obligations), Clause
33 (Changes to the Lenders) or this Clause 49 (Amendments and
waivers),
shall not be made without the prior consent of all the Lenders.
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49.2.2 An amendment or waiver which relates to the rights or obligations
of the Agent or the Arrangers may not be effected without the
consent of the Agent or the Arrangers.
49.3 Disenfranchisement of Defaulting Lenders
(a) In ascertaining the Majority Lenders or whether any given
percentage (including, for the avoidance of doubt, unanimity)
of the Total Commitments has been obtained to approve any
request for a consent, waiver, amendment or other vote under
the Finance Documents, any Defaulting Lender's Commitments
will be disregarded.
(b) For the purposes of this Clause 49.3, the Agent may assume that
the following Lenders are Defaulting Lenders:
(i) any Lender which has notified the Agent that it has become a
Defaulting Lender; and
(ii) any Lender in relation to which it is aware that any of the
events or circumstances referred to in paragraphs (a) or (b)
of the definition of "Defaulting Lender" has occurred,
unless it has received notice to the contrary from the Lender
concerned (together with any supporting evidence reasonably
requested by the Agent) or the Agent is otherwise aware that the
Lender has ceased to be a Defaulting Lender.
49.4 Replacement of a Defaulting Lender
(a) The Company may, at any time a Lender has become and continues to
be a Defaulting Lender, by giving ten (10) Business Days' prior
written notice to the Agent and such Lender:
(i) replace such Lender by requiring such Lender to (and such
Lender shall) transfer pursuant to Clause 33 (Changes to the
Lenders) all (and not part only) of its rights and
obligations under this Agreement; or
(ii) require such Lender to (and such Lender shall) transfer
pursuant to Clause 33 (Changes to the Lenders) all (and not
part only) of the undrawn Commitment of the Lender,
to a Lender or Affiliate of a Lender (a "Replacement Lender")
selected by the Company, and which (unless the Agent is an
Impaired Agent) is acceptable to the Agent (acting reasonably),
which confirms its willingness to assume and does assume all the
obligations or all the relevant obligations of the transferring
Lender (including the assumption of the transferring Lender's
participations or unfunded participations (as the case may be) on
the same basis as the transferring Lender) for a purchase price in
cash payable at the time of transfer equal to the outstanding
principal amount of such Lender's participation in the outstanding
Utilisations and all accrued interest (to the extent that the
Agent has not given a notification under Clause 24.9 (Pro rata
interest settlement)), Break Costs and other amounts payable in
relation thereto under the Finance Documents.
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(b) Any transfer of rights and obligations of a Defaulting Lender
pursuant to this Clause shall be subject to the following
conditions:
(i) the Company shall have no right to replace the Agent;
(ii) neither the Agent nor the Defaulting Lender shall have any
obligation to the Company to find a Replacement Lender;
(iii) the transfer must take place no later than thirty (30) days
after the notice referred to in paragraph (a) above; and
(iv) in no event shall the Defaulting Lender be required to pay
or surrender to the Replacement Lender any of the fees
received by the Defaulting Lender pursuant to the Finance
Documents.
50. CONFIDENTIALITY
50.1 Confidential Information
Each Finance Party agrees to keep all Confidential Information
confidential and not to disclose it to anyone, save to the extent
permitted by Clause 50.2 (Disclosure of Confidential Information), and to
ensure that all Confidential Information is protected with security
measures and a degree of care that would apply to its own confidential
information.
50.2 Disclosure of Confidential Information
Any Finance Party may disclose:
50.2.1 to any of its Affiliates and any of its or their officers,
directors, employees, professional advisers, auditors, partners
and Representatives such Confidential Information as that Finance
Party shall consider appropriate if any person to whom the
Confidential Information is to be given pursuant to this paragraph
50.2.1 is informed in writing of its confidential nature and that
some or all of such Confidential Information may be
price-sensitive information except that there shall be no such
requirement to so inform if the recipient is subject to
professional obligations to maintain the confidentiality of the
information or is otherwise bound by requirements of
confidentiality in relation to the Confidential Information;
50.2.2 to any person:
(a) to (or through) whom it assigns or transfers (or may
potentially assign or transfer) all or any of its rights
and/or obligations under one or more Finance Documents and to
any of that person's Affiliates, Representatives and
professional advisers;
(b) with (or through) whom it enters into (or may potentially
enter into), whether directly or indirectly, any
sub-participation in relation to, or any other transaction
under which payments are to be made or may be made by
reference to, one or more Finance Documents and/or one or
more Obligors and to any of that person's Affiliates,
Representatives and professional advisers;
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(c) appointed by any Finance Party or by a person to whom
paragraph 50.2.2(a) or (b) above applies to receive
communications, notices, information or documents delivered
pursuant to the Finance Documents on its behalf;
(d) who invests in or otherwise finances (or may potentially
invest in or otherwise finance), directly or indirectly, any
transaction referred to in paragraph 50.2.2(a) or (b) above;
(e) to whom information is required or requested to be disclosed
by any court of competent jurisdiction or any governmental,
banking, taxation or other regulatory authority or similar
body, the rules of any relevant stock exchange or pursuant to
any applicable law or regulation;
(f) to whom or for whose benefit that Finance Party charges,
assigns or otherwise creates Security (or may do so) pursuant
to Clause 34 (Security over Lenders' rights);
(g) to whom information is required to be disclosed in connection
with, and for the purposes of, any litigation, arbitration,
administrative or other investigations, proceedings or
disputes;
(h) who is a Party;
(i) referenced in article L.511-33 of the French Code monetaire
et financier as a person to whom a Finance Party may disclose
Confidential Information (other than any person otherwise
described in this paragraph 50.2.2); or
(j) with the consent of the Company,
in each case, such Confidential Information as that Finance Party
shall consider appropriate if:
(i) in relation to paragraphs (a), (b) and (c) above, the person
to whom the Confidential Information is to be given has
entered into a Confidentiality Undertaking except that there
shall be no requirement for a Confidentiality Undertaking if
the recipient is a professional adviser and is subject to
professional obligations to maintain the confidentiality of
the Confidential Information;
(ii) in relation to paragraph 50.2.2(d) above, the person to whom
the Confidential Information is to be given has entered into
a Confidentiality Undertaking or is otherwise bound by
requirements of confidentiality in relation to the
Confidential Information they receive and is informed that
some or all of such Confidential Information may be
price-sensitive information;
-96-
(iii) in relation to paragraphs 50.2.2(e), (f) and (g) above, the
person to whom the Confidential Information is to be given
is informed of its confidential nature and that some or all
of such Confidential Information may be price-sensitive
information except that there shall be no requirement to so
inform if, in the opinion of that Finance Party, it is not
practicable so to do in the circumstances;
50.2.3 to any person appointed by that Finance Party or by a person to
whom paragraph 50.2.2(a) or (b) above apply to provide
administration or settlement services in respect of one or more of
the Finance Documents including without limitation, in relation to
the trading of participations in respect of the Finance Documents,
such Confidential Information as may be required to be disclosed
to enable such service provider to provide any of the services
referred to in this paragraph 50.2.3 if the service provider to
whom the Confidential Information is to be given has entered into
a confidentiality agreement substantially in the form of the LMA
Master Confidentiality Undertaking for Use With
Administration/Settlement Service Providers or such other form of
confidentiality undertaking agreed between the Company and the
relevant Finance Party; and
50.2.4 to any rating agency (including its professional advisers) such
Confidential Information as may be required to be disclosed to
enable such rating agency to carry out its normal rating
activities in relation to the Finance Documents and/or the
Obligors if the rating agency to whom the Confidential Information
is to be given is informed of its confidential nature and that
some or all of such Confidential Information may be price
sensitive information.
50.3 Entire agreement
This Clause 50 constitutes the entire agreement between the Parties in
relation to the obligations of the Finance Parties under the Finance
Documents regarding Confidential Information and supersedes any previous
agreement, whether express or implied, regarding Confidential Information.
50.4 Inside information
Each of the Finance Parties acknowledges that some or all of the
Confidential Information is or may be price-sensitive information and that
the use of such information may be regulated or prohibited by applicable
legislation including securities law relating to insider dealing and
market abuse and each of the Finance Parties undertakes not to use any
Confidential Information for any unlawful purpose.
50.5 Notification of disclosure
Each of the Finance Parties agrees (to the extent permitted by law and
regulation) to inform the Company:
(a) of the circumstances of any disclosure of Confidential Information
made pursuant to paragraph 50.2.2(e) (Disclosure of Confidential
Information) except where such disclosure is made to any of the
persons referred to in that paragraph during the ordinary course
of its supervisory or regulatory function; and
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(b) upon becoming aware that Confidential Information has been
disclosed in breach of this Clause 50.
50.6 Continuing obligations
The obligations in this Clause 50 are continuing and, in particular, shall
survive and remain binding on each Finance Party for a period of twelve
(12) months from the earlier of:
(a) the date on which all amounts payable by the Obligors under or in
connection with this Agreement have been paid in full and all
Commitments have been cancelled or otherwise cease to be available;
and
(b) the date on which such Finance Party otherwise ceases to be a
Finance Party.
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SECTION 12
GOVERNING LAW AND ENFORCEMENT
51. GOVERNING LAW
This Agreement is governed by French law.
52. ENFORCEMENT - JURISDICTION
52.1 The Tribunal de Commerce de Paris has exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement (including a
dispute regarding the existence, validity or termination of this
Agreement) (a "Dispute").
52.2 This Clause 52 (Enforcement - Jurisdiction) is for the benefit of the
Finance Parties only. As a result, no Finance Party shall be prevented
from taking proceedings relating to a Dispute in any other courts with
jurisdiction. To the extent allowed by law, the Finance Parties may take
concurrent proceedings in any number of jurisdictions.
52.3 IN RELATION TO PROCEEDINGS AGAINST A U.S. BORROWER IN ANY COURT OF THE
UNITED STATES, EACH U.S. BORROWER HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
53. ELECTION OF DOMICILE
Without prejudice to any other mode of service allowed under any relevant
law, each Obligor (other than an Obligor otherwise domiciled in Paris)
irrevocably elects domicile at the Company's head office in Paris, France
for the purpose of serving any judicial or extra-judicial documents in
relation to any action or proceedings referred to above.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
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SCHEDULE 1
THE ORIGINAL PARTIES
PART A
THE ORIGINAL FACILITY A LENDERS
--------------------------------------------------------------------------------
Name of Original Facility A Name of U.S. Affiliate Facility A Commitment
Lender EUR
--------------------------------------------------------------------------------
BNP Paribas BNP Paribas, New York 275,000,000
Branch
--------------------------------------------------------------------------------
Calyon Calyon, New York Branch 200,000,000
--------------------------------------------------------------------------------
Deutsche Bank Luxembourg S.A. Deutsche Bank AG, 450,000,000
New York Branch
--------------------------------------------------------------------------------
HSBC France HSBC Bank USA, National 275,000,000
Association
--------------------------------------------------------------------------------
Societe Generale Societe Generale, 200,000,000
New York Branch
--------------------------------------------------------------------------------
Total: 1,400,000,000
--------------------------------------------------------------------------------
PART B
THE ORIGINAL SWINGLINE LENDERS
--------------------------------------------------------------------------------
Name of Original Swingline Lender Swingline Commitment
U.S.$
--------------------------------------------------------------------------------
BNP Paribas, New York Branch 200,000,000
--------------------------------------------------------------------------------
Calyon 140,000,000
--------------------------------------------------------------------------------
Deutsche Bank Luxembourg S.A. 320,000,000
--------------------------------------------------------------------------------
HSBC France 200,000,000
--------------------------------------------------------------------------------
Societe Generale 140,000,000
--------------------------------------------------------------------------------
Total: 1,000,000,000
--------------------------------------------------------------------------------
PART C
THE ORIGINAL L/C LENDERS
--------------------------------------------------------------------------------
Name of Original L/C Lender Name of U.S. Affiliate
--------------------------------------------------------------------------------
BNP Paribas BNP Paribas, New York Branch
--------------------------------------------------------------------------------
Calyon Calyon, New York Branch
--------------------------------------------------------------------------------
Deutsche Bank Luxembourg S.A. Deutsche Bank AG, New York Branch
--------------------------------------------------------------------------------
HSBC France HSBC Bank USA, National Association
--------------------------------------------------------------------------------
Societe Generale Societe Generale, New York Branch
--------------------------------------------------------------------------------
-100-
SCHEDULE 2
CONDITIONS PRECEDENT
PART A
CONDITIONS PRECEDENT TO SIGNING DATE
1. Obligors
(a) A copy of the constitutive documents of each Obligor.
(b) A certified copy of a resolution of the board of directors of each
Obligor:
(i) approving the terms of, and the transactions contemplated by,
the Finance Documents to which it is a party and resolving that
it execute the Finance Documents to which it is a party;
(ii) authorising a specified person or persons to execute the Finance
Documents to which it is a party on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to
sign and/or despatch all documents and notices (including, if
relevant, any Utilisation Request) to be signed and/or
despatched by it under or in connection with the Finance
Documents to which it is a party.
(c) A certified copy of a resolution of the Conseil de Surveillance and of
the Directoire of AXA approving the terms of the Guarantee and
authorising a specified person or persons, on its behalf, to execute
it.
(d) A specimen of the signature of each person authorised by the
resolutions referred to in paragraphs (b) and (c) above.
(e) Extrait K-bis, certificate of good standing, or equivalent for each of
the Obligors.
(f) A certified copy of the most recent financial statements of each of
the Obligors (other than those of AXA, which are contained in AXA's
Document de Reference lodged with the Autorite des Marches Financiers
(AMF) for the year ended 31 December 2008).
(g) A copy of AXA's Document de Reference lodged with the Autorite des
Marches Financiers (AMF) for the year ended 31 December 2008.
(h) Evidence that all fees then due under this Agreement have been duly
paid.
2. Legal opinions
(a) A legal opinion provided by the General Counsel of AXA Financial as to
capacity and authorisation, in a form reasonably satisfactory to the
Agent.
(b) A legal opinion provided by Linklaters LLP, acting as counsel to AXA
under French law, as to capacity and authorisation in a form
reasonably satisfactory to the Agent.
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(c) A legal opinion provided by ▇▇▇▇▇▇▇▇ Chance, acting as counsel to the
Lenders under French and U.S. law.
(d) A legal opinion provided by ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, acting as counsel
to the Lenders under Bermuda law.
-102-
PART B
CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED BY AN ADDITIONAL BORROWER
1. An Accession Letter, duly executed by the Additional Borrower and the
Company.
2. A copy of the constitutional documents of the Additional Borrower.
3. A copy of a resolution of the board of directors of the Additional Borrower:
(a) approving the terms of, and the transactions contemplated by, the
Accession Letter and the Finance Documents and resolving that it execute
the Accession Letter;
(b) authorising a specified person or persons to execute the Accession
Letter on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign and/or
despatch all other documents and notices (including, in relation to an
Additional Borrower, any Utilisation Request) to be signed and/or
despatched by it under or in connection with the Finance Documents.
4. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 3 above.
5. A certificate of the Additional Borrower (signed by a director) confirming
that making the maximum amount of Utilisations to which it would be entitled
under this Agreement would not cause any borrowing, guaranteeing or similar
limit binding on it to be exceeded.
6. A certificate of an authorised signatory of the Additional Borrower
certifying that each copy document listed in this Part B of Schedule 2
(Conditions precedent) is correct, complete and in full force and effect as
at a date no earlier than the date of the Accession Letter.
7. A copy of any other Authorisation or other document, opinion or assurance
which the Agent considers reasonably to be necessary in connection with the
entry into and performance of the transactions contemplated by the Accession
Letter or for the validity and enforceability of any Finance Document.
8. If available, the latest audited financial statements of the Additional
Borrower.
9. A legal opinion of the legal advisers to the Arrangers and the Agent in the
jurisdiction in which the Additional Borrower is incorporated.
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SCHEDULE 3
REQUESTS
PART A
UTILISATION REQUEST
LOANS
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
AXA - (EURO)1,400,000,000 CREDIT AGREEMENT DATED 15 DECEMBER 2009 (AS AMENDED
AND RESTATED ON 25 FEBRUARY 2010) (THE "AGREEMENT")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined in
the Agreement have the same meaning in this Utilisation Request unless
given a different meaning in this Utilisation Request.
2. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [o] (or, if that is not a Business Day, the next
Business Day)
Facility to be utilised: Facility A
Currency of Loan: [o]
Amount: [o] or, if less, the Available Facility
Interest Period: [o]]
3. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Utilisation Request.
4. The proceeds of this Loan should be credited to [account].
5. This Utilisation Request is irrevocable.
Yours faithfully
.......................................
authorised signatory for
[name of relevant Borrower]
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PART B
UTILISATION REQUEST
LETTERS OF CREDIT
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
AXA - (EURO)1,400,000,000 CREDIT AGREEMENT DATED 15 DECEMBER 2009 (AS AMENDED
AND RESTATED ON 25 FEBRUARY 2010) (THE "AGREEMENT")
1. We wish to arrange for a Letter of Credit to be issued on the following
terms:
Proposed Utilisation Date: [o] (or, if that is not a Business Day, the next
Business Day)
Facility to be utilised: Facility A
Amount: U.S. dollars [o] (USD [o]) or, if less, the
Available Facility
Beneficiary: [o]
Country of beneficiary: [o]
Term or Expiry Date: [o]
Borrower reference L/C [o]
2. We confirm that each condition specified in Clause 6.2 (Issue of Letters of
Credit) of the Agreement is satisfied on the date of this Utilisation
Request, and that issue of the Letter of Credit is requested to
collateralise the reinsurance risk underwriting business of the AXA Group as
required by Clause 6.2.2(h) of the Agreement.
3. We attach a copy of the proposed Letter of Credit.
4. This Utilisation Request is irrevocable.
Delivery Instructions:
[specify delivery instructions]
Yours faithfully
.......................................
authorised signatory for
-105-
[name of relevant Borrower]
-106-
PART C
UTILISATION REQUEST
SWINGLINE LOAN
From: [Borrower]
To: [Swingline Agent with a copy to the Agent]
Dated:
Dear Sirs
AXA - (EURO)1,400,000,000 CREDIT AGREEMENT DATED 15 DECEMBER 2009 (AS AMENDED
AND RESTATED ON 25 FEBRUARY 2010) (THE "AGREEMENT")
1. We wish to borrow a Swingline Loan on the following terms:
Proposed Utilisation Date: [o] (or, if that is not a New York Business
Day, the next New York Business Day)
Facility to be utilised: Swingline Facility
Amount: U.S. dollars [o] (USD [o]) or, if less, the
Available Swingline Facility
Interest Period: [o]
2. We confirm that each condition specified in Clause 8 (Utilisation -
Swingline Loans) of the Agreement is satisfied on the date of this
Utilisation Request.
3. The proceeds of this Swingline Loan should be credited to [account].
4. This Utilisation Request is irrevocable.
Yours faithfully
..........................................................
authorised signatory for
[name of relevant Borrower]
-107-
SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
"Additional Cost Rate") for each Lender, in accordance with the paragraphs
set out below. The Mandatory Cost will be calculated by the Agent as a
weighted average of the Lenders' Additional Cost Rates (weighted in
proportion to the percentage participation of each Lender in the relevant
Loan) and will be expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender
to the Agent. This percentage will be certified by that Lender in its
notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender's participation in all Loans made
from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made from
that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office in
the United Kingdom will be calculated by the Agent as follows:
(a) in relation to a sterling Loan:
AB+C(B-D)+Ex0.01
---------------- per cent per annum
100-(A+C)
(b) in relation to a Loan in any currency other than sterling:
Ex0.01
------ per cent per annum
300
Where:
A is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Lender is from time to
time required to maintain as an interest free cash ratio deposit
with the Bank of England to comply with cash ratio requirements.
B is the percentage rate of interest (excluding the Margin and the
Mandatory Cost and, if the Loan is an Unpaid Sum, the additional
rate of interest specified in paragraph 13.3.1 of Clause 13.3
(Default interest)) payable for the relevant Interest Period on
the Loan.
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C is the percentage (if any) of Eligible Liabilities which that
Lender is required from time to time to maintain as interest
bearing Special Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England to
the Agent on interest bearing Special Deposits.
E is designed to compensate Lenders for amounts payable under the
Fees Rules and is calculated by the Agent as being the average of
the most recent rates of charge supplied by the Reference Banks to
the Agent pursuant to paragraph 7 below and expressed in sterling
per one million sterling ((pound)1,000,000).
5. For the purposes of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the meanings given
to them from time to time under or pursuant to the Bank of England
Act 1998 or (as may be appropriate) by the Bank of England;
(b) "Fees Rules" means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force
from time to time in respect of the payment of fees for the
acceptance of deposits;
(c) "Fee Tariffs" means the fee tariffs specified in the Fees Rules under
the activity group A.1 Deposit acceptors (ignoring any minimum fee or
zero rated fee required pursuant to the Fees Rules but taking into
account any applicable discount rate); and
(d) "Tariff Base" has the meaning given to it in, and will be calculated
in accordance with, the Fees Rules.
6. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e. five per cent (5%) will be included
in the formula as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.
7. If requested by the Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority,
supply to the Agent, the rate of charge payable by that Reference Bank
to the Financial Services Authority pursuant to the Fees Rules in
respect of the relevant financial year of the Financial Services
Authority (calculated for this purpose by that Reference Bank as being
the average of the Fee Tariffs applicable to that Reference Bank for
that financial year) and expressed in sterling per one million sterling
((pound)1,000,000) of the Tariff Base of that Reference Bank.
8. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information
on or prior to the date on which it becomes a Lender:
(a) the jurisdiction of its Facility Office; and
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(b) any other information that the Agent may reasonably require for such
purpose.
(c) Each Lender shall promptly notify the Agent of any change to the
information provided by it pursuant to this paragraph.
9. The percentages of each Lender for the purpose of A and C above and the
rates of charge of each Reference Bank for the purpose of E above shall
be determined by the Agent based upon the information supplied to it
pursuant to paragraphs 7 and 8 above and on the assumption that, unless
a Lender notifies the Agent to the contrary, each Lender's obligations
in relation to cash ratio deposits and Special Deposits are the same as
those of a typical bank from its jurisdiction of incorporation with a
Facility Office in the same jurisdiction as its Facility Office.
10. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by
any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above is
true and correct in all respects.
11. The Agent shall distribute the additional amounts received as a result
of the Mandatory Cost to the Lenders on the basis of the Additional
Cost Rate for each Lender based on the information provided by each
Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8 above.
12. Any determination by the Agent pursuant to this Schedule in relation to
a formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all Parties.
13. The Agent may from time to time, after consultation with the Company
and the Lenders, determine and notify to all Parties any amendments
which are required to be made to this Schedule in order to comply with
any change in law, regulation or any requirements from time to time
imposed by the Bank of England, the Financial Services Authority or the
European Central Bank (or, in any case, any other authority which
replaces all or any of its functions) and any such determination shall,
in the absence of manifest error, be conclusive and binding on all
Parties.
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SCHEDULE 5
FORM OF TRANSFER AGREEMENT
This Transfer Agreement is made on [o]
Between:
(1) [o] (the "Existing Lender"); and
(2) [o] (the "New Lender")
Whereas:
(A) The Existing Lender has entered into a facility agreement dated 15
December 2009 (as amended and restated from time to time) between
(inter alios) AXA, the other Original Borrowers, certain financial
institutions and HSBC France acting as Agent of the Lenders (the
"Credit Agreement").
(B) [The Additional Borrowers listed in Schedule 1 attached to this
Transfer Agreement have become "Additional Borrowers" in accordance
with Clause 36.2 of the Credit Agreement (Additional Borrowers).]
(C) The Existing Lender wishes to transfer and the New Lender wishes to
acquire [all] [the part specified in Schedule 2 of this Transfer
Agreement] of the Existing Lender's Commitment, rights and obligations
referred to in Schedule 2 to this Transfer Agreement.
(D) Terms defined in the Credit Agreement have the same meaning when used
in this Transfer Agreement.
It is agreed as follows:
1. The Existing Lender and the New Lender agree to the transfer (cession)
of [all] [the part specified in Schedule 2 of this Transfer Agreement]
of the Existing Lender's Commitment, rights and obligations referred to
in Schedule 2 to this Transfer Agreement in accordance with Clause 33.5
of the Credit Agreement (Procedure for transfer).(1)
2. The proposed Transfer Date is [o]
3. The Facility Office and address, fax number and attention details for
notices of the New Lender for the purposes of Clause 44.2 (Addresses)
are set out in Schedule 2 of this Transfer Agreement.
4. The New Lender acknowledges the limitations on the Existing Lender's
liabilities set out in paragraph 33.4.3 of Clause 33.4 (Limitation of
responsibility of Existing Lenders) of the Credit Agreement.
---------------------
(1) The New Lender may, in the case of a transfer of rights by the Existing
Lender under this Transfer Agreement, if it considers it necessary to make
the transfer effective as against third parties, arrange for it to be
notified by way of signification to the Obligors in accordance with article
1690 of the French Code Civil.
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5. The New Lender confirms, for the benefit of the Agent and without
liability to any Obligor, that it is:
(a) [a Qualifying Lender falling within paragraph (i)(A) [or paragraph
(ii)] of the definition of Qualifying Lender;]
(b) [a Treaty Lender;]
(c) [not a Qualifying Lender].(2)
6. The New Lender confirms to the other Finance Parties represented by the
Agent that it will assume the same obligations to those Parties as it
would have been under if it was an Original Lender
7. This Transfer Agreement is governed by French law. The Tribunal of
Commerce of Paris shall have jurisdiction in relation to any dispute
concerning it.
SCHEDULE 1
Name of Additional Borrowers
SCHEDULE 2
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments]
[Existing Lender] [New Lender]
By: By:
This Transfer Agreement is accepted by the Agent and the Transfer Date is
confirmed as [o].
[Agent]
By:
----------------------
(2) Delete as applicable - each New Lender is required to confirm which of these
three categories it falls within.
-112-
SCHEDULE 6
FORM OF ACCESSION LETTER
To: [o] as Agent
From: [Subsidiary] and [Company]
Dated:
Dear Sirs
AXA - (EURO)1,400,000,000 CREDIT AGREEMENT DATED 15 DECEMBER
2009 (AS AMENDED AND RESTATED ON 25 FEBRUARY 2010) (THE "AGREEMENT")
1. We refer to the Agreement. This is an Accession Letter. Terms defined
in the Agreement have the same meaning in this Accession Letter unless
given a different meaning in this Accession Letter.
2. [Subsidiary] agrees to become an Additional Borrower and to be bound by
the terms of the Agreement as an Additional Borrower pursuant to Clause
[36.2 (Additional Borrowers)] of the Agreement. [Subsidiary] is a
company duly incorporated under the laws of [name of relevant
jurisdiction].
3. The Company confirms that no Event of Default or Special Early
Termination Event is continuing or would occur as a result of
[Subsidiary] becoming an Additional Borrower.
4. [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
5. This Accession Letter is governed by French law.
[Company] [Subsidiary]
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SCHEDULE 7
FORM OF RESIGNATION LETTER
To: [o] as Agent
From: [resigning Obligor] and [Company]
Dated:
Dear Sirs
AXA - (EURO)1,400,000,000 CREDIT AGREEMENT DATED 15 DECEMBER
2009 (AS AMENDED AND RESTATED ON 25 FEBRUARY 2010) (THE "AGREEMENT")
1. We refer to the Agreement. This is a Resignation Letter. Terms defined
in the Agreement have the same meaning in this Resignation Letter
unless given a different meaning in this Resignation Letter.
2. Pursuant to [Clause 36.3 (Resignation of a Borrower)]), we request that
[resigning Borrower] be released from its obligations as a Borrower
under the Agreement.
3. The Company confirms that no Event of Default or Special Early
Termination Event is continuing or would result from the acceptance of
this request.
4. This Resignation Letter is governed by French law.
[Company] [Subsidiary]
By: By:
-114-
SCHEDULE 8
FORM OF CONFIDENTIALITY UNDERTAKING
LMA CONFIDENTIALITY LETTER
To:
[insert name of New Lender]
Re:
Facility: EUR 1,400,000,000 Revolving Credit Facility dated 15 December
2009 (as amended and restated on 25 February 2010)
Borrower: AXA
Mandated Lead Arrangers: BNP Paribas, Calyon, Deutsche Bank AG London Branch,
HSBC France and Societe Generale Corporate & Investment Banking
Dear Sirs,
We understand that you are considering participating in the Facility as New
Lender. In consideration of us agreeing to make available to you certain
information, by your signature of a copy of this letter you agree as follows:
1. Confidentiality Undertaking
You undertake:
(a) to keep the Confidential Information strictly confidential and
not to disclose it to anyone except as provided for by
paragraph 2 below and to ensure that the Confidential
Information is protected with security measures and a degree
of care that would apply to your own confidential information;
(b) to keep strictly confidential and not disclose to anyone the
fact that the Confidential Information has been made available
or that discussions or negotiations are taking place or have
taken place between us in connection with the Facility;
(c) to use the Confidential Information only for the Permitted Purpose;
(d) to ensure that any person to whom you pass any Confidential
Information (unless disclosed under paragraph 2(b) below)
acknowledges and complies with the provisions of this letter
as if that person were also a party to it; and
2. Permitted Disclosure
We agree that you may disclose Confidential Information:
(a) to members of the Participant Group and their officers, directors,
employees and professional advisers to the extent necessary for the
Permitted Purpose and to any auditors of members of the Participant
Group provided that these professional advisors and auditors agree
to comply with the provisions of this letter as if they were also a
party to it;
-115-
(b) (i) where required by any court of competent jurisdiction or any
competent judicial, governmental, supervisory or regulatory body,
(ii) where required by the rules of any stock exchange on which the
shares or other securities of any member of the Participant Group
are listed or (iii) where required by the laws or regulations of any
country with jurisdiction over the affairs of any member of the
Participant Group; or
(c) with the prior written consent of us and the Borrower.
3. Notification of Required or Unauthorised Disclosure
You agree (to the extent permitted by law) to inform us as soon as
possible of the full circumstances of any disclosure under paragraph
2(a) or upon becoming aware that Confidential Information has been
disclosed in breach of this letter.
4. Return of Copies
If we so request in writing, you shall return all Confidential
Information supplied to you by us and destroy or permanently erase all
copies of Confidential Information made by you and use all reasonable
endeavours to ensure that anyone to whom you have supplied any
Confidential Information destroys or permanently erases such
Confidential Information and any copies made by them, in each case save
to the extent that you or the recipients are required to retain any
such Confidential Information by any applicable law, rule or regulation
or by any competent judicial, governmental, supervisory or regulatory
body or where the Confidential Information has been disclosed under
paragraph 2(b) above.
5. Continuing Obligations
The obligations in this letter are continuing and, in particular, shall
survive the termination of any discussions or negotiations between you
and us. Notwithstanding the previous sentence, the obligations in this
letter shall cease (a) if you become a party to or otherwise acquire
(by assignment or sub participation) an interest, direct or indirect in
the Facility or (b) twenty four months after you have returned all
Confidential Information supplied to you by us and destroyed or
permanently erased all copies of Confidential Information made by you
(other than any such Confidential Information or copies which have been
disclosed under paragraph 2 above (other than sub-paragraph 2(a)) or
which, pursuant to paragraph 4 above, are not required to be returned
or destroyed).
6. No Representation
You acknowledge and agree that neither we nor any of our officers,
employees or advisers (each a "Relevant Person") (i) make any
representation or warranty, express or implied, as to, or assume any
responsibility for, the accuracy, reliability or completeness of any of
the Confidential Information or any other information supplied by us or
any member of the Group or the assumptions on which it is based or (ii)
shall be under any obligation to update or correct any inaccuracy in
the Confidential Information or any other information supplied by us or
any member of the Group or be otherwise liable to you or any other
person in respect to the Confidential Information or any such
information.
-116-
7. No Waiver; Amendments, etc
This letter sets out the full extent of your obligations of
confidentiality owed to us in relation to the information the subject
of this letter. No failure or delay in exercising any right, power or
privilege under this letter will operate as a waiver thereof nor will
any single or partial exercise of any right, power or privilege
preclude any further exercise thereof or the exercise of any other
right, power or privileges under this letter. The terms of this letter
and your obligations under this letter may only be amended or modified
by written agreement between us.
8. Inside Information
You acknowledge that some or all of the Confidential Information is or
may be price-sensitive information and that the use of such information
may be regulated or prohibited by applicable legislation relating to
insider dealing and you undertake not to use any Confidential
Information for any unlawful purpose.
9. Nature of Undertakings
The undertakings given by you under this letter are given to us and
(without implying any fiduciary obligations on our part) are also given
for the benefit of the Borrower and each other member of the Group. For
the avoidance of doubt, this paragraph 9 would be considered as
stipulation pour autrui as defined in article 1121 of the French Civil
Code.
10. Third party rights ("stipulation pour autrui")
(a) Subject to paragraph 6 and paragraph 9, the terms of this letter
may be enforced and relied upon only by you and us.
(b) Notwithstanding any provisions of this letter, the parties to this
letter do not require the consent of any Relevant Person or any
member of the Group to rescind or vary this letter at any time.
11. Governing Law and Jurisdiction
This letter (including the agreement constituted by your acknowledgement
of its terms) shall be governed by and construed in accordance with the
laws of France and the parties submit to the non-exclusive jurisdiction
of the French courts.
12. Definitions
In this letter (including the acknowledgement set out below):
"Confidential Information" means any information relating to the
Borrower, the Group, and the Facility including, without limitation,
the information memorandum, provided to you by us or any of our
affiliates or advisers, in whatever form, and includes information
given orally and any document, electronic file or any other way of
representing or recording information which contains or is derived or
copied from such information but excludes information that (a) is or
becomes public knowledge other than as a direct or indirect result of
any breach of this letter or (b) is known by you before the date the
information is disclosed to you by us or any of our affiliates or
advisers or is lawfully obtained by you after that date, other than
from a source which, as far as you are aware, has not been obtained in
violation of, and is not otherwise subject to, any obligation of
confidentiality;
-117-
"Group" means the Borrower and each of its holding companies and
subsidiaries and each subsidiary of each of its holding companies;
"Participant Group" means you, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies; and
"Permitted Purpose" means considering and evaluating whether to enter
into the Facility.
Please acknowledge your agreement to the above by signing and returning the
enclosed copy.
Yours faithfully,
To: The Agent
We acknowledge and agree to the above:
[date]
.................................
For and on behalf of
[New Lender]
-118-
SCHEDULE 9
TIMETABLES
PART A
FACILITY A LOANS
Loans in euro Loans in sterling Loans in other
(Brussels time) (London time) currencies (London
time)
Approval as an Optional Currency, if required ___ ___ U - 4
(Clause 4.3 (Conditions relating to Optional
Currencies))
Agent notifies the Company if a currency is ___ ___ U - 4
approved as an Optional Currency in
accordance with Clause 4.3 (Conditions
relating to Optional Currencies)
Delivery of a duly completed Utilisation U - 3 U - 1 U - 3
Request (Clause 5.1 (Delivery of a 11:00 a.m. 10:00 a.m. 10:00 a.m.
Utilisation Request))
Agent determines (in relation to a ___ U - 1 U - 3
Utilisation) the Base Currency Amount of the 11:00 a.m. 11:00 a.m.
Loan, if required under Clause 5.4 (Lenders'
participation)
Agent notifies the Lenders of the Loan in U - 2 U U - 2
accordance with Clause 5.4 (Lenders' 10:00 a.m. 9:00 a.m. London time 9:00 a.m. London
participation) time
Agent receives a notification from a Lender ___ U U - 2
under Clause 10.2 (Unavailability of a 9:30 a.m. 9:30 a.m.
currency)
Agent gives notice in accordance with ___ U U - 2
Clause 10.2 (Unavailability of a currency) 10:30 a.m. 10:30 a.m.
LIBOR or EURIBOR is fixed Quotation Day as of Quotation Day as of Quotation Day as
11:00 a.m. in 11:00 a.m. in of 11:00 a.m.
respect of EURIBOR respect of LIBOR
"U"= date of Utilisation
-119-
"U - X" = X Business Days prior to Utilisation Date.
-120-
PART B
LETTERS OF CREDIT
Delivery of a duly completed Utilisation U-5
Request (Clause 6.2 (Issue of Letters of 10:00 a.m. (London time)
Credit))
Agent notifies the Lenders of the Letter of U-3
Credit in accordance with Clause 6.2 (Issue Noon (12:00 p.m.)
of Letters of Credit) (London time)
"U": date of Utilisation
"U-X": X Business Days prior to Utilisation Date.
-121-
PART C
SWINGLINE
Delivery of a duly completed Utilisation U: 11:00 a.m.
Request (Clause 8.2 (Delivery of a Utilisation (New York time)
Request for Swingline Loans))
Swingline Agent notifies each Swingline Lender U: Noon (12:00 p.m.)
of the amount of its participation in the (New York time)
Swingline Loan under Clause 8.4 (Swingline
Lenders' participation)
Swingline Agent determines Federal Funds Rate U: 1:00 p.m.
under Clause 9.3 (Interest) (New York time)
U: date of Utilisation
-122-
SCHEDULE 10
FORMS OF LETTER OF CREDIT
Letter of Credit to be issued by the Agent on behalf of the Banks
To: [o]
Dear Sirs
Irrevocable Standby Letter of Credit No. [ ]
Re: [name of relevant Borrower [o]] (the "Applicant")
This Clean Irrevocable Standby Letter of Credit (the "Credit") is issued by the
banks whose names are set out in Appendix 1 hereto (the "Issuing Banks", and
each an "Issuing Bank") in favour of the [o] ("Beneficiary") on the following
terms:
1. Subject to the terms hereof, the Issuing Banks shall make payments within
two (2) business days of demand on HSBC France (the "Agent") in accordance
with paragraph 4 below.
2. Upon a demand being made by the Beneficiary pursuant to paragraph 4 below
each Issuing Bank shall pay that proportion of the amount demanded which
is equal to the proportion which the amount specified against its name in
Appendix 1 hereto bears to the aggregate of all the amounts specified
against its name in Appendix 1 hereto, provided that the obligations of
the Issuing Banks under this Credit shall be several and no Issuing Bank
shall be required to pay an amount exceeding the amounts specified against
its name in Appendix 1 hereto and the Issuing Banks shall not be obliged
to make payments hereunder in aggregate exceeding a maximum amount of
[amount in approved currency]. Any payment by an Issuing Bank hereunder
shall be made in U.S. dollars to the Beneficiaries' account specified in
the demand made by the Beneficiary pursuant to paragraph 4 below.
3. This Credit will be effective for successive periods of [o] [days] from
[o] (the "Commencement Date") unless no less than [ninety (90)] days prior
to any anniversary of the Commencement Date the Agent gives you notice
terminating the Credit in which event it shall terminate on that
anniversary date the notice to be sent by registered mail for the
attention of the [o] at the above address.
4. Subject to paragraph 3 above, the Issuing Banks shall pay to the
Beneficiary under this Credit upon presentation of a demand by the
Beneficiary on the Agent at [o] marked for the attention of [o] (and, in
copy, at [o] marked for the attention of [o]) in the form set out in
Appendix 2 hereto the amount specified therein (which amount shall not,
when aggregated with all other amounts paid by the Issuing Banks to the
Beneficiary under this Credit, exceed the maximum amount referred to in
paragraph 2 above).
5. The Agent has signed this Credit as agent for disclosed principals and
accordingly shall be under no obligation to the Beneficiary hereunder.
6. All charges are for the Applicant's account.
-123-
7. Subject to any contrary indication herein, this Credit is subject to the
International Standby Practices - ISP98 (1998 publication) - International
Chamber of Commerce Publication No. 590.
8. This Credit shall be governed by and interpreted in accordance with [o]
and the Issuing Banks hereby irrevocably submit to the jurisdiction of the
[o].
9. Each of the Issuing Banks undertakes with the Beneficiary that demands
made under and in compliance with the terms and conditions of this Credit
shall be duly honoured on presentation.
Yours faithfully
HSBC France
as Agent
for and on behalf of
[Names of all Issuing Banks]
-124-
APPENDIX 1
Issuing Banks' L/C Proportions
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Name and Address of Issuing Bank Amount
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Total value:
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-125-
APPENDIX 2
Form of Demand (U.S. dollars)
[on Beneficiary's letterhead]
Dear Sir/Madam
[Beneficiary]
LETTER OF CREDIT NO.
With reference to the above, we hereby claim payment of [o] U.S. dollars (USD
[o]) the amount of which should be paid to the following account:
[o]
-126-
SCHEDULE 11
U.S. BORROWER REPRESENTATIONS AND WARRANTIES
1. Representations
1.1 ERISA Plans
(a) There are no Multiemployer Plans.
(b) Each Employee Plan and any related trust intended to qualify under
Code Section 401 or 501 has been determined by the IRS to be so
qualified and to the best knowledge of the U.S. Borrower nothing has
occurred which would reasonably be expected to cause the loss of such
qualification.
(c) None of the U.S. Borrower, or any of its subsidiaries, with respect
to any Employee Plan, has failed to make any contribution or pay any
amount due as required by Section 412 of the Code or Section 302 of
ERISA or the terms of any such plan, and all required contributions
and benefits have been paid in accordance with the provisions of each
such plan except to the extent it would not have or would not be
reasonably expected to have a Material Adverse Effect.
(d) There are no pending or, to the knowledge of the U.S. Borrower,
threatened claims, actions or proceedings (other than claims for
benefits in the normal course), relating to any Employee Plan other
than those that in the aggregate, if adversely determined, would have
no Material Adverse Effect.
(e) There exists no Unfunded Pension Liability with respect to any
Employee Plan, except as would not have a Material Adverse Effect.
(f) No ERISA Event has occurred, and there has been no breach of
paragraph 1.2 (Compliance with ERISA) of Schedule 13 (U.S. Borrower
General Undertakings), as a result of which the liability of a U.S.
Borrower or subsidiaries of a U.S. Borrower which are ERISA
Affiliates (either individually or in the aggregate) related to such
ERISA Event or breaches, individually or when aggregated with all
other ERISA Events and all such breaches, would have or would be
reasonably expected to have a Material Adverse Effect.
1.2 Federal Reserve Regulations
(a) No U.S. Borrower is engaged nor will it engage principally, or as one
of its important activities, in the business of owning or extending
credit for the purpose of "buying" or "carrying" any Margin Stock.
(b) None of the proceeds of the Loans or other extensions of credit under
this Agreement will be used, directly or indirectly, for the purpose
of buying or carrying any Margin Stock, for the purpose of reducing
or retiring any Indebtedness that was originally incurred to buy or
carry any Margin Stock or for any other purpose which might cause all
or any Loans or other extensions of credit under this Agreement to be
considered a "purpose credit" within the meaning of Regulation U or
Regulation X.
-127-
(c) No U.S. Borrower or any agent acting on its behalf has taken or will
take any action which might cause the Finance Documents to violate
any regulation of the Board of Governors of the Federal Reserve
System of the United States.
1.3 Investment Companies
No U.S. Borrower is an "investment company" as such term is defined in
the Investment Company Act of 1940 of the United States (the "1940
Act") or otherwise subject to regulation under the 1940 Act, any United
States federal or state statute or regulation restricting or limiting
its ability to incur indebtedness.
-128-
SCHEDULE 12
U.S. BORROWER INFORMATION UNDERTAKINGS
Information Undertakings
ERISA-Related Information
The Company shall supply to the Agent (in sufficient copies for all the Lenders,
if the Agent so requests):
(a) promptly and in any event within 30 days after the U.S. Borrower, any
of its subsidiaries knows or has reason to know that any ERISA Event
has occurred or that an Unfunded Pension Liability that would
reasonably be expected to have a Material Adverse Effect exists, a
written statement of the chief financial officer or other appropriate
officer of the U.S. Borrower describing such ERISA Event or waiver
request and the action, if any, which the U.S. Borrower or its
subsidiaries propose to take with respect thereto and a copy of any
notice filed by or with the PBGC or the IRS pertaining thereto;
(b) promptly and in any event within 10 days after receipt thereof, a copy
of any adverse notice, determination letter, ruling or opinion the U.S.
Borrower or any of its subsidiaries receives from the PBGC, DOL or IRS
with respect to any Employee Plan, other than those which, in the
aggregate, do not have any reasonable likelihood of resulting in a
Material Adverse Effect.
-129-
SCHEDULE 13
U.S. BORROWER GENERAL UNDERTAKINGS
1. General Undertakings
1.1 Federal Reserve Regulations
Each U.S. Borrower will use the Facilities without violating Regulations
T, U and X.
1.2 Compliance with ERISA
No U.S. Borrower shall:
(a) allow, or permit any of its subsidiaries which are ERISA Affiliates
to allow, (i) any Employee Plan with respect to which any U.S.
Borrower or any of its subsidiaries which are ERISA Affiliates may
have any liability to terminate, (ii) any U.S. Borrower or any of its
subsidiaries which are ERISA Affiliates to withdraw from any Employee
Plan or Multiemployer Plan, (iii) any ERISA Event to occur with
respect to any Employee Plan or (iv) any failure to meet the Minimum
Funding Standard (as defined in Section 302 of ERISA and Section 412
of the Code), whether or not waived, to exist involving any of its
Employee Plans, to the extent that any of the events described in
(i), (ii), (iii) or (iv), singly or in the aggregate, could have a
Material Adverse Effect;
(b) allow, or permit any of its subsidiaries which are ERISA Affiliates
to allow, (i) an aggregate amount of Unfunded Pension Liability among
all Employee Plans (taking into account only Employee Plans with
positive Unfunded Pension Liability) or (ii) any potential withdrawal
liability under Section 4201 of ERISA, if the Company or its
subsidiaries which are ERISA Affiliates were to completely or
partially withdraw from all Multiemployer Plans; to the extent that
any of the events described in (i) or (ii) could have a Material
Adverse Effect; or
(c) fail, or permit any of its subsidiaries which are ERISA Affiliates to
fail, to comply in any material respect with ERISA or the related
provisions of the Code, if any such non-compliance, singly or in the
aggregate, would be reasonably likely to have a Material Adverse
Effect.
1.3 Compliance with U.S. Regulations
No U.S. Borrower shall become an "investment company," or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the 1940 Act. Neither the making of any Loan, or the
application of the proceeds or repayment of any Loan by any U.S. Borrower
nor the consummation of the other transactions contemplated by this
Agreement will violate any provision of the 1940 Act or any rule,
regulation or order of the SEC under the 1940 Act. No U.S. Borrower will
directly or indirectly lend, or otherwise make available, any portion of
the proceeds of any Loan to any person who is an "investment company" (as
that term is defined in the ▇▇▇▇ ▇▇▇) that is subject to regulation under
the ▇▇▇▇ ▇▇▇.
-130-
SIGNED ON 15 DECEMBER 2009 IN PARIS IN FIFTEEN (15) ORIGINALS
THE GUARANTOR
AXA
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Tel: ▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Contact: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
THE BORROWERS
AXA
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Tel: ▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Contact: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
AXA FINANCIAL, INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Tel: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Contact: ▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President, Treasurer and
Chief Investment Officer
-131-
AXA FINANCIAL (BERMUDA) LTD
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Tel: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Contact: ▇▇▇▇▇ ▇▇▇▇▇, President, Chief Executive Officer and
Chief Financial Officer
THE AGENT
HSBC FRANCE
By: ▇▇▇▇▇▇▇-▇▇▇▇▇ Hayaud
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇ (▇)▇ ▇▇ ▇▇ ▇▇ 86 / ▇▇▇ (▇)▇ ▇▇ ▇▇ ▇▇ 38
Contact: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ / ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
THE SWINGLINE AGENT
HSBC BANK USA, NATIONAL ASSOCIATION
By: ▇▇▇▇▇▇▇-▇▇▇▇▇ Hayaud
Address: ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
Tel: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Contact: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-132-
THE ARRANGERS
BNP PARIBAS
By: Florent ▇▇▇▇▇▇▇ ▇▇▇▇▇ Ouahmed-Choulet
Address: Financial Institutions Group - ▇ ▇▇▇ ▇'▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇ (▇)▇ ▇▇ ▇▇ ▇▇ 80
Contact: ▇▇▇▇▇▇▇▇ de Rosamel
CALYON
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ La Defense Cedex
Tel: ▇▇▇ (▇)▇ ▇▇ ▇▇ ▇▇ 47
Contact: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
DEUTSCHE BANK AG LONDON BRANCH
By: ▇▇▇▇▇▇▇▇ Pez-▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇
Tel: ▇▇▇ (▇)▇▇▇ ▇▇▇ ▇▇▇▇
Contact: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
HSBC FRANCE
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇ (▇)▇ ▇▇ ▇▇ ▇▇ 09 / ▇▇▇ (▇)▇ ▇▇ ▇▇ ▇▇ 40
Contact: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇
-133-
SOCIETE GENERALE CORPORATE & INVESTMENT BANKING
By: Emmanuelle Emin
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇ (▇)▇ ▇▇ ▇▇ ▇▇ 36
Contact: ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
THE ORIGINAL LENDERS
BNP PARIBAS
By: ▇▇▇▇▇▇▇▇ de Rosamel
Address: Financial Institutions Group - ▇ ▇▇▇ ▇'▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇ (▇)▇ ▇▇ ▇▇ ▇▇ 80
Contact: ▇▇▇▇▇▇▇▇ de Rosamel
CALYON
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ La Defense Cedex
Tel: ▇▇▇ (▇)▇ ▇▇ ▇▇ ▇▇ 47
Contact: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
DEUTSCHE BANK LUXEMBOURG S.A.
By: ▇▇▇▇▇▇▇▇ Pez-▇▇▇▇▇▇▇
Address: ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇▇ ▇▇▇▇▇-▇▇▇ / ▇▇▇▇ ▇▇▇▇▇-▇▇▇
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇▇ / ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
HSBC FRANCE
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇ (▇)▇ ▇▇ ▇▇ ▇▇ 09 / ▇▇▇ (▇)▇ ▇▇ ▇▇ ▇▇ 40
Contact: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇
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SOCIETE GENERALE
By: Emmanuelle Emin
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇ (▇)▇ ▇▇ ▇▇ ▇▇ 36
Contact: ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
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