EXHIBIT 3
CONFORMED COPY
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FIRST SUPPLEMENTAL INDENTURE
between
AXA,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
Dated as of December 15, 2000
to the Indenture between
AXA,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
Dated as of December 15, 2000
$900,000,000 initial aggregate principal amount of 8.60% Subordinated Notes
due December 15, 2030
[POUND]325,000,000 initial aggregate principal amount of 7.125% Subordinated
Notes due December 15, 2020
[EURO]650,000,000 initial aggregate principal amount of 6.75%
Subordinated Notes due December 15, 2020.
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS OF TERMS .......................................2
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE SUBORDINATED NOTES
SECTION 2.01. DESIGNATION AND PRINCIPAL AMOUNT ...........................8
SECTION 2.02. MATURITY ...................................................9
SECTION 2.03. FORM AND PAYMENT; MINIMUM TRANSFER RESTRICTION .............9
SECTION 2.04. PAYMENT OF INTEREST ........................................9
SECTION 2.05. REDENOMINATION IN EURO ....................................12
ARTICLE 3
REDEMPTION
SECTION 3.01. OPTIONAL REDEMPTION .......................................14
SECTION 3.02. OPTIONAL REDEMPTION DUE TO CHANGES IN TAX TREATMENT .......14
SECTION 3.03. MANDATORY REDEMPTION IF PROHIBITED FROM PAYING
ADDITIONAL AMOUNTS .................................................16
SECTION 3.04. OPTIONAL REDEMPTION DUE TO A REGULATORY EVENT .............16
ARTICLE 4
OPTIONAL DEFERRAL OF INTEREST PAYMENTS
SECTION 4.01. OPTIONAL INTEREST PAYMENT DATE ............................17
ARTICLE 5
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT .........................................19
SECTION 5.02. DEFAULTS ..................................................20
SECTION 5.03. APPLICATION OF MONEY COLLECTED ............................21
ARTICLE 6
COVENANTS OF THE ISSUER
SECTION 6.01. AGENTS ....................................................22
SECTION 6.02. OFFICES FOR PAYMENT .......................................28
SECTION 6.03. PAYMENTS ..................................................29
SECTION 6.04. ADDITIONAL AMOUNTS.........................................30
ARTICLE 7
SUBORDINATION
SECTION 7.01. AGREEMENT TO SUBORDINATE ..................................32
ARTICLE 8
FORM OF SUBORDINATED NOTES
SECTION 8.01. FORM OF SUBORDINATED NOTE .................................32
ARTICLE 9
ORIGINAL ISSUE OF SUBORDINATED NOTES
SECTION 9.01. ORIGINAL ISSUE OF SUBORDINATED NOTES ......................32
ARTICLE 10
SATISFACTION AND DISCHARGE
SECTION 10.01. SATISFACTION AND DISCHARGE ...............................33
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. RATIFICATION OF BASE INDENTURE; FIRST SUPPLEMENTAL
INDENTURE CONTROLS ...........................................33
SECTION 11.02. TRUSTEE NOT RESPONSIBLE FOR RECITALS .....................33
SECTION 11.03. GOVERNING LAW ............................................33
SECTION 11.04. SEVERABILITY .............................................34
SECTION 11.05. COUNTERPARTS..............................................34
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FIRST SUPPLEMENTAL INDENTURE dated as of December 15, 2000 (the "FIRST
SUPPLEMENTAL INDENTURE") between AXA, a societe anonyme a directoire et conseil
de surveillance organized under the laws of France (the "COMPANY"), having its
registered office at ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ and The Bank of
New York, a New York banking corporation having its Corporate Trust Office at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, as trustee (the "TRUSTEE") under
the Indenture dated as of December 15, 2000 between the Company and the Trustee,
as from time to time supplemented or amended (the "BASE INDENTURE" and together
with this First Supplemental Indenture, the "INDENTURE"). In addition, The Bank
of New York, through its New York and London branches, has agreed to act as
paying agent and calculation agent hereunder.
WHEREAS, the Company and the Trustee executed and delivered the Base
Indenture to provide for the future issuance of the Company's debt securities
(the "DEBT SECURITIES") to be issued from time to time in one or more series as
might be determined by the Company under the Indenture, in an unlimited
aggregate principal amount, which may be authenticated and delivered as provided
in the Base Indenture;
WHEREAS, Section 3.01 of the Base Indenture permits the terms of any
series of Debt Securities to be established in an indenture supplemental to the
Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Company
may issue Debt Securities now and additional Debt Securities of the same or
different series at later dates under the Base Indenture, as supplemented by
the Company, and the Company desires to initially issue $900,000,000
aggregate principal amount of 8.60% Subordinated Notes due December 15, 2030
(such notes whether issued now or at a later date, the "U.S. DOLLAR NOTES"),
[POUND]325,000,000 aggregate principal amount of 7.125% Subordinated Notes
due December 15, 2020 (such notes whether issued now or at a later date, the
"STERLING NOTES") and [EURO]650,000,000 aggregate principal amount of 6.75%
Subordinated Notes due December 15, 2020 (such notes whether issued now or at
a later date, the "EURO NOTES") (all collectively referred to as the
"SUBORDINATED NOTES"), the form and substance of such Subordinated Notes and
the terms, provisions and conditions thereof to be set forth as provided in
the Base Indenture as supplemented by this First Supplemental Indenture;
WHEREAS, pursuant to Section 3.01 of the Base Indenture, the Company
desires to appoint The Bank of New York, through its New York and London
branches, and BNP Paribas Luxembourg to act as Paying Agents with respect to the
Subordinated Notes and The Bank of New York as calculation agent with respect to
the Subordinated Notes;
WHEREAS, each of the U.S. Dollar Notes, the Sterling Notes and the Euro
Notes shall be treated as a separate series of Debt Securities in accordance
with the terms of the Indenture and for all purposes under the Indenture;
WHEREAS, the Company has duly authorized the execution and delivery of
this First Supplemental Indenture and requested that the Trustee execute and
deliver this First Supplemental Indenture, and all requirements necessary to
make this First Supplemental Indenture a valid instrument in accordance with its
terms have been done.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Subordinated Notes by the Holders thereof, and for the purpose of setting forth,
as provided in the Indenture, the form and substance of the Subordinated Notes
and the terms, provisions and conditions thereof, the Company covenants and
agrees with the Trustee and the Paying Agents as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS OF TERMS. For all purposes of the Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) a term defined in the Base Indenture and not otherwise defined
herein has the same meaning when used in this First Supplemental Indenture;
(b) unless otherwise specified, a reference to a Section or Article is
to a Section or Article of this First Supplemental Indenture;
(c) headings are for convenience of reference only and do not affect
interpretation; and
(d) the following terms have the meanings given to them in this Section
1.01(d) and shall have the meaning set forth below for purposes of this First
Supplemental Indenture and the Base Indenture as it relates to the series of
Subordinated Notes created hereunder.
"ADDITIONAL AMOUNTS" has the meaning specified in Section 6.04.
"ADDITIONAL INTEREST" has the meaning specified in Section 4.01(d).
"ADJUSTED COMPARABLE YIELD" means, in the case of the U.S. Dollar
Notes, the U.S. Treasury security selected by the Calculation Agent with the
prior
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written consent of the Company as having a maturity comparable to the remaining
term of the U.S. Dollar Notes that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
U.S. Dollar Notes and, in the case of the Sterling Notes, the U.K. government
gilt-edged security selected by the Calculation Agent with the prior written
consent of the Company having a maturity comparable to the remaining term of the
Sterling Notes.
"AGENT" has the meaning specified in Section 6.01.
"ARREARS OF INTEREST" has the meaning specified in Section 4.01(b).
"BASE INDENTURE" has the meaning set forth in the first paragraph of
this First Supplemental Indenture.
"CALCULATION AGENT" means The Bank of New York or such other
calculation agent as shall be appointed by the Company from time to time.
"DEBT SECURITIES" has the meaning set forth in the recitals of this
First Supplemental Indenture. "Default" has the meaning set forth in Section
5.02.
"DEFERRAL NOTICE" has the meaning set forth in Section 4.01(a).
"DEFERRED PAYMENT" has the meaning set forth in Section 4.01(a).
"DEFERRED PAYMENT DATE" has the meaning set forth in Section 4.01(a).
"DEFERRAL PERIOD" has the meaning set forth in Section 4.01(a).
"DEFERRED RECORD DATE" has the meaning set forth in Section 4.01(b).
"ESTABLISHED RATE" means the irrevocably fixed commission rate for the
conversion of Sterling (including compliance with rules relating to rounding in
accordance with applicable European Union regulations) into euro adopted by the
Council of the European Union pursuant to Article 109(1)(4) of the Treaty
establishing the European Community, as amended by the Treaty on European Union;
"EURO BUSINESS DAY" means any day (other than a Saturday or a Sunday)
which is a TARGET Settlement Day.
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"EURO NOTES" has the meaning set forth in the recitals of this First
Supplemental Indenture.
"EURO REFERENCE BANKS" means the principal Euro-zone office of four
major banks in the Euro-zone interbank market selected by the Calculation Agent
with the prior written consent of the Company.
"EURO REFERENCE RATE" has the meaning set forth in Section 2.04(d).
"EURO-ZONE" means the region comprised of member states of the European
Union that adopt the single currency in accordance with the treaty establishing
the European Community (signed in Rome on March 25, 1957), as amended by the
Treaty on European Union (signed in Maastricht on February 7, 1992).
"EVENT OF DEFAULT" has the meaning set forth in Section 5.01.
"FIXED RATE INTEREST PERIOD" has the meaning set forth in Section
2.04(b).
"FIXED RATE NOTES" has the meaning set forth in Section 2.04(b).
"FLOATING INTEREST PAYMENT DATE" has the meaning set forth in Section
2.04(b).
"FLOATING INTEREST PERIOD" has the meaning set forth in Section
2.04(b).
"FLOATING RATE EURO NOTES" has the meaning set forth in Section
2.04(b).
"INTEREST" as used herein shall include the payments of any Arrears of
Interest, Additional Interest and Additional Amounts, as applicable, to the
extent that, in such context, Arrears of Interest, Additional Interest or
Additional Amounts are, were or would be payable in respect thereof and as if
express mention of the payment of Arrears of Interest, Additional Interest and
Additional Amounts, if applicable, were made in any provisions hereof where such
express mention is not made.
"INTEREST DETERMINATION DATE" has the meaning set forth in Section
2.04(d).
"INTEREST PERIOD" has the meaning set forth in Section 2.04(b).
"INTEREST RATE" has the meaning set forth in Section 2.04(b).
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"ISSUE DATE" means December 15, 2000.
"MAKE-WHOLE AMOUNT" means the amount calculated by the Calculation
Agent in consultation with the Company and equal to the sum of the Present
Values of the remaining scheduled payments of principal and interest to Maturity
in the case of the U.S. Dollar Notes and the Sterling Notes.
"MANDATORY INTEREST PAYMENT DATE" when used with respect to
Subordinated Notes of any series, means the Interest Payment Date for such
series of Subordinated Notes following the date, during any Deferral Period, on
which
(i) the Company declares a dividend distribution on
any class of its share capital;
(ii) the Trustee receives a written notice from the
Company confirming that (A) no Regulatory Intervention is or
will be continuing on such Interest Payment Date for such
series of Subordinated Notes and (B) the Company has declared
a dividend distribution on any class of the Company's share
capital at the annual general meeting of the Company's
shareholders immediately preceding the occurrence of such
Regulatory Intervention; or
(iii) the Company commences, and does not abandon, a
public tender offer to redeem, purchase or acquire any of its
ordinary shares, which ordinary shares shall be cancelled on
completion of such tender offer.
"MATURITY DATE" means, with respect to the U.S. Dollar Notes, December
15, 2030, with respect to the Sterling Notes, December 15, 2020 and with respect
to the Euro Notes, December 15, 2020, or any other date on which the principal
of such Subordinated Note becomes due and payable as therein or herein provided,
whether by call for redemption, winding-up of the Company or otherwise.
"OPTIONAL INTEREST PAYMENT DATE" means each Interest Payment Date to
which either of the following circumstances applies:
(i) the Trustee has received from the Company a
Deferral Notice confirming that (A) a Regulatory Intervention
has occurred and such Regulatory Intervention is continuing on
such Interest Payment Date and (B) the Company has not
declared a dividend distribution on any class of the Company's
share capital since the date on which such Regulatory
Intervention occurred; or
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(ii) the Company did not declare a dividend
distribution on any class of the Company's share capital at
the annual general meeting of the Company's shareholders
immediately prior to such Interest Payment Date.
"PAYING AGENT" has the meaning set forth in Section 6.01.
"PRESENT VALUE" means the value determined by the Calculation Agent by
discounting the remaining principal and interest payments to Maturity on a
semiannual basis, in the case of the U.S. Dollar Notes, and on an annual basis,
in the case of the Sterling Notes, in each case (assuming a 360-day year
consisting of twelve 30-day months) using the Adjusted Comparable Yield plus 75
basis points. If the Company shall redeem the U.S. Dollar Notes or the Sterling
Notes pursuant to Section 3.02(a)(ii) or Section 3.04, prior to 18 months after
the Issue Date of such series of Subordinated Notes, the amount will be adjusted
using the Adjusted Comparable Yield plus 1.500% for the U.S. Dollar Notes and
1.225% for the Sterling Notes.
"PRINCIPAL" means, as the context may require, principal and premium,
if any, as applicable.
"PRINCIPAL SUBSIDIARY" means any consolidated subsidiary of the Company
engaged in the insurance business and subject accordingly to regulation as such,
and whose contribution to the consolidated gross written premiums or
consolidated gross technical reserves of the Company represented 5% or more of
the consolidated gross written premiums or consolidated gross technical
reserves, respectively, as shown in the most recent audited consolidated
financial statements of the Company as of the relevant Interest Payment Date.
"REDENOMINATION DATE" means any Interest Payment Date for the Sterling
Notes pursuant to their terms that falls on or after the date on which the
United Kingdom becomes a participating member state and the euro is substituted
for Sterling as its national currency.
"REGULAR RECORD DATE" has the meaning set forth in Section 2.04(c).
"REGULATORY EVENT" means, (a) in the event that the Company is subject
to consolidated regulatory supervision by the Relevant Supervisory Authority,
including after a Successor Entity has assumed the Company's obligations under
the Subordinated Notes and the Company has executed a guarantee in accordance
with Section 8.03 of the Base Indenture, and the Company is not permitted:
(i) under the applicable rules and regulations
adopted by the Relevant Supervisory Authority or an official
application or interpretation of those rules and regulations,
including a decision of any court or tribunal, to treat at the
time such rules and regulations are implemented the
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entire aggregate principal amount of any series of
Subordinated Notes as regulatory capital for the purposes of
the determination of the solvency margin or capital adequacy
ratios, or
(ii) as a result of any change made by the Relevant
Supervisory Authority to the rules and regulations as
originally implemented or any change in an official
application or interpretation of those rules and regulations,
including a decision of any court or tribunal, to treat at the
time such change is made the entire aggregate principal amount
of any series of Subordinated Notes as regulatory capital for
the purposes of the determination of the solvency margin or
capital adequacy ratios, or
(b) in the case of the assumption of the obligations under the
Indenture with respect to any series of Subordinated Notes by a Successor
Entity in accordance with Section 8.03 of the Base Indenture, such Successor
Entity is an insurance company or an insurance holding company and at the
time of such assumption such Successor Entity is permitted to treat the
entire aggregate principal amount of such series of Subordinated Notes as
regulatory capital for the purposes of the determination of its solvency
margin or capital adequacy ratios and, as a result of any change made by the
Relevant Supervisory Authority to the rules and regulations in effect at the
time of such assumption or any change in an official application or
interpretation of those rules and regulations, including a decision of any
court or tribunal, such Successor Entity is not permitted to treat the entire
aggregate principal amount of such series of Subordinated Notes as regulatory
capital for the purposes of the determination of its solvency margin or
capital adequacy ratios.
For the avoidance of doubt, in the case of the assumption of the
obligations under the Indenture by a Successor Entity in accordance with
Section 8.03 of the Base Indenture, any Regulatory Event with respect to a
Successor Entity may be in addition to a separate Regulatory Event with
respect to the Company, as guarantor.
"REGULATORY INTERVENTION" means (i) in respect of the Company, a
request to the Company from any Relevant Supervisory Authority to restore either
its applicable minimum solvency margins or capital adequacy levels; or (ii) in
respect of a Principal Subsidiary, a request to such Principal Subsidiary from
its Relevant Supervisory Authority to restore either its applicable minimum
solvency margins or capital adequacy levels.
"RELEVANT SUPERVISORY AUTHORITY" means any relevant regulator having
jurisdiction over (i) the Company, in the event the Company is regulated on a
consolidated basis and is required to comply with any applicable minimum
solvency margins or capital adequacy levels, or (ii) a Principal Subsidiary
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"STERLING" means the lawful currency of the United Kingdom, as of the
date hereof.
"STERLING NOTES" has the meaning set forth in the recitals of this
First Supplemental Indenture.
"SUBORDINATED NOTES" has the meaning set forth in the recitals of this
First Supplemental Indenture.
"TARGET SETTLEMENT DAY" means any day on which the TARGET System is
operating.
"TARGET SYSTEM" means the Trans-European Automated Real-Time Gross
Settlement Express Transfer System or any successor system thereto.
"TAXES" has the meaning set forth in Section 6.04.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor trustee shall have become such
pursuant to the applicable provisions of the Base Indenture, and thereafter
"Trustee" shall mean the Person who is then the Trustee thereunder, and if at
any time there is more than one such Person, "Trustee" shall mean and include
each such Person; and "Trustee" as used with respect to the Subordinated
Notes of any series shall mean the Trustee with respect to the Subordinated
Notes of such series.
"U.S. DOLLAR NOTES" has the meaning set forth in the recitals of this
First Supplemental Indenture.
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE SUBORDINATED NOTES
SECTION 2.01. DESIGNATION AND PRINCIPAL AMOUNT. The following series of
Subordinated Notes are hereby authorized:
(i) Securities designated the "U.S. Dollar Notes," initially
to be issued in the aggregate principal amount of $900,000,000;
(ii) Securities designated the "Sterling Notes," initially to
be issued in the aggregate principal amount of [POUND]325,000,000; and
(iii) Securities designated the "Euro Notes," initially to be
issued in the aggregate principal amount of [EURO]650,000,000.
8
SECTION 2.02. MATURITY. The principal of the Subordinated
Notes of each series shall be due and payable on the Maturity Date with
respect to such series.
SECTION 2.03. FORM AND PAYMENT; MINIMUM TRANSFER RESTRICTION.
(a) The Subordinated Notes shall be issued as registered
Securities in book-entry global form and shall not be exchangeable for
definitive securities except as provided in Section 3.05 of the Base
Indenture. The Subordinated Notes shall not be exchangeable at any time
for bearer securities. The Subordinated Notes will be issued as global
notes registered in the name of DTC or its nominee, in the case of the
U.S. Dollar Notes, and in the name of a common depositary, or its
nominee, for Clearstream, Luxembourg and Euroclear, in the case of the
Euro Notes and Sterling Notes. Book-entry interests in a global note
may be held through organizations that participate, directly or
indirectly, in the DTC, Clearstream, Luxembourg and Euroclear systems,
as applicable. Book-entry interests in the U.S. Dollar global notes and
all transfers relating to the U.S. Dollar global notes will be
reflected in the book-entry records of DTC. Book-entry interests in the
Euro and Sterling global notes and all transfers relating to the Euro
and Sterling global notes will be reflected in the book-entry records
of Euroclear and Clearstream, Luxembourg.
SECTION 2.04. PAYMENT OF INTEREST. (a) Subject to Section
4.01(a), if applicable, interest on any series of Subordinated Notes
which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date, on any Optional Interest Payment Date where the
Company has not delivered a Deferral Notice or on any date on which the
Company pays any accrued Arrears of Interest and Additional Interest in
accordance with Section 4.01(c), shall be paid, in the case of
registered Subordinated Notes, to the Person in whose name that
Subordinated Note (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date or Deferred Record
Date, as the case may be, for such interest, including through a Paying
Agent by wire-transfer of same-day funds to the Holder or, at the
option of the Company, by check mailed to the address of the Holder as
it appears in the Debt Security Register.
(b) INTEREST RATES.
(i) The U.S. Dollar Notes will bear interest from the Issue
Date to the Maturity Date at a fixed rate per annum equal to 8.60%.
(ii) The Sterling Notes will bear interest from the Issue Date
to the Maturity Date at a fixed rate per annum equal to 7.125%.
(iii) The Euro Notes will initially bear interest from the
Issue Date to December 15, 2010 at a fixed rate per annum equal to
6.75%. After
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December 15, 2010 until the Maturity Date, the Euro Notes will convert
to floating rate notes which will bear interest at a floating rate
equal to the Euro Reference Rate plus a margin of 2.20%, calculated on
the relevant Interest Determination Date.
(iv) The interest rates with respect to the U.S. Dollar Notes,
Sterling Notes and Euro Notes are herein collectively referred to as
the "INTEREST RATE". The U.S. Dollar Notes, Sterling Notes and Euro
Notes (up to December 15, 2010) are herein collectively referred to as
the "FIXED RATE NOTES". The Euro Notes from and after December 15, 2010
are herein referred to as the "FLOATING RATE EURO NOTES". The period
from and including the Issue Date to, but excluding, the first Interest
Payment Date with respect to a series of Fixed Rate Notes, and each
successive period from, and including, an Interest Payment Date to, but
excluding, the next successive Interest Payment Date with respect to
such series, is herein referred to as a "FIXED RATE INTEREST PERIOD."
Any Interest Payment Date after December 15, 2010 with respect to the
Euro Notes is hereinafter referred to as a "FLOATING INTEREST PAYMENT
DATE". The period from and including December 15, 2010, to, but
excluding, the following Interest Payment Date with respect to the
Floating Rate Euro Notes and each successive period from, and
including, a Floating Interest Payment Date to, but excluding, the next
succeeding Floating Interest Payment Date with respect to such series
is called a "FLOATING INTEREST PERIOD" and together with the Fixed Rate
Interest Periods, an "INTEREST PERIOD."
(c) INTEREST PAYMENT DATES. Interest on the U.S. Dollar Notes will be
payable semiannually in arrears on June 15 and December 15 of each year,
commencing on June 15, 2001, to the persons in whose names the notes are
registered at the close of business on the applicable preceding June 1 and
December 1.
Interest on the Sterling Notes will be payable annually in arrears on
December 15 of each year, commencing on December 15, 2001, to the persons in
whose name the notes are registered at the close of business on the applicable
preceding December 1.
Interest on the Euro Notes will be payable annually in arrears on
December 15 of each year, commencing on December 15, 2001 until December 15,
2010, to the persons in whose names the notes are registered at the close of
business on the applicable preceding December 1. After December 15, 2010,
interest on the Euro Notes will be payable quarterly in arrears on March 15,
June 15, September 15 and December 15 of each year, to the persons in whose name
the notes are registered at the close of business on the applicable preceding
March 1, June 1, September 1 and December 1.
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The dates in this Section 2.04(c) with which reference is made to
determine the Persons entitled to receive interest on the Subordinated Notes of
a series are collectively referred to as "REGULAR RECORD DATES". If any Interest
Payment Date or Maturity Date would otherwise fall on a day which is not a
Business Day, it shall be postponed to the next day which is a Business Day
unless, with respect to the Floating Rate Euro Notes only, such next Business
Day would then fall into the next calendar month, in which event the Interest
Payment Date or Maturity Date of any series of Floating Rate Euro Notes shall be
brought forward to the immediately preceding Business Day.
(d) CALCULATION OF THE EURO REFERENCE RATE. The Euro Reference Rate
will be determined by the Calculation Agent as at or about 11:00 a.m. (Brussels
time) on the Interest Determination Date in question. "INTEREST DETERMINATION
DATE" means the second Euro Business Day before the commencement of the Floating
Interest Period for which the rate will apply. The "EURO REFERENCE RATE" will be
determined as follows:
(i) The Euro Reference Rate will be the offered rate,
expressed as an annual rate, for three (3) month Euro deposits
commencing on the first date of the relevant interest period
which appears, for information purposes only, at or about
11:00 a.m. (Brussels time) on the display designated as page
"248" on Bridge/Telerate (or such other page or service as may
replace it for the purpose of displaying the European
interbank offered rate).
(ii) If the Euro Reference Rate cannot be ascertained
as described in subparagraph (i) above, the Calculation Agent
will request each of the Euro Reference Banks to provide the
Calculation Agent with its offered quotation to prime banks in
the Euro-zone interbank market for Euro deposits for a period
of three (3) months commencing on the first day of the
relevant Floating Interest Period, at or about 11:00 a.m.
(Brussels time) on the Interest Determination Date. The Euro
Reference Rate will be the arithmetic mean (rounded upwards if
necessary to the nearest fifth decimal place with 0.000005
being rounded upwards) of the offered quotations as
established by the Calculation Agent.
(iii) If on any Interest Determination Date the Euro
Reference Rate is being calculated in accordance with
subparagraph (ii) above, and only two (2) or three (3) of the
Euro Reference Banks provided offered quotations, the Euro
Reference Rate shall be calculated in accordance with the
provisions of subparagraph (ii) above, based on the offered
quotations of those Euro Reference Banks providing offered
quotations.
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(iv) If on any Interest Determination Date the Euro
Reference Rate is being calculated in accordance with
subparagraph (ii) above, and less than two (2) Euro Reference
Banks provide offered quotations, the Euro Reference Rate
shall be the annual rate which the Calculation Agent
determines to be the sum of the margin and the arithmetic mean
(rounded upwards if necessary to the nearest fifth decimal
place with 0.000005 being rounded upwards) of the Euro lending
rates quoted by major banks in the Euro-zone (selected by the
Calculation Agent with the prior written consent of the
Company and being at least two (2) in number) at or about
11:00 a.m. (Brussels time) on the Interest Determination Date
in question for loans in Euro to leading European banks for a
period of three (3) months commencing on the first day of the
relevant Floating Interest Period, except that if the banks so
selected by the Calculation Agent are not quoting on such
Interest Determination Date, the Interest Rate for the
relevant Floating Interest Period shall be the Interest Rate
in effect for the last preceding Floating Interest Period to
which subparagraphs (i), (ii) or (iii) shall have applied.
(e) CALCULATION OF INTEREST. With respect to the U.S. Dollar Notes and
the Sterling Notes, if interest is required to be calculated for any period less
than a year, it will be calculated based on a 360-day year consisting of twelve
30-day months.
With respect to the Euro Notes, until December 15, 2010, if interest is
required to be calculated for any period of less than a year, it will be
calculated on the basis of the actual number of days elapsed since the Issue
Date of such notes or, if more recent, the last Interest Payment Date divided by
365 (or, if any portion of this period falls in a leap year, the sum of (A) the
actual number of days in that portion of the period falling in a leap year
divided by 366 and (B) the actual number of days in that portion of the period
falling in a non-leap year divided by 365).
With respect to the Floating Rate Euro Notes, if interest is required
to be calculated for any period of less than a year, it will be calculated on
the basis of the actual number of days elapsed since the Issue Date of such
notes or, if more recent, the last Interest Payment Date divided by 360.
SECTION 2.05. REDENOMINATION IN EURO. (a) The Sterling Notes may be
redenominated in euro at the option of the Company, and without the consent of
the Holders of the Sterling Notes, upon giving not less than 30 days' notice to
the Trustee and Holders of the Sterling Notes, with effect on and from the
Redenomination Date specified in such notice; PROVIDED, HOWEVER, that the
12
Company shall in any event deliver such notice specifying a Redenomination Date
no later than the last day on which Sterling is legal tender in the United
Kingdom.
(b) In the event that the Company elects to redenominate the Sterling
Notes pursuant to Section 2.05(a), the redenomination shall have effect as
follows:
(i) with effect on and from the Redenomination Date, each
[POUND]1,000 in aggregate principal amount of the Sterling Notes will
be deemed to be denominated in such amount of euro as is equivalent to
its denomination in Sterling at the Established Rate and specified in
the notice required by Section 2.05(a), subject to such provisions
(if any) as to rounding up or down (and payments in respect of
fractions consequent on rounding) as the Company may decide, with the
prior written approval of the Trustee;
(ii) on and after the Redenomination Date, all payments in
respect of the Sterling Notes will be made solely in euro, including
payments of interest in respect of the Interest Period commencing
immediately before the Redenomination Date, as though references in the
Sterling Notes and this First Supplemental Indenture to Sterling were
to euro; and
(iii) with effect on and from the Redenomination Date, such
changes shall be made to the Indenture and any agency agreement with
any agent not a party to the Indenture as the Company may decide, with
the prior written approval of the Trustee and (in the case of any
agency agreement) each Paying Agent party to such agreement, which
paying agent shall be specified in the notice required by Section
2.05(a), to conform the Indenture and any relevant agency agreement to
conventions then applicable to the issue, terms and conditions or
trading of instruments denominated in euro or to enable the Sterling
Notes to be consolidated with one or more issues of other Subordinated
Notes issued by the Company, if any, whether or not originally
denominated in Sterling or euro.
(c) Notwithstanding Section 2.05(a), the Sterling Notes may, at the
option of the Company, and without the consent of the Holders of the Sterling
Notes, upon not less than 30 days' notice to the Trustee and the Holders of the
Sterling Notes, be exchangeable for Subordinated Notes expressed to be
denominated in euro in accordance with such arrangements as the Company may
decide with the prior written approval of the Trustee, with effect on and from
the Redenomination Date or such later Interest Payment Date under the Sterling
Notes as the Company may specify in such notice.
13
(d) Except as otherwise provided in Section 2.05(c), the circumstances
and consequences described in this Section 2.05 alone do not entitle the
Company, the Trustee or any Holder of Sterling Notes to (i) early redemption,
rescission, notice or repudiation of the terms and conditions of the
Subordinated Notes or the Indenture or (ii) raise other defenses or request any
compensation claim or affect any other obligation of the Company under the
Sterling Notes or the Indenture based on redenomination of the Sterling Notes
and the Indenture into euro.
ARTICLE 3
REDEMPTION
SECTION 3.01. OPTIONAL REDEMPTION. Except as provided in this Article
Three and in Article Eleven of the Base Indenture, the Subordinated Notes may
not be redeemed by the Company prior to maturity.
The Euro Notes may be redeemed in whole or in part, at the option of
the Company and without the consent of the Holders of the Euro Notes or the
Trustee, at any time on and after December 15, 2010 on any Interest Payment Date
upon giving not less than 30 nor more than 60 days' notice to the Holders of
Euro Notes at a redemption price equal to 100% of the aggregate principal amount
thereof together with any accrued interest to, but excluding, the date fixed for
redemption. In the event that the Euro Notes are redeemed in part pursuant to
this Section 3.01, the Trustee shall select the Euro Notes of such series to be
redeemed on a pro-rata basis, by lot or by such other method as it deems fair
and appropriate.
SECTION 3.02. OPTIONAL REDEMPTION DUE TO CHANGES IN TAX TREATMENT. (a)
The Subordinated Notes of any series will be redeemable as a whole at the option
of the Company upon not less than 30 nor more than 60 days' notice, on any date,
at a redemption price equal to 100% of the principal amount of such Subordinated
Notes together with accrued but unpaid interest in respect of such series of
Subordinated Notes to, but excluding, the date fixed for redemption or, in the
case of U.S. Dollar Notes and Sterling Notes redeemed pursuant to subparagraph
(a)(ii) below, at a redemption price equal to the greater of (x) 100% of their
aggregate principal amount plus accrued but unpaid interest to, but excluding,
the date fixed for redemption, or (y) a Make-Whole Amount, if at any time:
(i) the Company shall determine that as a result of a change
in or amendment to the laws or regulations or rulings of a Taxing
Jurisdiction, including any treaty to which it is a party, or a change
in an official application or interpretation of those laws or
regulations or rulings, including a decision of any court or tribunal,
which becomes effective on or after December 12, 2000 (or, in the case
of any Successor Person or
14
Successor Entity, becomes effective on or after the date of that
entity's assumption of the Company's obligations or the assumption of
the Successor Entity's obligations in the case of a merger, conveyance,
transfer or lease in accordance with Section 8.01 of the Base
Indenture), in making any payments of principal of or interest on such
Subordinated Notes the Company has paid or will or would on the next
Interest Payment Date be required to pay Additional Amounts and
notwithstanding whether the payment of Additional Amounts is legal or
not under French law (or the law of a Successor Entity or Successor
Person jurisdiction), or
(ii) on the next Interest Payment Date the Company would not
be entitled to claim a deduction in respect of the payments of interest
on any particular series of Subordinated Notes in computing its French
(or, in the case of a Successor Person or Successor Entity, the
relevant successor jurisdiction) taxation liabilities;
PROVIDED, HOWEVER, in the case of a Successor Entity or any Successor Person to
a Successor Entity, such redemption will only be permitted pursuant to Section
3.02(a)(ii) if such Successor Entity or such Successor Person would not be
entitled to claim a deduction in respect of such interest payments as a result
of a change in or amendment to the laws or regulations or rulings in the
Successor Entity or Successor Person's Taxing Jurisdiction, including any treaty
to which it is a party, or a change in an official application or interpretation
of those laws or regulations or rulings, including a decision of any court or
tribunal, which becomes effective on or after the date the Successor Entity
assumes the Company's obligations, or the Successor Person assumes the Successor
Entity's obligations; provided that the sole purpose of the assumption by such
Successor Entity or any Successor Person to a Successor Entity of the
obligations under the Indenture would not be to permit redemption of the
Subordinated Notes.
(b) The Company will not give a notice of redemption earlier than 60
days prior to the earliest date on which the Company would be obligated to
pay Additional Amounts under Section 6.04. The Company will also pay to each
Holder, or make available for payment to each Holder, of such Subordinated
Notes on the redemption date, any Additional Amounts resulting from the
payment of such redemption price.
(c) Notwithstanding Section 3.02(a) above, any Successor Person to
the Company will have the option to redeem any series of Subordinated Notes
where the Company, or the Successor Person to the Company pursuant to a
transaction in accordance with Section 8.01 of the Base Indenture, is
required to pay Additional Amounts upon or after any merger, conveyance,
transfer or lease pursuant to Section 8.01 of the Base Indenture. The Company
or the Successor Person is not required to use reasonable measures to avoid
the obligation to pay
15
Additional Amounts in this situation. The provisions of this paragraph do not
apply to a merger, conveyance, transfer or lease by a Successor Entity.
In any case where the Company (or any Successor Entity or Successor
Person) shall determine that as a result of any change in the official
application or interpretation of any laws or regulations it is entitled to
redeem Subordinated Notes of any series, the Company, the Successor Entity or
Successor Person, as the case may be, shall be required to deliver to the
Trustee prior to the giving of any notice of redemption a written Opinion of
Counsel in a form reasonably satisfactory to the Trustee confirming that the
Company, the Successor Entity or Successor Person, as the case may be, is
entitled to exercise its right of redemption.
SECTION 3.03. MANDATORY REDEMPTION IF PROHIBITED FROM PAYING ADDITIONAL
AMOUNTS. If French law or regulation (or, the law or regulation of the
applicable Taxing Jurisdiction) prohibits the Company (or any Successor Person
or Successor Entity) from paying Additional Amounts on any series of
Subordinated Notes notwithstanding the undertaking to pay such Additional
Amounts pursuant to Section 6.04, then the Company (or any Successor Person or
Successor Entity) shall (subject to any prior authorization of a Relevant
Supervisory Authority) redeem all of the Subordinated Notes of the relevant
series then outstanding at 100% of their aggregate principal amount plus accrued
but unpaid interest to, but excluding, the date fixed for such redemption, upon
giving not less than seven nor more than thirty days' notice to the Holders,
provided that, to the extent practicable, the due date for redemption of which
notice hereunder shall be given, shall be the latest possible date before the
Company (or any Successor Entity or Successor Person) becomes obligated to pay
Additional Amounts with respect to that series, or if such date is past, as soon
as is practicable thereafter.
SECTION 3.04. OPTIONAL REDEMPTION DUE TO A REGULATORY EVENT. (a) If at
any time the Company determines that a Regulatory Event has occurred on or after
December 12, 2000 (or, in the case of a Successor Entity or Successor Person, on
or after the date it has assumed the Company's obligations) with respect to any
series of Subordinated Notes, such series of Subordinated Notes will be
redeemable as a whole at the option of the Company (or any Successor Entity or
Successor Person), upon not less than 30 nor more than 60 days' notice on any
Interest Payment Date by paying a redemption price equal to:
(i) with respect to the Euro Notes, 100% of the aggregate
principal amount of such Euro Notes together with accrued but unpaid
interest to (but excluding) the date fixed for such redemption, and
(ii) with respect to the U.S. Dollar Notes and the Sterling
Notes, the greater of (x) 100% of their aggregate principal amount plus
accrued
16
but unpaid interest to (but excluding) the date fixed for such
redemption or (y) a Make-Whole Amount.
In any case where the Company (or any Successor Entity or Successor
Person) shall determine that a Regulatory Event has occurred and is continuing
and it is entitled, as a result, to redeem Subordinated Notes of any series, the
Company, the Successor Entity or Successor Person, as the case may be, shall be
required to deliver to the Trustee prior to the giving of any notice of
redemption a written Opinion of Counsel in a form reasonably satisfactory to the
Trustee confirming that the Company, the Successor Entity or Successor Person,
as the case may be, is entitled to exercise its right of redemption.
ARTICLE 4
OPTIONAL DEFERRAL OF INTEREST PAYMENTS
SECTION 4.01. OPTIONAL INTEREST PAYMENT DATE. (a) On any Optional
Interest Payment Date for any series of Subordinated Notes, the Company will be
entitled, by giving notice to the Trustee and the Holders of the relevant series
of Subordinated Notes in accordance with Sections 1.05 and 1.06 of the Base
Indenture prior to the Regular Record Date for such Optional Interest Payment
Date (a "DEFERRAL NOTICE"), to defer the due date for payment of any interest in
respect of such series of Subordinated Notes and, accordingly, on the giving of
such Deferral Notice, the due date (the "DEFERRED PAYMENT DATE") for payment of
interest (the "DEFERRED PAYMENT") shall be so deferred and the Company shall not
be obliged to make payment thereof on the date such payment would otherwise have
become due and payable and such deferral of interest shall not constitute a
Default by the Company or a breach of any of its obligations under the
Indenture. The Company may defer the payment of interest for any period (the
"DEFERRAL PERIOD"), PROVIDED that, (i) with respect to the Euro Notes and
Sterling Notes, such Deferral Period may not extend beyond the Stated Maturity
of the Euro Notes or Sterling Notes of such series or any other date on which
the Euro Notes or Sterling Notes of such series are to be paid in full (or in
part in accordance with Section 4.01(c)(ii)(x) below) and, (ii) with respect to
the U.S. Dollar Notes, (x) a Deferral Period may not extend beyond five years
from the initial Deferred Payment Date or any earlier date on which the U.S.
Dollar Notes are to be paid in full, (y) the Company must pay all accrued
Arrears of Interest and Additional Interest on the U.S. Dollar Notes at the end
of any such five-year period or at such earlier date and (z) at the end of any
such five-year period the Company may again defer the payment of interest on the
U.S. Dollar Notes which would otherwise be payable on any Interest Payment Date
beginning on or following the end of such five-year period; provided that any
subsequent Deferral Period must comply with this Section 4.01(a)(ii)
17
(b) ARREARS OF INTEREST. Any interest on any Subordinated Note
which is payable, but is deferred pursuant to Section 4.01(a) shall
constitute "ARREARS OF INTEREST". Arrears of Interest (together with the
corresponding amount of Additional Interest) on any registered Subordinated
Note of any series shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of them having been such Holder, and
such Arrears of Interest (together with the corresponding amount of
Additional Interest) shall be paid to the Person in whose name that
Subordinated Note (or one or more Predecessor Securities) is registered at
the close of business on the record date established by the Company for such
purpose (the "DEFERRED RECORD DATE").
(c) PAYMENTS OF ARREARS OF INTEREST. (i) Arrears of Interest (together
with the corresponding amount of Additional Interest) may at the option of
the Company be paid in whole or in part at any time and shall be paid in full
on any Mandatory Interest Payment Date.
(ii) In addition to the obligations under clause 4.01(c)(i)
above, all Arrears of Interest (together with the corresponding amount
of Additional Interest) in respect of the Subordinated Notes of any
series then Outstanding also shall become due and payable on:
(x) the date fixed for any optional or mandatory
redemption of such Subordinated Notes of such series then
Outstanding; PROVIDED, HOWEVER, that if Euro Notes are
redeemed in part pursuant to Section 3.01, only the Arrears of
Interest (together with the corresponding amount of Additional
Interest) on the Euro Notes being redeemed shall become due
and payable; or
(y) the date upon which a final judgment is
made for the judicial liquidation (LIQUIDATION JUDICIAIRE) of
the Company or the date of the voluntary liquidation
(LIQUIDATION AMIABLE) of the Company or of the sale of the
whole of the business (CESSION TOTALE DE L'ENTREPRISE) of the
Company following an order of judicial reorganization
(REDRESSEMENT JUDICIAIRE).
(d) ADDITIONAL INTEREST. Any amount of Arrears of Interest with
respect to a series of Subordinated Notes shall bear interest (to the extent
permitted by applicable law) as if it constituted the principal of such
Subordinated Notes at a rate which corresponds to the Interest Rate then
applicable to such Subordinated Notes. The amount of interest so accrued (the
"ADDITIONAL INTEREST") in respect of Arrears of Interest will become due and
payable as and when the applicable Arrears of Interest become due and payable
in accordance with the provisions of Section 4.01(c). The amount of
Additional Interest shall be calculated by the Calculation Agent in
consultation with the Company. The amount of Additional Interest accrued as
of an Interest Payment Date shall be added, for purposes only
18
of the calculation of the amount of Additional Interest due after such
Interest Payment Date, to the corresponding amount of Arrears of Interest
unpaid as at such Interest Payment Date as if such amount would constitute
itself Arrears of Interest.
(e) NOTICES. The Company shall give five Business Days' prior
notice to the Trustee and to the Holders of the relevant series of
Subordinated Notes in accordance with Sections 1.05 and 1.06, respectively,
of the Base Indenture of its election pursuant to Section 4.01(c) to pay all
or part of the Arrears of Interest or Additional Interest.
(f) PAYMENT OF ARREARS OF INTEREST AND ADDITIONAL INTEREST IN PART.
If any amounts of Arrears of Interest and Additional Interest on a series of
Subordinated Notes are paid in part:
(i) all unpaid amounts of Arrears of Interest on such
Subordinated Notes shall be payable before any Additional Interest on
such Subordinated Notes;
(ii) Arrears of Interest on such Subordinated Notes accrued
for any Interest Period shall not be payable until full payment has
been made of all Arrears of Interest on such Subordinated Notes that
have accrued during any earlier Interest Period and the order of
payment of Additional Interest on such Subordinated Notes will follow
that of the Arrears of Interest to which it relates; and
(iii) the amount of Arrears of Interest or Additional
Interest payable in respect of any Subordinated Note of such series
with respect to any Interest Period, shall be computed PRO RATA to
the total amount of all unpaid Arrears of Interest or, as the case
may be, amount of Additional Interest accrued on the Subordinated
Notes of such series in respect of that Interest Period to the date
of payment.
ARTICLE 5
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT. With respect to each series of the
Subordinated Notes, "EVENT OF DEFAULT", wherever used in the Indenture, means
the making of an order by a court of competent jurisdiction which is not
successfully appealed within 30 days of the making of such order, or the valid
adoption by the shareholders of the Company of an effective resolution, for the
winding-up of the Company (voluntary or judicial liquidation (LIQUIDATION
AMIABLE OR LIQUIDATION JUDICIAIRE)) (other than under or in connection with a
19
scheme of amalgamation or reconstruction not involving a bankruptcy or
insolvency) or, following an order of judicial reorganization (REDRESSEMENT
JUDICIAIRE), the sale of the entire business (CESSION TOTALE DE L'ENTREPRISE) of
the Company.
If an Event of Default occurs, the Subordinated Notes of each series
will automatically become due and payable without any further action required on
the part of the Holders or the Trustee.
SECTION 5.02. DEFAULTS. With respect to each series of the Subordinated
Notes, "DEFAULT" wherever used in the Indenture, means any one of the following
events:
(a) the Company fails to pay any instalment of interest on any
Subordinated Note of the applicable series when it becomes due and payable and
such failure continues for 30 days; or
(b) the Company fails to pay all or any part of the principal of any
Subordinated Note of the applicable series when it becomes due and payable and
such failure continues for seven days.
Notwithstanding the foregoing, failure to make any payment in respect
of a series of Subordinated Notes shall not be a Default in respect of such
Subordinated Notes if such payment is withheld or refused (i) in order to comply
with any fiscal or other law or regulation or with the order of any court of
competent jurisdiction, in each case applicable to such payment, or (ii) in case
of doubt as to the validity or applicability of any such law, regulation or
order, in accordance with advice given as to such validity or applicability at
any time before the expiry of such period of 30 days (in the case of payments
under clause 5.02(a) above) or seven days (in the case of payments under clause
5.02(b) above) by independent legal advisers selected by the Company and
reasonably acceptable to the Trustee, PROVIDED, however, that, with regard to
subclause (ii) only, the Trustee may by notice to the Company require the
Company to take such action (including proceedings for a declaration by a court
of competent jurisdiction) as the Trustee, at the Company's reasonable expense,
may be advised in a written opinion of independent legal advisers, upon which
opinion the Trustee may conclusively rely, is appropriate and reasonable in the
circumstances to resolve such doubt, in which case the Company shall proceed
with such action promptly and shall be bound by any final resolution of the
doubt resulting therefrom. If any such action results in a determination that
the relevant payment can be made without violating any applicable law,
regulation or order, then the payment shall become due and payable on the
expiration of 30 days (in the case of payments under clause 5.02(a) above) or
seven days (in the case of payments under clause 5.02(b) above) after the
Trustee gives written notice to the Company informing it of such determination.
20
If a Default shall occur and be continuing or the Trustee shall have
given notice in accordance with the last sentence of the preceding paragraph,
then (x) the Trustee and the Holders shall have such rights as set forth in
Article 5 of the Base Indenture and (y) the Trustee shall have the right to
institute appropriate judicial proceedings for the collection of the sums then
due and unpaid, may prosecute such proceedings to judgment or final decree and
may enforce the judgment or final decree against the Company or any of its
property wherever situated (or against any Successor Person or Successor Entity
or any of their respective property wherever situated, as applicable) in
accordance with the applicable provisions of the Base Indenture. Neither the
Trustee nor the Holders shall have the right to accelerate the maturity of the
Subordinated Notes if a Default shall occur and be continuing.
No recourse for the payment of the principal of or interest, if any, on
any Subordinated Notes, or for any claim based thereon or otherwise in respect
thereof and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture, or in any Subordinated Note, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, past, present or future, of the
Company or of any Successor Entity or Successor Person, either directly or
through the Company whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that to the extent lawful all such liability is hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this First Supplemental Indenture and the issue of the Subordinated
Notes.
The Trustee (without affecting the application of Section 5.03) and, by
accepting a Subordinated Note, each Holder of a Subordinated Note will be deemed
to have waived any right of set-off or counterclaim with respect to the
Subordinated Notes or the Indenture that they might otherwise have against the
Company.
SECTION 5.03. APPLICATION OF MONEY COLLECTED. Notwithstanding Section
5.07 of the Base Indenture, any money collected by the Trustee pursuant to this
Article 5 in respect of any series of Subordinated Notes shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or interest, if any, upon
presentation of such Subordinated Notes and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts applicable to such series of
Subordinated Notes in respect of which or for the benefit of which such money
has been collected due the Trustee under Section 6.07 of the Base Indenture;
21
SECOND: In the event that, at such time the Company is subject to
voluntary or judicial liquidation (LIQUIDATION AMIABLE OR LIQUIDATION
JUDICIAIRE), other than under or in connection with a scheme of amalgamation or
reconstruction not involving a bankruptcy or insolvency or, following an order
of judicial reorganization (REDRESSEMENT JUDICIAIRE), the sale of its entire
business (CESSION TOTALE DE L'ENTERPRISE), to the prior full payment of all
Senior Creditors to the extent required by Section 12.01 of the Base Indenture,
PROVIDED that such obligation may be performed by the Trustee paying to the
liquidator of the Company the amount to be so applied on terms that such
liquidator shall distribute and pay the same to the Senior Creditors, in which
event the receipt by such liquidator of such amount shall be a good discharge to
the Trustee and the Trustee shall not be bound to supervise or be in any way
responsible for such distribution or payment and the Holders of the Subordinated
Notes shall be fully subrogated to the rights of the Senior Creditors to the
extent of the amount paid by the Trustee to such liquidator;
THIRD: To the payment of the amounts then due and unpaid for principal
of and interest, if any, on such series of Subordinated Notes in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Subordinated Notes for principal and interest, if any,
respectively;
FOURTH: To the payment of the balance, if any, to the Company.
ARTICLE 6
COVENANTS OF THE ISSUER
SECTION 6.01. AGENTS. (a) The Company agrees, for the benefit of the
Holders from time to time of the Subordinated Notes, that, until all of the
Subordinated Notes of the applicable series are no longer Outstanding or
until moneys for the payment of all of the principal of and interest on all
Outstanding Subordinated Notes shall have been made available at an office or
offices of a Paying Agent, whichever occurs earlier, there shall at all times
be a paying agent hereunder. The Company hereby appoints The Bank of New
York, at present having an office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
as its principal paying agent in New York, BNP Paribas Luxembourg, at present
having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, and The Bank of
New York, through its London Branch, at present having an office at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, as paying agents in respect of the
Subordinated Notes, upon the terms and subject to the conditions herein and
therein set forth, it being understood that in their capacity as paying
agents hereunder, The Bank of New York, BNP Paribas Luxembourg and The Bank
of New York, London Branch, will perform their duties exclusively through
their offices in ▇▇▇ ▇▇▇▇,
▇▇
▇▇▇▇▇▇▇▇▇▇ and London, respectively. The Bank of New York, through its New York
and London branches, and BNP Paribas Luxembourg and, subject to subsection (e),
any successor paying agent are herein collectively referred to as the "PAYING
AGENTS". The Paying Agents shall arrange for the payment, from funds furnished
by the Company to the Paying Agents of the principal of and interest on the
Subordinated Notes on the date such payments become due and payable. The Paying
Agents shall have the powers and authority granted to and conferred upon them
herein and in the Subordinated Notes.
(b) Until all of the Subordinated Notes are no longer Outstanding,
there shall at all times be a Calculation Agent hereunder. The Company hereby
appoints The Bank of New York, through its London Branch, at present having an
office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, as calculation agent in
respect of the Notes (the "CALCULATION AGENT"), upon the terms and subject to
the conditions herein and therein set forth. The Calculation Agent shall
calculate the interest applicable to the Floating Rate Euro Notes in the manner
as provided in Section 2.04(d) and in such Notes and shall calculate any Arrears
of Interest and Additional Interest payable in respect of the Subordinated Notes
pursuant to Section 4.01 and in such Notes and shall undertake all other
services hereinafter described upon the terms and subject to the conditions
herein, including, but not limited to, complying with the notice provisions of
Section 6.01(h). The Calculation Agent shall have the powers and authority
granted to and conferred upon it herein and in the Subordinated Notes.
(c) Each of the Paying Agents and the Calculation Agent is herein
referred to as an "AGENT" and they are referred to collectively as the "AGENTS".
Prior to issuing the Subordinated Notes, the Company will cause such Agents to
execute and deliver to the Company (with a copy to the Trustee unless the
Trustee is also such Agent) a written instrument in which such Agent shall agree
to act as such hereunder, subject to the provisions of this Article. The Company
may also serve as Paying Agent or appoint any of its affiliates to serve as
Paying Agent and may, in the event the Calculation Agent shall resign or be
removed as provided for in Section 6.01(e) and a successor has not been
appointed at such time as a calculation is required to be made hereunder by the
Calculation Agent, also, serve as Calculation Agent; provided that the foregoing
shall not effect the Company's obligation to appoint a Calculation Agent as
provided in Section 6.01(b). The Company will give to the Trustee (unless the
Trustee is also such Agent) written notice of any change in the location of any
office or agency of the Agents hereunder. The Company shall have the right to
vary or terminate the appointment of any such office or agency subject to
Section 10.02 of the Base Indenture.
(d) Each Agent accepts its obligations set forth herein and in the
Subordinated Notes upon the terms and conditions hereof and thereof, including
the following, to all of which the Company agrees and to all of which the rights
of the Holders from time to time of the Subordinated Notes shall be subject:
23
(i) Each Agent shall be entitled to the compensation
to be agreed upon in writing with the Company for all services
rendered by it, and the Company agrees promptly to pay such
compensation and to reimburse each Agent for reasonable
out-of-pocket expenses incurred by it in connection with the
services rendered by it hereunder. The Company also agrees to
indemnify each Agent for, and to hold each of them harmless
against, any loss, liability, damage or expense incurred
without negligence, bad faith or wilful misconduct on its
part, arising out of or in connection with their acting as
Agent hereunder, including the reasonable costs and expenses
of defending itself against any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder but excluding any tax liabilities
of the Agent based upon, measured by or determined by the
income of the Agent and except to the extent that any such
loss, liability, damage, cost or expense may be attributable
to its negligence, bad faith or wilful misconduct. The
obligations of the Company under this paragraph shall survive
the payment of the Subordinated Notes and the resignation or
removal of the Agent, as the case may be.
(ii) In acting under this First Supplemental
Indenture and in connection with each series of Subordinated
Notes, each Agent is acting solely as agent of the Company and
does not assume any obligation towards or relationship of
agency or trust for or with any of the owners or Holders of
the Subordinated Notes except that all funds held by any
Paying Agent for the payment of the principal of and interest
on the Subordinated Notes shall be held in trust by it and
applied as set forth herein and in the Subordinated Notes, but
need not be segregated from other funds held by it, except as
required by law; PROVIDED that moneys paid by the Company to
any Paying Agent for the payment of the principal of and
interest on any of the Subordinated Notes and remaining
unclaimed for two years following the date of receipt of such
moneys by such Agent shall be repaid to the Company as
provided and in the manner set forth in Section 4.07 of the
Base Indenture, whereupon the aforesaid trust shall terminate
and all liability of the Paying Agent to the Company with
respect to such moneys shall cease.
(iii) Each Agent may consult with counsel and any
advice or written opinion of such counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by it hereunder in good
faith and in accordance with such advice or opinion; provided,
however that the Company shall be required to reimburse the
reasonable fees and expenses of only one counsel for the
Agents.
24
(iv) Each Agent shall be fully protected and shall
incur no liability for or in respect of any action taken or
omitted to be taken or thing suffered by it in reliance upon
any Subordinated Note, notice, direction, written instruction,
request, report, consent, certificate, affidavit, statement,
order or other instrument, paper, document or communication
reasonably believed by it in good faith to be genuine and to
have been presented or signed by the proper party or parties
and, with respect to any such instrument, paper, document or
communication expressly required to be delivered to it by the
terms of the Indenture, to substantially conform as to form
with the express requirements of the Indenture after
examination.
(v) Each Agent may, in its individual capacity or any
capacity, become the owner of, or acquire any interest in, any
Subordinated Notes or other obligations of the Company with
the same rights that it would have if it were not the Agent,
and may engage or be interested in any financial or other
transaction with the Company and may act on, or as depositary,
trustee or agent for, any committee or body of holders of
Subordinated Notes or other obligations of the Company as
freely as if it were not the Agent.
(vi) No Paying Agent shall be under any liability for
interest on any moneys received by it pursuant to any of the
provisions of this First Supplemental Indenture or the
Subordinated Notes.
(vii) The recitals contained herein and in the
Subordinated Notes (except in any Agent's certificate of
authentication) shall be taken as the statements of the
Company and such Agent assumes no responsibility for the
correctness of the same. No Agent makes any representation as
to the validity or sufficiency of this First Supplemental
Indenture or the Subordinated Notes. No Agent shall be
accountable for the use or application by the Company of any
of the Subordinated Notes or the proceeds thereof.
(viii) Each Agent shall be obligated to perform such
duties and only such duties as are herein and in the
Subordinated Notes specifically set forth, and no implied
duties or obligations shall be read into this First
Supplemental Indenture or the Subordinated Notes against the
Agent. No Agent shall be under any obligation to expend or
risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not
reasonably assured to it.
25
(ix) Unless otherwise specifically provided herein or
in the Subordinated Notes, any order, certificate, notice,
request, direction or other communication from the Company
made or given under any provision of this First Supplemental
Indenture shall be sufficient if signed by any of the
Company's Executive Directors, authorized representatives
(which shall from time to time be notified to the Agent in an
Officer's Certificate) or duly authorized attorneys-in-fact.
(x) The Agents shall not exercise any right of
set-off or lien against the Company or any Holders of the
Subordinated Notes in respect of any moneys payable to or by
them under the Indenture.
(xi) If an Agent shall change its specified office,
it shall give to the Company and the Trustee not less than 45
days' prior written notice to that effect giving the address
of the new office.
Anything in this Section to the contrary notwithstanding, the
agreements to hold sums in trust as provided in this Section are subject to the
provisions of Sections 4.04 and 4.07 of the Base Indenture and Section
6.01(d)(ii) hereof.
(e) An Agent may at any time resign by giving written notice of its
resignation to the Company specifying the date on which its resignation shall
become effective; PROVIDED that such date shall be at least 60 days after the
date on which such notice is given unless the Company agrees to accept less
notice. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor Agent, qualified as aforesaid, by written instrument in
duplicate signed on behalf of the Company, one copy of which shall be delivered
to the resigning Agent and one copy to the successor Agent and to the Trustee.
Such resignation shall not become effective until the acceptance of appointment
by the successor Agent as provided in 6.01(f). The Company may, at any time and
for any reason, and shall, upon any event set forth in the next succeeding
sentence, remove any Agent and appoint a successor Agent, qualified as
aforesaid, by written instrument in duplicate signed on behalf of the Company,
one copy of which shall be delivered to the Agent being removed and one copy to
the successor Agent and to the Trustee. The Agent shall be removed as aforesaid
if it shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or suspends payments of its debts, or a receiver of the Agent or of
its property shall be appointed, or any public officer shall take charge or
control of it or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation. Any removal of the Agent and any appointment of a
successor Agent shall become effective upon acceptance of appointment by the
successor Agent as provided in Section 6.01(f). Upon its resignation or removal,
the Agent shall be entitled to the payment by the Company of its compensation
for the services rendered hereunder and to the reimbursement of all reasonable
out-of-pocket expenses incurred in connection with the services rendered by it
hereunder.
26
(f) Any successor Agent appointed as provided in Section 6.01(e) shall
execute and deliver to its predecessor, the Company and the Trustee an
instrument accepting such appointment hereunder, and thereupon such successor
Agent, without any further act, deed or conveyance, shall become vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as Agent hereunder, and such predecessor
Agent, as the case may be, upon payment of its agreed compensation and
reasonable out-of-pocket expenses then unpaid, shall pay over to such successor
Agent all moneys or other property at the time held by it hereunder and such
predecessor Agent, shall transfer and deliver such relevant records or copies
thereof maintained by such Agent in connection with the performance of its
obligations hereunder.
(g) Any corporation or bank into which an Agent may be merged or
combined, or with which the Agent may be consolidated, or any corporation or
bank resulting from any merger, combination or consolidation to which the Agent
shall be a party, or any corporation or bank succeeding to the fiscal agency or
corporate trust business of the Agent shall, to the extent permitted by law, be
the successor to the relevant Agent hereunder (provided that such corporation or
bank shall be qualified as aforesaid) without the execution or filing of any
paper or any further act on the part of any of the parties hereto and shall
execute a written agreement assuming all obligations as such Agent hereunder.
Notice in writing of any such merger, consolidation or sale shall promptly be
given to the Company and to the Trustee (if the Trustee is not also the Agent in
question).
(h) NOTICES. The Calculation Agent shall cause the Interest Rate and
the amount of interest with respect to each Floating Interest Period as well as
the relevant Interest Payment Dates for the Floating Rate Euro Notes to be
notified, at the Company's expense, (x) to the Company and the Trustee (if
different from the Calculation Agent) in accordance with Section 1.05 of the
Base Indenture, to any Paying Agent in accordance with this Section 6.01(h) and
to any stock exchange on which such Floating Rate Euro Notes are at the relevant
time listed (provided that the Company has previously notified the Calculation
Agent of such listing and has provided the Calculation Agent, in writing, with
contact information for the stock exchange) not later than 3:00 p.m. (Brussels
time) on the Interest Determination Date and (y) to the Holders of the Floating
Rate Euro Notes in accordance with Section 1.06 of the Base Indenture as soon as
possible after their determination but in no event later than the second
Business Day thereafter.
If interest has previously been deferred pursuant to Section 4.01(a)
with respect to any series of Subordinated Notes, the Calculation Agent shall
cause the aggregate amount of the Arrears of Interest and the corresponding
amount of Additional Interest which would be payable on the next Interest
Payment Date if such Arrears of Interest and Additional Interest were to become
due on such Interest Payment Date pursuant to Section 4.01 to be notified, at
the Company's
27
expense, (x) to the Company and the Trustee (if different from the Calculation
Agent) in accordance with Section 1.05 of the Base Indenture, to any Paying
Agent in accordance with this Section 6.01(h) and to any stock exchange on which
such series of Subordinated Notes are at the relevant time listed not later than
3:00 p.m. (Brussels time) on the Interest Determination Date and (y) to the
Holders of such series of Subordinated Notes in accordance with Section 1.06 of
the Base Indenture as soon as possible after their determination but in no event
later than the second Business Day thereafter.
Any notice or other communication required to be given hereunder shall
be delivered in person, sent by letter or telecopier or communicated by
telephone (with prompt written confirmation by telecopy) to the Paying Agents at
the addresses specified herein or in the written instrument delivered to the
Company by such Agent in accordance with Section 6.01(c). Any notice hereunder
given by letter, telecopy or telex shall be deemed to have been received when it
would have been received in the ordinary course of post or transmission, as the
case may be.
(i) Each Agent hereby irrevocably submits to the non-exclusive
jurisdiction of any Federal or State court in the City, County and State of New
York, United States of America, in any legal suit, action or proceeding based on
or arising under this First Supplemental Indenture or the Subordinated Notes and
agrees that all claims in respect of such suit or proceeding may be determined
in any such court. Each Agent waives, to the extent permitted by law, the
defense of an inconvenient forum or objections to personal jurisdiction with
respect to the maintenance of such legal suit, action or proceeding.
(j) All of the privileges, protections, rights and immunities afforded
the Trustee under the Base Indenture shall continue to apply to the Trustee as
if set forth herein in full.
SECTION 6.02. OFFICES FOR PAYMENT. (a) So long as any of the Sterling
Notes remain Outstanding, the Company will maintain a Paying Agent in London
where the Sterling Notes may be presented for exchange, transfer and payment.
(b) So long as the Subordinated Notes of any series are listed on the
Luxembourg Stock Exchange and the Luxembourg Stock Exchange rules so require,
there will be a Paying Agent in Luxembourg.
(c) If the Company shall act as its own Paying Agent with respect to
the Subordinated Notes of any series, it will, on or before each due date of the
principal of or interest on the Subordinated Notes of such series, set aside,
segregate and hold in trust for the benefit of the Holders of the Subordinated
Notes of such series a sum sufficient to pay such principal or interest so
becoming due. The Company will promptly notify the Trustee of any failure to
take such action.
28
(d) Anything in this Section to the contrary notwithstanding, the
Company may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Subordinated Notes
hereunder, or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust for any such series by the Company or any Paying Agent
hereunder, as required by this Section, such sums to be held by the Trustee upon
the trusts herein contained.
SECTION 6.03. PAYMENTS. (a) In order to provide for the payment of the
principal of and interest on the Subordinated Notes of any series as the same
shall become due and payable on any payment date, the Company hereby agrees to
pay to such account or at such offices of the applicable Paying Agent in New
York, Luxembourg or London as such Paying Agent shall specify in writing to the
Company not less than five Business Days prior to the payment date, in the
currency of payment with respect to the Subordinated Notes of such series, on
each Interest Payment Date and on the Maturity Date of the Subordinated Notes of
such series or any date fixed for redemption of the Subordinated Notes of such
series (in each case determined in accordance with the terms and conditions
applicable to such series), in immediately available funds available on such
Interest Payment Date or Maturity Date, as the case may be, in an aggregate
amount which (together with any funds then held by the Paying Agent and
available for the purpose) shall be sufficient to pay the full amount of the
principal of and/or interest, as applicable, on the Subordinated Notes of such
series becoming due on such Interest Payment Date or Maturity Date, and the
Paying Agent shall hold such amount in trust and apply it to the payment of any
such principal or interest on such Interest Payment Date or Maturity Date.
Unless otherwise specified as provided above in this Section 6.03(a), such
aggregate amount shall be paid to the account of the Paying Agent in immediately
available funds no later than 10:00 a.m. (Paying Agents' time) on the Interest
Payment Date or Maturity Date, as the case may be. The Company shall notify the
Paying Agent by 12 Noon (Paying Agents' time) two Business Days prior to each
payment to be made by it pursuant to this clause (a) of the details of such
payment. At the written request of the Paying Agent, the Company shall request
that the bank through which such payment is to be made supply to the Paying
Agent by 2 p.m. (Paying Agents' time) one Business Day prior to the due date for
any such payment an irrevocable confirmation (by telefax, tested telex,
authenticated S.W.I.F.T. message or other means for the time being in common
usage) of its intention to make such payment. Nothing contained herein shall be
construed to require the Paying Agent or any other paying agent to make any
payment to the Holder of a Subordinated Note until funds have been actually
received from the Company pursuant to this Section 6.03(a).
(b) If any of the Paying Agents shall be required to act as a
withholding agent on behalf of the Company, at least three Business Days prior
to the first
29
Interest Payment Date or the Maturity Date, the Company shall furnish the Paying
Agent with a written notice instructing the Paying Agent as to any circumstances
in which payments of principal of or interest on the Subordinated Notes of any
series due on such date shall be subject to deduction or withholding for or on
account of any taxes and the rate and amount of any such deduction or
withholding and the Additional Amounts to be paid by the Company to the Holders
of the relevant series of Subordinated Notes.
SECTION 6.04. ADDITIONAL AMOUNTS. Any amounts to be paid by the Company
on any series of Subordinated Notes will be paid without deduction or
withholding for, or on account of, any and all present and future taxes,
assessments, levies, imposts, duties, charges, fees, deductions or withholdings
("TAXES") now or hereafter imposed, levied, collected, withheld or assessed by
or on behalf of any Taxing Jurisdiction, unless such deduction or withholding is
required by law. If any such Taxes shall at any time be required by a Taxing
Jurisdiction to be deducted or withheld, the Company will pay such additional
amounts of, or in respect of, the principal of and interest, if any, on, such
series of Subordinated Notes ("ADDITIONAL AMOUNTS") as may be necessary in order
that the net amounts paid to the Holders of such series of Subordinated Notes,
after such deduction or withholding, shall equal the respective amounts of
principal and interest, if any, which would have been payable in respect of such
series of Subordinated Notes had no such deduction or withholding been required;
provided, that the payment of such Additional Amounts is legal under French law
(or under the laws of the applicable Taxing Jurisdiction). However, the Company
will not be required to make any payment of Additional Amounts to any Holder for
or on account of:
(i) any withholding, deduction, tax, assessment or other
governmental charge which would not have been imposed but for the
existence of any present or former connection between such Holder (or
between a fiduciary, settlor, beneficiary, member or shareholder of, or
possessor of a power over, such Holder, if such Holder is an estate,
trust, partnership or corporation) and the applicable Taxing
Jurisdiction, including, without limitation, such Holder (or such
fiduciary, settlor, beneficiary, member, shareholder or possessor)
being or having been a citizen or resident thereof or treated as a
resident thereof or being or having been present or engaged in trade or
business therein or having or having had a permanent establishment
therein;
(ii) any estate, inheritance, gift, sales, transfer, personal
property or similar tax, assessment or other governmental charge or any
withholding or deduction on account of such tax, assessment or other
governmental charge;
30
(iii) any tax, assessment or other governmental charge which
is payable other than by withholding from payments of (or in respect
of) principal of, or any interest on, the Subordinated Notes;
(iv) any tax, assessment or other governmental charge required
to be withheld or deducted by any paying agent from any payment of
principal of, or any interest on, any Subordinated Notes, if such
payment can be made without such withholding by any other available
Paying Agent at the Holder's option;
(v) any withholding, tax, assessment, deduction or other
governmental charge imposed or withheld by reason of the failure by the
Holder to comply with a request by the Company to such Holder to
provide information or satisfy other applicable certification or
reporting requirements concerning the nationality, residence, tax
reporting or identity of the Holder, make a declaration of nonresidence
or other similar claim for exemption or present any applicable form or
certificate from the Holder or an applicable tax authority with respect
to such matters, upon the making or presentation of which that Holder
would have been able to avoid such withholding, tax, assessment,
reduction or charge;
(vi) any withholding, deduction, tax, assessment or other
governmental charge which would not have been imposed but for the
presentation of a Subordinated Note (where presentation is required)
for payment on a date more than 30 days after the date on which such
payment became due and payable or the date on which payment thereof was
duly provided for, whichever occurred later;
(vii) any tax, assessment or other governmental charge which
would not have been imposed or withheld if such Holder had not
presented that Subordinated Note for payment in the applicable Taxing
Jurisdiction, unless the Holder was required to present the
Subordinated Note for payment in the applicable Taxing Jurisdiction and
it could not have been presented for payment anywhere else;
(viii) any tax, assessment or other governmental charge which
would not have been imposed but for such Holder's status as an
individual resident of a member state of the European Union; or
(ix) any combination of items (i) through (viii) above;
nor shall Additional Amounts be paid with respect to any payment of the
principal of, or any interest on any Subordinated Note to any such Holder who
is a fiduciary or a partnership or a beneficial owner who is other than the
sole beneficial owner of such payment to the extent a beneficiary or settlor
with respect to such
31
fiduciary or a member of such partnership or a beneficial owner would not
have been entitled to such Additional Amounts had it been the Holder of the
Subordinated Note.
ARTICLE 7
SUBORDINATION
SECTION 7.01. AGREEMENT TO SUBORDINATE. The Company covenants and
agrees, and each Holder of Subordinated Notes issued hereunder, by such Holder's
acceptance thereof likewise covenants and agrees, that (i) all Subordinated
Notes issued hereunder shall rank PARI PASSU (x) with respect to each other and
(y) in right of payment with respect to any dated, unsecured and subordinated
obligations of the Company now or hereafter issued and (ii) all Subordinated
Notes issued hereunder shall be issued as Debt Securities subject to the
provisions of Article 12 of the Base Indenture and this Article 7.
ARTICLE 8
FORM OF SUBORDINATED NOTES
SECTION 8.01. FORM OF SUBORDINATED NOTE. The Subordinated Notes shall
be substantially in the form of Exhibits ▇-▇, ▇-▇ ▇▇▇ ▇-▇. ▇▇▇▇▇▇▇▇ ▇-▇, ▇-▇ and
A-3 are hereby incorporated in and expressly made a part of this First
Supplemental Indenture.
ARTICLE 9
ORIGINAL ISSUE OF SUBORDINATED NOTES
SECTION 9.01. ORIGINAL ISSUE OF SUBORDINATED NOTES. U.S. Dollar Notes
in the initial aggregate principal amount of $900,000,000, Sterling Notes in the
initial aggregate principal amount of [POUND]325,000,000 and Euro Notes in the
initial aggregate principal amount of [EURO]650,000,000 may, upon execution
of this First Supplemental Indenture, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver such Subordinated Notes to or upon the written order
of the Company, in accordance with Section 3.03 of the Base Indenture.
32
There is no limit on the amount of U.S. Dollar Notes, Sterling Notes
and Euro Notes which may be issued subsequent to this First Supplemental
Indenture and which shall be treated as part of the same series of such
Subordinated Notes.
ARTICLE 10
SATISFACTION AND DISCHARGE
SECTION 10.01. SATISFACTION AND DISCHARGE. The Company covenants and
agrees, and each Holder of Subordinated Notes issued hereunder, by such Holder's
acceptance thereof likewise covenants and agrees, that all Subordinated Notes
shall be issued as Debt Securities subject to the provisions of Article 4 of the
Base Indenture.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. RATIFICATION OF BASE INDENTURE; FIRST SUPPLEMENTAL
INDENTURE CONTROLS. The Base Indenture, as supplemented by this First
Supplemental Indenture, is in all respects ratified and confirmed, and this
First Supplemental Indenture shall be deemed part of the Base Indenture in the
manner and to the extent herein and therein provided. The provisions of this
First Supplemental Indenture shall supersede the provisions of the Base
Indenture to the extent the Base Indenture is inconsistent herewith.
SECTION 11.02. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals
herein contained are made by the Company and not by the Trustee, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee makes no
representation as to the validity or sufficiency of this First Supplemental
Indenture or the Subordinated Notes. The Trustee shall not be accountable for
the use or application by the Company of the Subordinated Notes or the proceeds
thereof.
SECTION 11.03. GOVERNING LAW. This First Supplemental Indenture and
each Subordinated Note shall be governed by and construed in accordance with the
laws of the State of New York, as applied to contracts made and performed within
the State of New York, without regard to its principles of conflicts of laws,
except for Article 7, which shall be governed by and construed in accordance
with the laws of the Republic of France, and except that the authorization and
execution of this First Supplemental Indenture and the Subordinated Notes shall
be governed by the respective jurisdictions of organization of the Company and
the Trustee, as the case may be.
33
SECTION 11.04. SEVERABILITY. If any provision in the Base Indenture,
this First Supplemental Indenture or in the Subordinated Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.05. COUNTERPARTS. The parties may sign any number of copies
of this First Supplemental Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. Any signed copy shall be
sufficient proof of this First Supplemental Indenture.
34
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first above
written.
AXA
By: /s/ ▇▇▇▇▇▇ de la Martiniere
------------------------------------
Name: ▇▇▇▇▇▇ de la Martiniere
Title: Member of the Management Board
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: AVP
EXHIBIT A-1
[FORM OF U.S. DOLLAR SUBORDINATED NOTES]
THIS SUBORDINATED NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SUBORDINATED NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART
FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SUBORDINATED NOTE IN WHOLE OR
IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY
OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
The rights of the Holder of the Subordinated Notes are, to the extent
and in the manner set forth in Section 12.01 of the Base Indenture, subordinated
to the claims of other Senior Creditors of the Company, and this Subordinated
Note is issued subject to the provisions of Section 12.01, and the Holder of
this Subordinated Note, by accepting the same, agrees to and shall be bound by
such provisions. The terms of this paragraph are governed by, and shall be
construed in accordance with, the laws of the Republic of France.
AXA
SOCIETE ANONYME A DIRECTOIRE ET CONSEIL DE SURVEILLANCE
8.60% U.S. DOLLAR SUBORDINATED NOTES
DUE DECEMBER 15, 2030
No. CUSIP No ▇▇▇▇▇▇▇▇▇
ISIN US054536AA57
Common Code 012195893
$
AXA, a SOCIETE ANONYME A DIRECTOIRE ET CONSEIL DE SURVEILLANCE
organized under the laws of France (herein called the "Company", which term
includes any successor under the First Supplemental Indenture and Base
Indenture, together the Indenture, hereinafter referred to), for value received,
hereby promises to pay , or registered assigns, the principal sum of
$ on December 15, 2030 (unless otherwise redeemed in accordance
herewith) and (except as otherwise provided for herein) to pay interest
thereon from December 15, 2000 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi annually in
arrears on June 15 and December 15 of each year, commencing on June 15, 2001,
at the rate of 8.60% per annum, until the principal hereof is paid or made
available for payment.
Subject to the second immediately following paragraph, if applicable,
interest on this Subordinated Note which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date, on any Optional Interest
Payment Date where the Company has not delivered a Deferral Notice, or on any
date on which the Company pays any accrued Arrears of Interest and Additional
Interest as provided below shall be paid, in the case of registered
Subordinated Notes, to
36
the Person in whose name this Subordinated Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date or
Deferred Record Date, as the case may be, for such interest, including through a
Paying Agent by wire-transfer of same-day funds to the Holder or, at the option
of the Company, by check mailed to the address of the Holder as it appears in
the Debt Security Register. Regular Record Dates for purposes of this
Subordinated Note will be the June 1 and December 1 preceding each June 15 and
December 15 in each year on which interest is due and payable.
Subject to the immediately following paragraph, any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Subordinated Note is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee pursuant to Section 3.07(b)(i) of the Base Indenture, notice whereof
shall be given to Holders of the Subordinated Notes not less than 10 days prior
to such Special Record Date, or be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which this
Subordinated Note may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
The Company may under certain circumstances and in accordance with the
Indenture, defer the due date for payments of interest on this Subordinated Note
on any Optional Interest Payment Date. Any interest on this Subordinated Note
which is payable, but is not punctually paid or duly provided for, on any
Optional Interest Payment Date shall constitute "ARREARS OF INTEREST". Arrears
of Interest (together with the corresponding amount of Additional Interest) on
this Subordinated Note will, as provided in the Indenture, be paid to the Person
in whose name this Subordinated Note (or one or more Predecessor Securities) is
registered at the close of business on the record date established by the
Company for such purpose (the "DEFERRED RECORD DATE"). Arrears of Interest
(together with the corresponding amount of Additional Interest) may at the
option of the Company be paid by the Company in whole or in part at any time and
will be paid in full on any Mandatory Interest Payment Date, any date fixed for
optional or mandatory redemption of this Subordinated Note or any date upon
which a final judgment is made for the judicial liquidation (LIQUIDATION
JUDICIAIRE) of the Company or the date of the voluntary liquidation (LIQUIDATION
AMIABLE) of the Company or of the sale of the whole of the business (CESSION
TOTALE DE L'ENTREPRISE) of the Company following an order of judicial
reorganization (REDRESSEMENT JUDICIAIRE).
Any amount of Arrears of Interest shall bear interest (to the extent
permitted by applicable law) as if it constituted the principal of this
Subordinated Note at a rate which corresponds to the Interest Rate then
applicable to this Subordinated Note. The amount of interest so accrued (the
"ADDITIONAL
37
INTEREST") in respect of Arrears of Interest will become due and payable as and
when the Arrears of Interest become due and payable in accordance herewith. The
amount of Additional Interest shall be calculated by the Calculation Agent (in
consultation with the Company) who will apply such interest rate to the amount
of Arrears of Interest in accordance with the provisions of the Indenture. The
amount of Additional Interest accrued as at an Interest Payment Date shall be
added, for purposes only of the calculation of the amount of Additional Interest
due after such Interest Payment Date, to the corresponding amount of Arrears of
Interest unpaid as at such Interest Payment Date as if such amount would
constitute itself Arrears of Interest.
In accordance with the Indenture, (i) the Company will pay all unpaid
amounts of Arrears of Interest on this Subordinated Note before any Additional
Interest; (ii) Arrears of Interest accrued for any Interest Period shall not be
payable until full payment has been made of all Arrears of Interest on this
Subordinated Note that have accrued during any earlier Interest Period and the
order of payment of Additional Interest on this Subordinated Note will follow
that of the Arrears of Interest to which it relates; and (iii) the amount of
Arrears of Interest or Additional Interest payable in respect of this
Subordinated Note with respect to any Interest Period, shall be computed PRO
RATA to the total amount of all unpaid Arrears of Interest or, as the case may
be, amount of Additional Interest accrued on this Subordinated Note in respect
of that Interest Period to the date of payment.
The Company shall pay Additional Amounts as provided herein and in
Section 6.04 of the Supplemental Indenture.
Reference is hereby made to the further provisions of this Subordinated
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this
Subordinated Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
38
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed manually or in facsimile.
Dated:
AXA
By:
-----------------------------------
Name:
Title: Director
CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Notes of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK
AS TRUSTEE
By:
----------------------------------
Authorized Signatory
39
[FORM OF REVERSE OF SUBORDINATED NOTE]
This U.S. Dollar Note is one of a duly authorized issue of securities
of the Company (herein called the "Subordinated Notes"), issued and to be issued
in one or more series under an Indenture, dated as of December 15, 2000 (the
"Base Indenture"), and a First Supplemental Indenture, dated as of December 15,
2000 (the "First Supplemental Indenture" and together with the Base Indenture,
the "Indenture") among the Company and The Bank of New York, as Trustee (herein
called the "Trustee", which term includes any other successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
terms of the Subordinated Notes and the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Subordinated Notes and of the terms upon which the Subordinated
Notes are, and are to be, authenticated and delivered. The Subordinated Notes
are subject to all such terms. This Subordinated Note is one of the series
designated on the face hereof, initially limited in aggregate principal amount
to $900,000,000.
The Company may from time to time, without the consent of the Holders,
create and issue further securities having the same terms and conditions as the
Subordinated Notes in all respects (or in all respects except for the issue
date, the first payment of interest thereon and/or issue price), so that such
further issue shall be consolidated and form a single series with the
outstanding Subordinated Notes or upon such terms as the Company may determine
at the time of their issue.
Except as provided below, the Subordinated Notes are not redeemable at
the option of the Company prior to the Stated Maturity of the Subordinated
Notes.
This Subordinated Note will be redeemable as a whole at the option of
the Company upon not less than 30 nor more than 60 days' notice, on any date, at
a redemption price equal to 100% of the principal amount of this Subordinated
Note together with any accrued but unpaid interest in respect of this
Subordinated Note to, but excluding, the date fixed for redemption or, in the
case of redemption pursuant to clause (ii) below, at a redemption price equal to
the greater of (x) 100% of their principal amount, plus accrued interest to, but
excluding, the date fixed for redemption, or (y) a Make-Whole Amount, if at any
time:
(i) the Company shall determine that as a result of a change
in or amendment to the laws or regulations or rulings of a Taxing
Jurisdiction, including any treaty to which it is a party, or a change
in an official application or interpretation of those laws or
regulations or rulings, including a decision of any court or tribunal,
which becomes effective on or after December 12, 2000 (or, in the case
of any Successor Person or Successor Entity, becomes effective on or
after the date of that entity's assumption of the Company's obligations
or the assumption of the Successor Entity's
40
obligations in the case of a merger, conveyance, transfer or lease in
accordance with Section 8.01 of the Base Indenture), in making any
payments of principal of or interest on such Subordinated Notes the
Company has paid or will or would on the next Interest Payment Date
be required to pay Additional Amounts and notwithstanding whether
the payment of Additional Amounts is legal or not under French law
(or the law of a Successor Entity or Successor Person jurisdiction),
or
(ii) on the next Interest Payment Date the Company would not
be entitled to claim a deduction in respect of the payments of interest
on any particular series of Subordinated Notes in computing its French
(or, in the case of a Successor Person or Successor Entity, the
relevant successor jurisdiction) taxation liabilities;
PROVIDED, HOWEVER, in the case of a Successor Entity or any Successor Person to
a Successor Entity, such redemption will only be permitted pursuant to clause
(ii) above if such Successor Entity or Successor Person would not be entitled to
claim a deduction in respect of such interest payments as a result of a change
in or amendment to the laws or regulations or rulings in the Successor Entity or
Successor Person's Taxing Jurisdiction, including any treaty to which it is a
party, or a change in an official application or interpretation of those laws or
regulations or rulings, including a decision of any court or tribunal, which
becomes effective on or after the date the Successor Entity assumes the
Company's obligations, or the Successor Person assumes the Successor Entity's
obligations; provided that the sole purpose of the assumption by such Successor
Entity or any Successor Person to a Successor Entity of the obligations under
the Indenture would not be to permit redemption of this Subordinated Note.
The Company will not give a notice of redemption earlier than 60 days
prior to the earliest date on which the Company would be obligated to pay
Additional Amounts under Section 6.04 of the Supplemental Indenture. The Company
will also pay to each Holder, or make available for payment to each Holder, of
this Subordinated Note on the redemption date, any Additional Amounts resulting
from the payment of the redemption price described above.
Notwithstanding the above, any Successor Person to the Company will
have the option to redeem this Subordinated Note where the Company, or the
Successor Person to the Company pursuant to a transaction in accordance with
Section 8.01 of the Base Indenture, is required to pay Additional Amounts upon
or after any merger, conveyance, transfer or lease pursuant to Section 8.01 of
the Base Indenture. The Company or the Successor Person is not required to use
reasonable measures to avoid the obligation to pay Additional Amounts in this
41
situation. The provisions of this paragraph do not apply to a merger,
conveyance, transfer or lease by a Successor Entity.
In any case where the Company (or any Successor Entity or Successor
Person) shall determine that as a result of any change in the official
application or interpretation of any laws or regulations it is entitled to
redeem this Subordinated Note, the Company, the Successor Entity or Successor
Person, as the case may be, shall be required to deliver to the Trustee prior to
the giving of any notice of redemption a written Opinion of Counsel in a form
reasonably satisfactory to the Trustee confirming that the Company, the
Successor Entity or Successor Person, as the case may be, is entitled to
exercise its right of redemption.
If at any time the Company determines that a Regulatory Event has
occurred on or after December 12, 2000 (or, in the case of a Successor Entity or
Successor Person, on or after the date it has assumed the Company's obligations)
with respect to this Subordinated Note and has delivered a written Opinion of
Counsel to the Trustee as required by the terms of the Indenture, this
Subordinated Note will be redeemable as a whole at the option of the Company (or
any Successor Entity or Successor Person) upon not less than 30 nor more than 60
days' notice on any Interest Payment Date by paying a redemption price equal to
the greater of (x) 100% of their aggregate principal amount plus accrued but
unpaid interest to (but excluding) the date fixed for such redemption or (y) a
Make-Whole Amount.
If French law or regulation (or the law or regulation of the applicable
Taxing Jurisdiction) prohibits the Company (or any Successor Person or Successor
Entity) from paying Additional Amounts notwithstanding the undertaking to pay
Additional Amounts pursuant to the terms of this Subordinated Note and the
Indenture, then the Company (or any Successor Person or Successor Entity) shall
(subject to any prior authorization of a Relevant Supervisory Authority) redeem
all of the Subordinated Notes Outstanding at 100% of their aggregate principal
amount plus accrued, but unpaid interest to, but excluding, the date fixed for
such redemption upon giving not less than seven nor more than thirty days'
notice to the Holders, provided that, to the extent practicable, the due date
for redemption of which notice hereunder shall be given, shall be the latest
possible date before the Company (or any Successor Entity or Successor Person)
becomes obligated to pay Additional Amounts with respect to this Subordinated
Note, or if such date is past, as soon as is practicable thereafter.
The "Make-Whole Amount" is calculated by the Calculation Agent (in
consultation with the Company) and equal to the sum of the Present Values of the
remaining scheduled payments of principal and interest of this Subordinated Note
to Maturity. "Present Value" means the value determined by the Calculation Agent
by discounting the remaining principal and interest payments to Maturity on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day
42
months) using the Adjusted Comparable Yield plus 75 basis points. If the Company
shall redeem this Subordinated Note pursuant to Section 3.02(a)(ii) or Section
3.04 of the Supplemental Indenture, prior to 18 months after the Issue Date of
this Subordinated Note, the present value will be calculated using the Adjusted
Comparable Yield plus 1.50%.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Subordinated Note or certain restrictive covenants,
Defaults and Event of Default with respect to this Subordinated Note, in each
case, upon compliance by the Company with certain conditions set forth therein.
If an Event of Default occurs, this Subordinated Note will
automatically become due and payable without any further action required on the
part of the Holders or the Trustee.
Any amounts to be paid by the Company on this Subordinated Note will be
paid without deduction or withholding for, or on account of, any and all Taxes
now or hereafter imposed, levied, collected, withheld or assessed by or on
behalf of any Taxing Jurisdiction, unless such deduction or withholding is
required by law. If any such Taxes shall at any time be required by a Taxing
Jurisdiction to be deducted or withheld, the Company will pay such Additional
Amounts as may be necessary in order that the net amounts paid to the Holders of
this Subordinated Note, after such deduction or withholding, shall equal the
respective amounts of principal and interest, if any, which would have been
payable in respect of this Subordinated Note had no such deduction or
withholding been required; provided that the payment of such Additional Amounts
is legal under French law (or under the laws of the applicable Taxing
Jurisdiction). However, the Company will not be required to make any payment of
Additional Amounts to any Holder for or on account of:
(i) any withholding, deduction, tax, assessment or other
governmental charge which would not have been imposed but for the
existence of any present or former connection between such Holder (or
between a fiduciary, settlor, beneficiary, member or shareholder of, or
possessor of a power over, such Holder, if such Holder is an estate,
trust, partnership or corporation) and the applicable Taxing
Jurisdiction, including, without limitation, such Holder (or such
fiduciary, settlor, beneficiary, member, shareholder or possessor)
being or having been a citizen or resident thereof or treated as a
resident thereof or being or having been present or engaged in trade or
business therein or having or having had a permanent establishment
therein;
(ii) any estate, inheritance, gift, sales, transfer, personal
property or similar tax, assessment or other governmental charge or any
43
withholding or deduction on account of such tax, assessment or other
governmental charge;
(iii) any tax, assessment or other governmental charge which
is payable other than by withholding from payments of (or in respect
of) principal of, or any interest on, this Subordinated Note;
(iv) any tax, assessment or other governmental charge required
to be withheld or deducted by any paying agent from any payment of
principal of or any interest on, this Subordinated Note, if such
payment can be made without such withholding by any other available
paying agent at the Holder's option;
(v) any withholding, tax, assessment, deduction or other
governmental charge imposed or withheld by reason of the failure by the
Holder to comply with a request by the Company to such Holder to
provide information or satisfy other applicable certification or
reporting requirements concerning the nationality, residence, tax
reporting or identity of the Holder, make a declaration of nonresidence
or other similar claim for exemption or present any applicable form or
certificate from the Holder or an applicable tax authority with respect
to such matters, upon the making or presentation of which that Holder
would have been able to avoid such withholding, tax, assessment,
reduction or charge;
(vi) any withholding, deduction, tax, assessment or other
governmental charge which would not have been imposed but for the
presentation of this Subordinated Note (where presentation is required)
for payment on a date more than 30 days after the date on which such
payment became due and payable or the date on which payment thereof was
duly provided for, whichever occurred later;
(vii) any tax, assessment or other governmental charge which
would not have been imposed or withheld if such Holder had not
presented this Subordinated Note for payment in the applicable Taxing
Jurisdiction, unless the Holder was required to present this
Subordinated Note for payment in the applicable Taxing Jurisdiction and
it could not have been presented for payment anywhere else;
(viii) any tax, assessment or other governmental charge which
would not have been imposed but for such Holder's status as an
individual resident of a member state of the European Union; or
(ix) any combination of items (i) through (viii) above.
44
Additional Amounts shall not be paid with respect to any payment of the
principal of, or any interest on this Subordinated Note to any Holder who is a
fiduciary or a partnership or a beneficial owner who is other than the sole
beneficial owner of such payment to the extent a beneficiary or settlor with
respect to such fiduciary or a member of such partnership or a beneficial owner
would not have been entitled to such Additional Amounts had it been the Holder
of this Subordinated Note.
On any Optional Interest Payment Date for this Subordinated Note the
Company will be entitled, by giving written notice to the Trustee in accordance
with Sections 1.05 and 1.06, respectively, of the Base Indenture prior to the
Regular Record Date for such Optional Interest Payment Date (a "DEFERRAL
NOTICE"), to defer the due date for payment of any interest in respect of this
Subordinated Note and, accordingly, on the giving of such Deferral Notice the
due date (the "DEFERRED PAYMENT DATE") for payment of interest (the "DEFERRED
PAYMENT") shall be so deferred and the Company shall not be obliged to make
payment thereof on the date such payment would otherwise have become due and
payable and such deferral of interest shall not constitute a Default by the
Company or a breach of any of its obligations under the Indenture. The Company
may defer the payment of interest for any period (the "DEFERRAL PERIOD"),
PROVIDED THAT (x) a Deferral Period may not extend beyond five years from the
initial Deferred Payment Date or any earlier date on which this Subordinated
Note is to be paid in full, (y) the Company must pay all accrued Arrears of
Interest and Additional Interest on this Subordinated Note at the end of any
such five-year period or at such earlier date and (z) at the end of any such
five-year period the Company may again defer the payment of interest on this
Subordinated Note which would otherwise be payable on any Interest Payment Date
beginning on or following the end of such five-year period; provided that any
subsequent Deferral Period must comply with the foregoing.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of this Subordinated Note at any time by
the Company, and the Trustee with the consent of the Holders of a majority in
principal amount of the Subordinated Notes at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Subordinated Notes at the time
Outstanding, on behalf of all Holders of all Subordinated Notes, to waive
compliance by the Company with certain provisions of the Indenture and certain
past Defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Subordinated Note shall be conclusive and binding
upon such Holder and upon all future holders of this Subordinated Note and of
any Subordinated Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Subordinated Note.
45
As set forth in, and subject to, the provisions of the Indenture, no
Holder of this Subordinated Note will have any right to institute any proceeding
with respect to the Indenture, this Subordinated Note or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to this
Subordinated Note, the Holders of not less than 25% in aggregate principal
amount of the Outstanding Subordinated Notes shall have made written request,
and offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a majority
in principal of the Outstanding Subordinated Note of this series a direction
inconsistent with such request and shall have failed to institute such
proceeding within 60 days; PROVIDED, HOWEVER, that such limitations do not apply
to a suit instituted by the Holder hereof for the enforcement of payment of the
principal (and premium, if any) or interest on this Subordinated Note on or
after the respective due dates expressed herein.
For a description of the duties and the immunities and rights of the
Trustee under the Indenture, reference is made to the Indenture, and the
obligations of the Trustee to the Holder hereof are subject to such immunities
and rights.
Notwithstanding any provision of this Subordinated Note or of the
Indenture, the Holder of this Subordinated Note shall have the right, which is
absolute and unconditional, to receive payment of the principal of and any
premium and, subject as provided herein, interest on this Subordinated Note at
the times, place and rate, and in the coin or currency, herein prescribed or as
provided in the Indenture.
The Subordinated Notes are issuable only in registered global form
without Coupons in denominations of $1,000 and any integral multiple thereof.
Except as provided in the Indenture and subject to certain limitations therein
set forth, this Subordinated Note will not be exchangeable for definitive
registered Subordinated Notes of this series. As provided in the Indenture and
subject to certain limitations therein set forth, if definitive Subordinated
Notes are issued in accordance with the terms of the Indenture, the transfer of
such Subordinated Note will be registrable in the Debt Security Register, upon
surrender of the Subordinated Note for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on the Subordinated Note are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Debt Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Subordinated Notes of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require from the Holder hereof payment of a sum
46
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of a Subordinated Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name the Subordinated Note is registered as the
sole owner hereof for all purposes, whether or not the Subordinated Note be
overdue, and none of the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
THE INDENTURE AND THE SUBORDINATED NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT FOR SECTION 12.01 OF THE BASE INDENTURE
AND ARTICLE 7 OF THE SUPPLEMENTAL INDENTURE, WHICH SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE REPUBLIC OF FRANCE.
All terms used in this Subordinated Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
47
EXHIBIT A-2
[FORM OF STERLING SUBORDINATED NOTES]
THIS SUBORDINATED NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SUBORDINATED NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN
PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SUBORDINATED NOTE IN
WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.
The rights of the Holder of the Subordinated Notes are, to the extent
and in the manner set forth in Section 12.01 of the Base Indenture, subordinated
to the claims of other Senior Creditors of the Company, and this Subordinated
Note is issued subject to the provisions of Section 12.01, and the Holder of
this Subordinated Note, by accepting the same, agrees to and shall be bound by
such provisions. The terms of this paragraph are governed by, and shall be
construed in accordance with, the laws of the Republic of France.
AXA
SOCIETE ANONYME A DIRECTOIRE ET CONSEIL DE SURVEILLANCE
7.125% STERLING SUBORDINATED NOTES
DUE DECEMBER 15, 2020
No. ISIN XS0122028904
Common Code 012202890
[POUND]
AXA, a SOCIETE ANONYME A DIRECTOIRE ET CONSEIL DE SURVEILLANCE
organized under the laws of France (herein called the "Company", which term
includes any successor under the First Supplemental Indenture and Base
Indenture, together the Indenture, hereinafter referred to), for value received,
hereby promises to pay , or registered assigns, the principal sum of
[POUND] on December 15, 2020 (unless otherwise redeemed in accordance
herewith) and (except as otherwise provided for herein) to pay interest
thereon from December 15, 2000 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, annually in arrears on
December 15 in each year commencing December 15, 2001, at the rate of 7.125%
per annum until the principal hereof is paid or made available for payment.
48
Subject to the second immediately following paragraph, if applicable,
interest on this Subordinated Note which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date, on any Optional Interest
Payment Date where the Company has not delivered a Deferral Notice, or on any
date on which the Company pays any accrued Arrears of Interest and Additional
Interest as provided below shall be paid, in the case of registered Subordinated
Notes, to the Person in whose name this Subordinated Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date or Deferred Record Date, as the case may be, for such interest,
including through a Paying Agent by wire-transfer of same-day funds to the
Holder or, at the option of the Company, by check mailed to the address of the
Holder as it appears in the Debt Security Register. Regular Record Dates for
purposes of this Subordinated Note will be the December 1 preceding each
December 15 in each year on which interest is due and payable.
Subject to the immediately following paragraph, any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Subordinated Note is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee pursuant to Section 3.07(b)(i) of the Base Indenture, notice whereof
shall be given to Holders of the Subordinated Notes not less than 10 days prior
to such Special Record Date, or be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which this
Subordinated Note may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
The Company may under certain circumstances and in accordance with the
Indenture, defer the due date for payments of interest on this Subordinated
Note on any Optional Interest Payment Date. Any interest on this Subordinated
Note which is payable, but is not punctually paid or duly provided for, on
any Optional Interest Payment Date shall constitute "ARREARS OF INTEREST".
Arrears of Interest (together with the corresponding amount of Additional
Interest) on this Subordinated Note will, as provided in the Indenture, be
paid to the Person in whose name this Subordinated Note (or one or more
Predecessor Securities) is registered at the close of business on the record
date established by the Company for such purpose (the "DEFERRED RECORD
DATE"). Arrears of Interest (together with the corresponding amount of
Additional Interest) may at the option of the Company be paid by the Company
in whole or in part at any time and will be paid in full on any Mandatory
Interest Payment Date, any date fixed for optional or mandatory redemption of
this Subordinated Note or any date upon which a final judgment is made for
the judicial liquidation (LIQUIDATION JUDICIAIRE) of the Company or the date
of the voluntary liquidation (LIQUIDATION AMIABLE) of the Company or of the
sale of the whole of the business (CESSION TOTALE DE
49
L'ENTREPRISE) of the Company following an order of judicial reorganization
(REDRESSEMENT JUDICIAIRE).
Any amount of Arrears of Interest shall bear interest (to the extent
permitted by applicable law) as if it constituted the principal of this
Subordinated Note at a rate which corresponds to the Interest Rate then
applicable to this Subordinated Note. The amount of interest so accrued (the
"ADDITIONAL INTEREST") in respect of Arrears of Interest will become due and
payable as and when the Arrears of Interest become due and payable in accordance
herewith. The amount of Additional Interest shall be calculated by the
Calculation Agent (in consultation with the Company) who will apply such
interest rate to the amount of Arrears of Interest in accordance with the
provisions of the Indenture. The amount of Additional Interest accrued as at an
Interest Payment Date shall be added, for purposes only of the calculation of
the amount of Additional Interest due after such Interest Payment Date, to the
corresponding amount of Arrears of Interest unpaid as at such Interest Payment
Date as if such amount would constitute itself Arrears of Interest.
In accordance with the Indenture, (i) the Company will pay all unpaid
amounts of Arrears of Interest on this Subordinated Note before any Additional
Interest; (ii) Arrears of Interest accrued for any Interest Period shall not be
payable until full payment has been made of all Arrears of Interest on this
Subordinated Note that have accrued during any earlier Interest Period and the
order of payment of Additional Interest on this Subordinated Note will follow
that of the Arrears of Interest to which it relates; and (iii) the amount of
Arrears of Interest or Additional Interest payable in respect of this
Subordinated Note with respect to any Interest Period, shall be computed PRO
RATA to the total amount of all unpaid Arrears of Interest or, as the case may
be, amount of Additional Interest accrued on this Subordinated Note in respect
of that Interest Period to the date of payment.
The Company shall pay Additional Amounts as provided herein and in
Section 6.04 of the Supplemental Indenture.
Reference is hereby made to the further provisions of this Subordinated
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this
Subordinated Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
50
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed manually or in facsimile.
Dated:
AXA
By:
---------------------------
Name:
Title: Director
CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Notes of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK
AS TRUSTEE
By:
----------------------------
Authorized Signatory
51
[FORM OF REVERSE OF SUBORDINATED NOTE]
This Sterling Note is one of a duly authorized issue of securities of the
Company (herein called the "Subordinated Notes"), issued and to be issued in
one or more series under an Indenture, dated as of December 15, 2000 (the
"Base Indenture"), and a First Supplemental Indenture, dated as of December
15, 2000 (the "First Supplemental Indenture" and together with the Base
Indenture, the "Indenture") among the Company and The Bank of New York, as
Trustee (herein called the "Trustee", which term includes any other successor
trustee under the Indenture), and reference is hereby made to the Indenture
for a statement of the terms of the Subordinated Notes and the respective
rights, limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Subordinated Notes and of the
terms upon which the Subordinated Notes are, and are to be, authenticated and
delivered. The Subordinated Notes are subject to all such terms. This
Subordinated Note is one of the series designated on the face hereof,
initially limited in aggregate principal amount to [POUND]325,000,000.
The Company may from time to time, without the consent of the Holders,
create and issue further securities having the same terms and conditions as the
Subordinated Notes in all respects (or in all respects except for the issue
date, the first payment of interest thereon and/or issue price), so that such
further issue shall be consolidated and form a single series with the
outstanding Subordinated Notes or upon such terms as the Company may determine
at the time of their issue.
Except as provided below, the Subordinated Notes are not redeemable at the
option of the Company prior to the Stated Maturity of the Subordinated Notes.
This Subordinated Note will be redeemable as a whole at the option of the
Company upon not less than 30 nor more than 60 days' notice, on any date, at a
redemption price equal to 100% of the principal amount of this Subordinated Note
together with any accrued but unpaid interest in respect of this Subordinated
Note to, but excluding, the date fixed for redemption or, in the case of
redemption pursuant to clause (ii) below, at a redemption price equal to the
greater of (x) 100% of their principal amount plus accrued interest to, but
excluding, the date fixed for redemption or (y) a Make-Whole Amount, if at any
time:
(i) the Company shall determine that as a result of a change in or
amendment to the laws or regulations or rulings of a Taxing Jurisdiction,
including any treaty to which it is a party, or a change in an official
application or interpretation of those laws or regulations or rulings,
including a decision of any court or tribunal, which becomes effective on
or after December 12, 2000 (or, in the case of any Successor Person or
Successor Entity, becomes effective on or after the date of that entity's
assumption of the Company's obligations or the assumption of the Successor
Entity's
52
obligations in the case of a merger, conveyance, transfer or lease in
accordance with Section 8.01 of the Base Indenture), in making any payments
of principal of or interest on such Subordinated Notes the Company has paid
or will or would on the next Interest Payment Date be required to pay
Additional Amounts and notwithstanding whether the payment of Additional
Amounts is legal or not under French law (or the law of a Successor Entity
or Successor Person jurisdiction), or
(ii) on the next Interest Payment Date the Company would not be
entitled to claim a deduction in respect of the payments of interest on any
particular series of Subordinated Notes in computing its French (or, in the
case of a Successor Person or Successor Entity, the relevant successor
jurisdiction) taxation liabilities;
PROVIDED, HOWEVER, in the case of a Successor Entity or any Successor Person to
a Successor Entity, such redemption will only be permitted pursuant to clause
(ii) above if such Successor Entity or Successor Person would not be entitled to
claim a deduction in respect of such interest payments as a result of a change
in or amendment to the laws or regulations or rulings in the Successor Entity or
Successor Person's Taxing Jurisdiction, including any treaty to which it is a
party, or a change in an official application or interpretation of those laws or
regulations or rulings, including a decision of any court or tribunal, which
becomes effective on or after the date the Successor Entity assumes the
Company's obligations, or the Successor Person assumes the Successor Entity's
obligations; provided that the sole purpose of the assumption by such Successor
Entity or any Successor Person to a Successor Entity of the obligations under
the Indenture would not be to permit redemption of this Subordinated Note.
The Company will not give a notice of redemption earlier than 60 days prior
to the earliest date on which the Company would be obligated to pay Additional
Amounts under Section 6.04 of the Supplemental Indenture. The Company will also
pay to each Holder, or make available for payment to each Holder, of this
Subordinated Note on the redemption date, any Additional Amounts resulting from
the payment of the redemption price described above.
Notwithstanding the above, any Successor Person to the Company will have
the option to redeem this Subordinated Note where the Company, or the Successor
Person to the Company pursuant to a transaction in accordance with Section 8.01
of the Base Indenture, is required to pay Additional Amounts upon or after any
merger, conveyance, transfer or lease pursuant to Section 8.01 of the Base
Indenture. The Company or the Successor Person is not required to use reasonable
measures to avoid the obligation to pay Additional Amounts in this
53
situation. The provisions of this paragraph do not apply to a merger,
conveyance, transfer or lease by a Successor Entity.
In any case where the Company (or any Successor Entity or Successor Person)
shall determine that as a result of any change in the official application or
interpretation of any laws or regulations it is entitled to redeem this
Subordinated Note, the Company, the Successor Entity or Successor Person, as the
case may be, shall be required to deliver to the Trustee prior to the giving of
any notice of redemption a written Opinion of Counsel in a form reasonably
satisfactory to the Trustee confirming that the Company, the Successor Entity or
Successor Person, as the case may be, is entitled to exercise its right of
redemption.
If at any time the Company determines that a Regulatory Event has occurred
on or after December 12, 2000 (or, in the case of a Successor Entity or
Successor Person, on or after the date it has assumed the Company's obligations)
with respect to this Subordinated Note and has delivered a written Opinion of
Counsel to the Trustee as required by the terms of the Indenture, this
Subordinated Note will be redeemable as a whole at the option of the Company (or
any Successor Entity or Successor Person) upon not less than 30 nor more than 60
days' notice on any Interest Payment Date by paying a redemption price equal to
the greater of (x) 100% of their aggregate principal amount plus accrued but
unpaid interest to (but excluding) the date fixed for such redemption or (y) a
Make-Whole Amount.
If French law or regulation (or the law or regulation of the applicable
Taxing Jurisdiction) prohibits the Company (or any Successor Person or Successor
Entity) from paying Additional Amounts notwithstanding the undertaking to pay
Additional Amounts pursuant to the terms of this Subordinated Note and the
Indenture, then the Company (or any Successor Person or Successor Entity) shall
(subject to any prior authorization of a Relevant Supervisory Authority) redeem
all of the Subordinated Notes then Outstanding at 100% of their aggregate
principal amount plus accrued but unpaid interest to, but excluding, the date
fixed for such redemption upon giving not less than seven nor more than thirty
days' notice to the Holders, provided that, to the extent practicable, the due
date for redemption of which notice hereunder shall be given, shall be the
latest possible date before the Company (or any Successor Entity or Successor
Person) becomes obligated to pay Additional Amounts with respect to this
Subordinated Note, or if such date is past, as soon as is practicable
thereafter.
The "Make-Whole Amount" is calculated by the Calculation Agent (in
consultation with the Company) and equal to the sum of the Present Values of the
remaining scheduled payments of principal and interest of this Subordinated Note
to Maturity. "Present Value" means the value determined by the Calculation Agent
by discounting the remaining principal and interest payments to Maturity on an
annual basis (assuming a 360-day year consisting of twelve 30-day months)
54
using the Adjusted Comparable Yield plus 75 basis points. If the Company shall
redeem this Subordinated Note pursuant to Section 3.02(a)(ii) or Section 3.04 of
the Supplemental Indenture, prior to 18 months after the Issue Date of this
Subordinated Note, the present value will be calculated using the Adjusted
Comparable Yield plus 1.225%.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Subordinated Note or certain restrictive covenants,
Defaults and Event of Default with respect to this Subordinated Note, in each
case, upon compliance by the Company with certain conditions set forth therein.
If an Event of Default occurs, this Subordinated Note will automatically
become due and payable without any further action required on the part of the
Holders or the Trustee.
Any amounts to be paid by the Company on this Subordinated Note will be
paid without deduction or withholding for, or on account of, any and all Taxes
now or hereafter imposed, levied, collected, withheld or assessed by or on
behalf of any Taxing Jurisdiction, unless such deduction or withholding is
required by law. If any such Taxes shall at any time be required by a Taxing
Jurisdiction to be deducted or withheld, the Company will pay such Additional
Amounts as may be necessary in order that the net amounts paid to the Holders of
this Subordinated Note, after such deduction or withholding, shall equal the
respective amounts of principal and interest, if any, which would have been
payable in respect of this Subordinated Note had no such deduction or
withholding been required; provided that the payment of such Additional Amounts
is legal under French law (or under the laws of the applicable Taxing
Jurisdiction). However, the Company will not be required to make any payment of
Additional Amounts to any Holder for or on account of:
(i) any withholding, deduction, tax, assessment or other
governmental charge which would not have been imposed but for the
existence of any present or former connection between such Holder (or
between a fiduciary, settlor, beneficiary, member or shareholder of, or
possessor of a power over, such Holder, if such Holder is an estate,
trust, partnership or corporation) and the applicable Taxing
Jurisdiction, including, without limitation, such Holder (or such
fiduciary, settlor, beneficiary, member, shareholder or possessor)
being or having been a citizen or resident thereof or treated as a
resident thereof or being or having been present or engaged in trade or
business therein or having or having had a permanent establishment
therein;
(ii) any estate, inheritance, gift, sales, transfer, personal
property or similar tax, assessment or other governmental charge or any
55
withholding or deduction on account of such tax, assessment or other
governmental charge;
(iii) any tax, assessment or other governmental charge which
is payable other than by withholding from payments of (or in respect
of) principal of, or any interest on, this Subordinated Note;
(iv) any tax, assessment or other governmental charge required
to be withheld or deducted by any paying agent from any payment of
principal of or any interest on, this Subordinated Note, if such
payment can be made without such withholding by any other available
paying agent at the Holder's option;
(v) any withholding, tax, assessment, deduction or other
governmental charge imposed or withheld by reason of the failure by the
Holder to comply with a request by the Company to such Holder to
provide information or satisfy other applicable certification or
reporting requirements concerning the nationality, residence, tax
reporting or identity of the Holder, make a declaration of nonresidence
or other similar claim for exemption or present any applicable form or
certificate from the Holder or an applicable tax authority with respect
to such matters, upon the making or presentation of which that Holder
would have been able to avoid such withholding, tax, assessment,
reduction or charge;
(vi) any withholding, deduction, tax, assessment or other
governmental charge which would not have been imposed but for the
presentation of this Subordinated Note (where presentation is required)
for payment on a date more than 30 days after the date on which such
payment became due and payable or the date on which payment thereof was
duly provided for, whichever occurred later;
(vii) any tax, assessment or other governmental charge which
would not have been imposed or withheld if such Holder had not
presented this Subordinated Note for payment in the applicable Taxing
Jurisdiction, unless the Holder was required to present this
Subordinated Note for payment in the applicable Taxing Jurisdiction and
it could not have been presented for payment anywhere else;
(viii) any tax, assessment or other governmental charge which
would not have been imposed but for such Holder's status as an
individual resident of a member state of the European Union; or
(ix) any combination of items (i) through (viii) above.
56
Additional Amounts shall not be paid with respect to any payment of the
principal of, or any interest on this Subordinated Note to any Holder who is a
fiduciary or a partnership or a beneficial owner who is other than the sole
beneficial owner of such payment to the extent a beneficiary or settlor with
respect to such fiduciary or a member of such partnership or a beneficial owner
would not have been entitled to such Additional Amounts had it been the Holder
of this Subordinated Note.
On any Optional Interest Payment Date for this Subordinated Note the
Company will be entitled, by giving written notice to the Trustee in accordance
with Sections 1.05 and 1.06, respectively, of the Base Indenture prior to the
Regular Record Date for such Optional Interest Payment Date (a "DEFERRAL
NOTICE"), to defer the due date for payment of any interest in respect of this
Subordinated Note and, accordingly, on the giving of such Deferral Notice the
due date (the "DEFERRED PAYMENT DATE") for payment of interest (the "DEFERRED
PAYMENT") shall be so deferred and the Company shall not be obliged to make
payment thereof on the date such payment would otherwise have become due and
payable and such deferral of interest shall not constitute a Default by the
Company or a breach of any of its obligations under the Indenture. The Company
may defer the payment of interest for any period (the "DEFERRAL PERIOD"),
PROVIDED THAT such Deferral Period may not extend beyond the Stated Maturity of
this Subordinated Note or any other date on which this Subordinated Note is to
be paid in full.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of this Subordinated Note at any time by
the Company, and the Trustee with the consent of the Holders of a majority in
principal amount of the Subordinated Notes at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Subordinated Notes at the time
Outstanding, on behalf of all Holders of all Subordinated Notes, to waive
compliance by the Company with certain provisions of the Indenture and certain
past Defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Subordinated Note shall be conclusive and binding
upon such Holder and upon all future holders of this Subordinated Note and of
any Subordinated Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Subordinated Note.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of this Subordinated Note will have any right to institute any proceeding
with respect to the Indenture, this Subordinated Note or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to this
Subordinated Note, the Holders of not less than 25% in aggregate principal
amount of the Outstanding Subordinated
57
Notes shall have made written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as trustee, and the Trustee shall not have
received from the Holders of a majority in principal of the Outstanding
Subordinated Notes a direction inconsistent with such request and shall have
failed to institute such proceeding within 60 days; PROVIDED, HOWEVER, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal (and premium, if any) or interest on
this Subordinated Note on or after the respective due dates expressed herein.
For a description of the duties and the immunities and rights of the
Trustee under the Indenture, reference is made to the Indenture, and the
obligations of the Trustee to the Holder hereof are subject to such immunities
and rights.
Notwithstanding any provision of this Subordinated Note or of the
Indenture, the Holder of this Subordinated Note shall have the right, which is
absolute and unconditional, to receive payment of the principal of and any
premium and, subject as provided herein, interest on this Subordinated Note at
the times, place and rate, and in the coin or currency, herein prescribed or as
provided in the Indenture.
The Subordinated Notes are issuable only in registered global form
without Coupons in denominations of [POUND]1,000 and any integral multiple
thereof. Except as provided in the Indenture and subject to certain limitations
therein set forth, this Subordinated Note will not be exchangeable for
definitive registered Subordinated Notes of this series. As provided in the
Indenture and subject to certain limitations therein set forth, if definitive
Subordinated Notes are issued in accordance with the terms of the Indenture, the
transfer of such Subordinated Note will be registrable in the Debt Security
Register, upon surrender of the Subordinated Note for registration of transfer
at the office or agency of the Company in any place where the principal of and
any premium and interest on the Subordinated Note are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Debt Security Registrar duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one or more new
Subordinated Notes of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require from the Holder hereof payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of a Subordinated Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name the Subordinated Note is registered as the
58
sole owner hereof for all purposes, whether or not the Subordinated Note be
overdue, and none of the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
THE INDENTURE AND THE SUBORDINATED NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT FOR SECTION 12.01 OF THE BASE INDENTURE
AND ARTICLE 7 OF THE SUPPLEMENTAL INDENTURE, WHICH SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE REPUBLIC OF FRANCE.
All terms used in this Subordinated Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
59
EXHIBIT A-3
[FORM OF EURO SUBORDINATED NOTES]
THIS SUBORDINATED NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SUBORDINATED NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN
PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SUBORDINATED NOTE IN
WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.
The rights of the Holder of the Subordinated Notes are, to the extent
and in the manner set forth in Section 12.01 of the Base Indenture, subordinated
to the claims of other Senior Creditors of the Company, and this Subordinated
Note is issued subject to the provisions of Section 12.01, and the Holder of
this Subordinated Note, by accepting the same, agrees to and shall be bound by
such provisions. The terms of this paragraph are governed by, and shall be
construed in accordance with, the laws of the Republic of France.
AXA
SOCIETE ANONYME A DIRECTOIRE ET CONSEIL DE SURVEILLANCE
6.75% EURO SUBORDINATED NOTES
DUE DECEMBER 15, 2020
No. ISIN XS0122029548
Common Code 012202954
[EURO]
AXA, a SOCIETE ANONYME A DIRECTOIRE ET CONSEIL DE SURVEILLANCE
organized under the laws of France (herein called the "Company", which term
includes any successor under the First Supplemental Indenture and Base
Indenture, together the Indenture, hereinafter referred to), for value received,
hereby promises to pay , or registered assigns, the principal sum of
[EURO] on December 15, 2020 (unless otherwise redeemed in accordance
herewith) and (except as otherwise provided for herein) to pay interest
thereon from December 15, 2000 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, annually in arrears on
December 15 in each year commencing December 15, 2001, until December 15,
2010 at a fixed rate per annum equal to 6.75%. After December 15, 2010, the
Company hereby promises to pay interest quarterly in arrears on March 15,
June 15, September 15 and December 15 of each year, at a floating rate equal
to the Euro Reference Rate plus a margin of 2.20%, calculated
60
on the relevant Interest Determination Date, until the principal hereof is paid
or made available for payment.
The Euro Reference Rate will be determined by the Calculation Agent as
at or about 11:00 a.m. (Brussels time) on the Interest Determination Date in
question, as follows:
(i) The Euro Reference Rate will be the offered rate,
expressed as an annual rate, for three (3) month Euro deposits
commencing on the first date of the relevant interest period, which
appears, for information purposes only, at or about 11:00 a.m.
(Brussels time) on the display designated as page "248" on
Bridge/Telerate (or such other page or service as may replace it for
the purpose of displaying the European interbank offered rate).
(ii) If the Euro Reference Rate cannot be ascertained as
described in subparagraph (i) above, the Calculation Agent will request
each of the Euro Reference Banks to provide the Calculation Agent with
its offered quotation to prime banks in the Euro-zone interbank market
for Euro deposits for a period of three (3) months commencing on the
first day of the relevant Floating Interest Period, at or about 11:00
a.m. (Brussels time) on the Interest Determination Date. The Euro
Reference Rate will be the arithmetic mean (rounded upwards if
necessary to the nearest fifth decimal place with 0.000005 being
rounded upwards) of the offered quotations as established by the
Calculation Agent.
(iii) If on any Interest Determination Date the Euro Reference
Rate is being calculated in accordance with subparagraph (ii) above,
and only two (2) or three (3) of the Euro Reference Banks provided
offered quotations, the Euro Reference Rate shall be calculated in
accordance with the provisions of subparagraph (ii) above, based on the
offered quotations of those Euro Reference Banks providing offered
quotations.
(iv) If on any Interest Determination Date the Euro Reference
Rate is being calculated in accordance with subparagraph (ii) above,
and less than two (2) Euro Reference Banks provide offered quotations,
the Euro Reference Rate shall be the annual rate which the Calculation
Agent determines to be the sum of the margin and the arithmetic mean
(rounded upwards if necessary to the nearest fifth decimal place with
0.000005 being rounded upwards) of the Euro lending rates quoted by
major banks in the Euro-zone (selected by the Calculation Agent with
the prior written consent of the Company and being at least two (2) in
number) at or about 11:00 a.m. (Brussels time) on the Interest
Determination Date in question for loans in Euro to leading European
banks for a period of three (3)
61
months commencing on the first day of the relevant Floating Interest
Period, except that if the banks so selected by the Calculation Agent
are not quoting on such Interest Determination Date, the Interest Rate
for the relevant Floating Interest Period shall be the Interest Rate in
effect for the last preceding Floating Interest Period to which
subparagraphs (i), (ii) or (iii) shall have applied.
For purposes of this paragraph the following terms have the following
meanings:
"EURO BUSINESS DAY" means any day (other than a Saturday or a Sunday)
on which the Trans-European Automated Real-Time Gross Settlement Express
Transfer System or any successor system thereto is operating.
"EURO REFERENCE BANKS" means the principal Euro-zone office of four
major banks in the Euro-zone interbank market selected by the Calculation Agent
with the prior written consent of the Company.
Interest Payment Dates after December 15, 2010 with respect to the Euro
Notes are called "FLOATING INTEREST PAYMENT DATES". The period from and
including December 15, 2010 to, but excluding, the following Interest Payment
Date with respect to the Euro Notes and each successive period from, and
including, a Floating Interest Payment Date to, but excluding, the next
succeeding Floating Interest Payment Date with respect to such series is called
a "FLOATING INTEREST PERIOD".
"INTEREST DETERMINATION DATE" means the second Euro Business Day before
the commencement of the Floating Interest Period for which the rate will apply.
Subject to the second immediately following paragraph, if applicable,
interest on this Subordinated Note which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date, on any Optional Interest
Payment Date where the Company has not delivered a Deferral Notice, or on any
date on which the Company pays any accrued Arrears of Interest and Additional
Interest as provided below shall be paid, in the case of registered Subordinated
Notes, to the Person in whose name this Subordinated Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date or Deferred Record Date, as the case may be, for such interest,
including through a Paying Agent by wire-transfer of same-day funds to the
Holder or, at the option of the Company, by check mailed to the address of the
Holder as it appears in the Debt Security Register. Until December 15, 2010, the
Regular Record Date for purposes of this Subordinated Note will be the December
1 preceding each December 15 in each year on which interest is due and payable.
After December
62
15, 2010, Regular Record Dates for purposes of this Subordinated Note will be
the March 1, June 1, September 1 and December 1 preceding each March 15, June
15, September 15 and December 15 in each year on which interest is due and
payable.
Subject to the immediately following paragraph, any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Subordinated Note is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee pursuant to Section 3.07(b)(i) of the Base Indenture, notice whereof
shall be given to Holders of the Subordinated Notes not less than 10 days prior
to such Special Record Date, or be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which this
Subordinated Note may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
The Company may under certain circumstances and in accordance with the
Indenture, defer the due date for payments of interest on this Subordinated Note
on any Optional Interest Payment Date. Any interest on this Subordinated Note
which is payable, but is not punctually paid or duly provided for, on any
Optional Interest Payment Date shall constitute "ARREARS OF INTEREST". Arrears
of Interest (together with the corresponding amount of Additional Interest) on
this Subordinated Note will, as provided in the Indenture, be paid to the Person
in whose name this Subordinated Note (or one or more Predecessor Securities) is
registered at the close of business on the record date established by the
Company for such purpose (the "DEFERRED RECORD DATE"). Arrears of Interest
(together with the corresponding amount of Additional Interest) may at the
option of the Company be paid by the Company in whole or in part at any time and
will be paid in full on any Mandatory Interest Payment Date, any date fixed for
optional or mandatory redemption of this Subordinated Note or any date upon
which a final judgment is made for the judicial liquidation (LIQUIDATION
JUDICIAIRE) of the Company or the date of the voluntary liquidation (LIQUIDATION
AMIABLE) of the Company or of the sale of the whole of the business (CESSION
TOTALE DE L'ENTREPRISE) of the Company following an order of judicial
reorganization (REDRESSEMENT JUDICIAIRE).
Any amount of Arrears of Interest shall bear interest (to the extent
permitted by applicable law) as if it constituted the principal of this
Subordinated Note at a rate which corresponds to the Interest Rate then
applicable to this Subordinated Note. The amount of interest so accrued (the
"ADDITIONAL INTEREST") in respect of Arrears of Interest will become due and
payable as and when the Arrears of Interest become due and payable in accordance
herewith. The amount of Additional Interest shall be calculated by the
Calculation Agent (in
63
consultation with the Company) who will apply such interest rate to the amount
of Arrears of Interest in accordance with the provisions of the Indenture. The
amount of Additional Interest accrued as at an Interest Payment Date shall be
added, for purposes only of the calculation of the amount of Additional Interest
due after such Interest Payment Date, to the corresponding amount of Arrears of
Interest unpaid as at such Interest Payment Date as if such amount would
constitute itself Arrears of Interest.
In accordance with the Indenture, (i) the Company will pay all unpaid
amounts of Arrears of Interest on this Subordinated Note before any Additional
Interest; (ii) Arrears of Interest accrued for any Interest Period shall not be
payable until full payment has been made of all Arrears of Interest on this
Subordinated Note that have accrued during any earlier Interest Period and the
order of payment of Additional Interest on this Subordinated Note will follow
that of the Arrears of Interest to which it relates; and (iii) the amount of
Arrears of Interest or Additional Interest payable in respect of this
Subordinated Note with respect to any Interest Period, shall be computed PRO
RATA to the total amount of all unpaid Arrears of Interest or, as the case may
be, amount of Additional Interest accrued on this Subordinated Note in respect
of that Interest Period to the date of payment.
The Company shall pay Additional Amounts as provided herein and in
Section 6.04 of the Supplemental Indenture.
Reference is hereby made to the further provisions of this Subordinated
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this
Subordinated Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed manually or in facsimile.
Dated:
AXA
By:
---------------------------------
Name:
Title: Director
CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Notes of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK
AS TRUSTEE
By:
---------------------------------
Authorized Signatory
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[FORM OF REVERSE OF SUBORDINATED NOTE]
This Euro Note is one of a duly authorized issue of securities of the
Company (herein called the "Subordinated Notes"), issued and to be issued in one
or more series under an Indenture, dated as of December 15, 2000 (the "Base
Indenture"), and a First Supplemental Indenture, dated as of December 15, 2000
(the "First Supplemental Indenture" and together with the Base Indenture, the
"Indenture") among the Company and The Bank of New York, as Trustee (herein
called the "Trustee", which term includes any other successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
terms of the Subordinated Notes and the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Subordinated Notes and of the terms upon which the Subordinated
Notes are, and are to be, authenticated and delivered. The Subordinated Notes
are subject to all such terms. This Subordinated Note is one of the series
designated on the face hereof, initially limited in aggregate principal amount
to [EURO]650,000,000.
The Company may from time to time, without the consent of the Holders,
create and issue further securities having the same terms and conditions as the
Subordinated Notes in all respects (or in all respects except for the issue
date, the first payment of interest thereon and/or issue price), so that such
further issue shall be consolidated and form a single series with the
outstanding Subordinated Notes or upon such terms as the Company may determine
at the time of their issue.
On any Interest Payment Date on and after December 15, 2010, this
Subordinated Note may be redeemed in whole or in part, at the option of the
Company and without the consent of the Holders thereof or the Trustee, upon
giving not less than 30 nor more than 60 days' notice to the Holders thereof at
a redemption price equal to 100% of the aggregate principal amount thereof
together with any accrued interest to, but excluding, the date fixed for
redemption. In the event of redemption of this Subordinated Note in part only,
(a) the Trustee shall select the Subordinated Notes to be redeemed on a pro-rata
basis, by lot or by such other method as it deems fair and appropriate and (b) a
new Subordinated Note or Subordinated Notes of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
This Subordinated Note will be redeemable as a whole at the option of
the Company upon not less than 30 nor more than 60 days' notice, on any date, at
a redemption price equal to 100% of the principal amount of this Subordinated
Note together with any accrued but unpaid interest in respect of this
Subordinated Note to, but excluding, the date fixed for redemption, if at any
time:
(i) the Company shall determine that as a result of a change
in or amendment to the laws or regulations or rulings of a Taxing
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Jurisdiction, including any treaty to which it is a party, or a change
in an official application or interpretation of those laws or
regulations or rulings, including a decision of any court or tribunal,
which becomes effective on or after December 12, 2000 (or, in the case
of any Successor Person or Successor Entity, becomes effective on or
after the date of that entity's assumption of the Company's obligations
or the assumption of the Successor Entity's obligations in the case of
a merger, conveyance, transfer or lease in accordance with the Section
8.01 of the Base Indenture), in making any payments of principal of or
interest on such Subordinated Notes the Company has paid or will or
would on the next Interest Payment Date be required to pay Additional
Amounts and notwithstanding whether the payment of Additional Amounts
is legal or not under French law (or the law of a Successor Entity or
Successor Person jurisdiction), or
(ii) on the next Interest Payment Date the Company would not
be entitled to claim a deduction in respect of the payments of interest
on any particular series of Subordinated Notes in computing its French
(or, in the case of a Successor Person or Successor Entity, the
relevant successor jurisdiction) taxation liabilities;
PROVIDED, HOWEVER, in the case of a Successor Entity or any Successor Person to
a Successor Entity, such redemption will only be permitted pursuant to clause
(ii) above if such Successor Entity or Successor Person would not be entitled to
claim a deduction in respect of such interest payments as a result of a change
in or amendment to the laws or regulations or rulings in the Successor Entity or
Successor Person's Taxing Jurisdiction, including any treaty to which it is a
party, or a change in an official application or interpretation of those laws or
regulations or rulings, including a decision of any court or tribunal, which
becomes effective on or after the date the Successor Entity assumes the
Company's obligations, or the Successor Person assumes the Successor Entity's
obligations; provided that the sole purpose of the assumption by such Successor
Entity or any Successor Person to a Successor Entity of the obligations under
the Indenture would not be to permit redemption of this Subordinated Note.
The Company will not give a notice of redemption earlier than 60 days
prior to the earliest date on which the Company would be obligated to pay
Additional Amounts under Section 6.04 of the Supplemental Indenture. The Company
will also pay to each Holder, or make available for payment to each Holder, of
this Subordinated Note on the redemption date, any Additional Amounts resulting
from the payment of the redemption price described above.
Notwithstanding the above, any Successor Person to the Company will
have the option to redeem this Subordinated Note where the Company, or the
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Successor Person to the Company pursuant to a transaction in accordance with
Section 8.01 of the Base Indenture, is required to pay Additional Amounts upon
or after any merger, conveyance, transfer or lease pursuant to Section 8.01 of
the Base Indenture. The Company or the Successor Person is not required to use
reasonable measures to avoid the obligation to pay Additional Amounts in this
situation. The provisions of this paragraph do not apply to a merger,
conveyance, transfer or lease by a Successor Entity.
In any case where the Company (or any Successor Entity or Successor
Person) shall determine that as a result of any change in the official
application or interpretation of any laws or regulations it is entitled to
redeem this Subordinated Note, the Company, the Successor Entity or Successor
Person, as the case may be, shall be required to deliver to the Trustee prior to
the giving of any notice of redemption a written Opinion of Counsel in a form
reasonably satisfactory to the Trustee confirming that the Company, the
Successor Entity or Successor Person, as the case may be, is entitled to
exercise its right of redemption.
If at any time the Company determines that a Regulatory Event has
occurred on or after December 12, 2000 (or, in the case of a Successor Entity or
Successor Person, on or after the date it has assumed the Company's obligations)
with respect to this Subordinated Note and has delivered a written Opinion of
Counsel to the Trustee as required by the terms of the Indenture, this
Subordinated Note will be redeemable as a whole at the option of the Company (or
any Successor Entity or Successor Person) upon not less than 30 nor more than 60
days' notice on any Interest Payment Date by paying a redemption price equal to
100% of the aggregate principal amount of this Subordinated Note together with
accrued but unpaid interest to (but excluding) the date fixed for such
redemption.
If French law or regulation (or the law or regulation of the applicable
Taxing Jurisdiction) prohibits the Company (or any Successor Person or Successor
Entity) from paying Additional Amounts notwithstanding the undertaking to pay
Additional Amounts pursuant to the terms of this Subordinated Note and the
Indenture, then the Company (or any Successor Person or Successor Entity) shall
(subject to any prior authorization of a Relevant Supervisory Authority) redeem
all of the Subordinated Notes then Outstanding at 100% of their aggregate
principal amount plus accrued but unpaid interest to, but excluding, the date
fixed for such redemption upon giving not less than seven nor more than thirty
days' notice to the Holders, provided that, to the extent practicable, the due
date for redemption of which notice hereunder shall be given, shall be the
latest possible date before the Company (or any Successor Entity or Successor
Person) becomes obligated to pay Additional Amounts with respect to this
Subordinated Note, or if such date is past, as soon as is practicable
thereafter.
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The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Subordinated Note or certain restrictive covenants,
Defaults and Event of Default with respect to this Subordinated Note, in each
case, upon compliance by the Company with certain conditions set forth therein.
If an Event of Default occurs, this Subordinated Note will
automatically become due and payable without any further action required on the
part of the Holders or the Trustee.
Any amounts to be paid by the Company on this Subordinated Note will be
paid without deduction or withholding for, or on account of, any and all Taxes
now or hereafter imposed, levied, collected, withheld or assessed by or on
behalf of any Taxing Jurisdiction, unless such deduction or withholding is
required by law. If any such Taxes shall at any time be required by a Taxing
Jurisdiction to be deducted or withheld, the Company will pay such Additional
Amounts as may be necessary in order that the net amounts paid to the Holders of
this Subordinated Note, after such deduction or withholding, shall equal the
respective amounts of principal and interest, if any, which would have been
payable in respect of this Subordinated Note had no such deduction or
withholding been required; provided that the payment of such Additional Amounts
is legal under French law (or under the laws of the applicable Taxing
Jurisdiction). However, the Company will not be required to make any payment of
Additional Amounts to any Holder for or on account of:
(i) any withholding, deduction, tax, assessment or other
governmental charge which would not have been imposed but for the
existence of any present or former connection between such Holder (or
between a fiduciary, settlor, beneficiary, member or shareholder of, or
possessor of a power over, such Holder, if such Holder is an estate,
trust, partnership or corporation) and the applicable Taxing
Jurisdiction, including, without limitation, such Holder (or such
fiduciary, settlor, beneficiary, member, shareholder or possessor)
being or having been a citizen or resident thereof or treated as a
resident thereof or being or having been present or engaged in trade or
business therein or having or having had a permanent establishment
therein;
(ii) any estate, inheritance, gift, sales, transfer, personal
property or similar tax, assessment or other governmental charge or any
withholding or deduction on account of such tax, assessment or other
governmental charge;
(iii) any tax, assessment or other governmental charge which
is payable other than by withholding from payments of (or in respect
of) principal of, or any interest on, this Subordinated Note;
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(iv) any tax, assessment or other governmental charge required
to be withheld or deducted by any paying agent from any payment of
principal of, or any interest on, this Subordinated Note, if such
payment can be made without such withholding by any other available
paying agent at the Holder's option;
(v) any withholding, tax, assessment, deduction or other
governmental charge imposed or withheld by reason of the failure by the
Holder to comply with a request by the Company to such Holder to
provide information or satisfy other applicable certification or
reporting requirements concerning the nationality, residence, tax
reporting or identity of the Holder, make a declaration of nonresidence
or other similar claim for exemption or present any applicable form or
certificate from the Holder or an applicable tax authority with respect
to such matters, upon the making or presentation of which that Holder
would have been able to avoid such withholding, tax, assessment,
reduction or charge;
(vi) any withholding, deduction, tax, assessment or other
governmental charge which would not have been imposed but for the
presentation of this Subordinated Note (where presentation is required)
for payment on a date more than 30 days after the date on which such
payment became due and payable or the date on which payment thereof was
duly provided for, whichever occurred later;
(vii) any tax, assessment or other governmental charge which
would not have been imposed or withheld if such Holder had not
presented this Subordinated Note for payment in the applicable Taxing
Jurisdiction, unless the Holder was required to present this
Subordinated Note for payment in the applicable Taxing Jurisdiction and
it could not have been presented for payment anywhere else;
(viii) any tax, assessment or other governmental charge which
would not have been imposed but for such Holder's status as an
individual resident of a member state of the European Union; or
(ix) any combination of items (i) through (viii) above.
Additional Amounts shall not be paid with respect to any payment of the
principal of, or any interest on this Subordinated Note to any Holder who is a
fiduciary or a partnership or a beneficial owner who is other than the sole
beneficial owner of such payment to the extent a beneficiary or settlor with
respect to such fiduciary or a member of such partnership or a beneficial owner
would not have been entitled to such Additional Amounts had it been the Holder
of this Subordinated Note.
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On any Optional Interest Payment Date for this Subordinated Note the
Company will be entitled, by giving written notice to the Trustee in accordance
with Sections 1.05 and 1.06, respectively, of the Base Indenture prior to the
Regular Record Date for such Optional Interest Payment Date (a "DEFERRAL
NOTICE"), to defer the due date for payment of any interest in respect of this
Subordinated Note and, accordingly, on the giving of such Deferral Notice the
due date (the "DEFERRED PAYMENT DATE") for payment of interest (the "DEFERRED
PAYMENT") shall be so deferred and the Company shall not be obliged to make
payment thereof on the date such payment would otherwise have become due and
payable and such deferral of interest shall not constitute a Default by the
Company or a breach of any of its obligations under the Indenture. The Company
may defer the payment of interest for any period (the "DEFERRAL PERIOD"),
PROVIDED THAT such Deferral Period may not extend beyond the Stated Maturity of
this Subordinated Note or any other date on which this Subordinated Note is to
be paid in full or in part in accordance with the terms of the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of this Subordinated Note at any time by
the Company, and the Trustee with the consent of the Holders of a majority in
principal amount of the Subordinated Notes at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Subordinated Notes at the time
Outstanding, on behalf of all Holders of all Subordinated Notes, to waive
compliance by the Company with certain provisions of the Indenture and certain
past Defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Subordinated Note shall be conclusive and binding
upon such Holder and upon all future holders of this Subordinated Note and of
any Subordinated Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Subordinated Note.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of this Subordinated Note will have any right to institute any proceeding
with respect to the Indenture, this Subordinated Note or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to this
Subordinated Note, the Holders of not less than 25% in aggregate principal
amount of the Outstanding Subordinated Notes of this series shall have made
written request, and offered reasonable indemnity, to the Trustee to institute
such proceeding as trustee, and the Trustee shall not have received from the
Holders of a majority in principal of the Outstanding Subordinated Note of this
series a direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days; PROVIDED, HOWEVER, that such
limitations do not apply to a suit instituted by the
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Holder hereof for the enforcement of payment of the principal (and premium, if
any) or interest on this Subordinated Note on or after the respective due dates
expressed herein.
For a description of the duties and the immunities and rights of the
Trustee under the Indenture, reference is made to the Indenture, and the
obligations of the Trustee to the Holder hereof are subject to such immunities
and rights.
Notwithstanding any provision of this Subordinated Note or of the
Indenture, the Holder of this Subordinated Note shall have the right, which is
absolute and unconditional, to receive payment of the principal of and any
premium and, subject as provided herein, interest on this Subordinated Note at
the times, place and rate, and in the coin or currency, herein prescribed or as
provided in the Indenture.
The Subordinated Notes are issuable only in registered global form
without Coupons in denominations of [EURO]1,000 and any integral multiple
thereof. Except as provided in the Indenture and subject to certain
limitations therein set forth, this Subordinated Note will not be
exchangeable for definitive registered Subordinated Notes of this series. As
provided in the Indenture and subject to certain limitations therein set
forth, if definitive Subordinated Notes are issued in accordance with the
terms of the Indenture, the transfer of such Subordinated Note will be
registrable in the Debt Security Register, upon surrender of the Subordinated
Note for registration of transfer at the office or agency of the Company in
any place where the principal of and any premium and interest on the
Subordinated Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Debt
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Subordinated Notes of
like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require from the Holder hereof payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of a Subordinated Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name the Subordinated Note is registered as the
sole owner hereof for all purposes, whether or not the Subordinated Note be
overdue, and none of the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
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THE INDENTURE AND THE SUBORDINATED NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT FOR SECTION 12.01 OF THE BASE INDENTURE
AND ARTICLE 7 OF THE SUPPLEMENTAL INDENTURE, WHICH SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE REPUBLIC OF FRANCE.
All terms used in this Subordinated Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
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