EXHIBIT 10.1
SCHEDULE 2
Dated 26 June 2003
(as amended and restated pursuant to an amendment and restatement agreement
dated 2 July 2003)
AGZ HOLDING
as Parent
THE COMPANIES NAMED HEREIN
as Borrowers and/or Guarantors
THE ENTITIES NAMED HEREIN
as Lenders
CREDIT LYONNAIS
as Mandated Lead Arranger
CREDIT LYONNAIS
as Facility Agent
CREDIT LYONNAIS
as Security Agent
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SENIOR FACILITIES AGREEMENT
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Shearman & Sterling LLP
Paris
[MAP]
CONTENTS
PAGE
CLAUSE
1. INTERPRETATION ............................................................ 1
2. THE FACILITIES ............................................................ 17
3. PARTICIPATION OF LENDERS .................................................. 18
4. CONDITIONS PRECEDENT ...................................................... 19
5. DRAWDOWN PROCEDURES ....................................................... 20
6. DEMANDS UNDER BANK GUARANTEES ............................................. 24
7. INTEREST .................................................................. 26
8. SELECTION OF INTEREST PERIODS ............................................. 29
9. MARKET DISRUPTION ......................................................... 30
10. REPAYMENT OF DRAWINGS ..................................................... 31
11. PREPAYMENT AND CANCELLATION ............................................... 32
12. PAYMENTS .................................................................. 38
13. TAXES ..................................................................... 40
14. CHANGE IN CIRCUMSTANCES ................................................... 42
15. FEES, EXPENSES AND STAMP DUTIES ........................................... 45
16. GUARANTEE AND INDEMNITY ................................................... 46
17. CHANGES TO OBLIGORS AND SECURITY .......................................... 48
18. REPRESENTATIONS AND WARRANTIES ............................................ 50
19. UNDERTAKINGS .............................................................. 54
20. EVENTS OF DEFAULT ......................................................... 75
21. THE AGENTS AND THE OTHER FINANCE PARTIES .................................. 80
22. PRO RATA PAYMENTS ......................................................... 86
23. SET-OFF ................................................................... 87
24. NOTICES ................................................................... 87
25. CONFIDENTIALITY ........................................................... 88
26. CHANGES TO PARTIES ........................................................ 89
27. LENDERS' DECISIONS ........................................................ 91
28. INDEMNITIES ............................................................... 92
29. MISCELLANEOUS ............................................................. 93
30. GOVERNING LAW AND SUBMISSION TO JURISDICTION .............................. 94
SCHEDULE 1 ..................................................................... 95
Lenders ........................................................................ 95
SCHEDULE 2 ..................................................................... 96
Security Documents ............................................................. 96
SCHEDULE 3 ..................................................................... 97
Documentary Conditions Precedent ............................................... 97
SCHEDULE 4 ..................................................................... 101
Part 1 - Drawdown Request - Advances ........................................... 101
Part 2 - Drawdown Request - Bank Guarantees .................................... 102
SCHEDULE 5 ..................................................................... 103
Transfer Certificate ........................................................... 103
Schedule 1 to Transfer Certificate ............................................. 106
Schedule 2 to Transfer Certificate ............................................. 107
Particulars relating to the Transferee ......................................... 107
SCHEDULE 6 ..................................................................... 108
Accession Document ............................................................. 108
SCHEDULE 7 ..................................................................... 111
Auditors certificate ........................................................... 111
SCHEDULE 8 ..................................................................... 112
Form of effective global rate letter ........................................... 112
SCHEDULE 9 ..................................................................... 114
Part 1 - Distribution Companies ................................................ 114
Part 2 - Storage and Logistics Companies ....................................... 115
SCHEDULE 10 .................................................................... 116
Part 1 - Supply Agreements ..................................................... 116
Part 2 - Other Material Contracts .............................................. 117
SCHEDULE 11 .................................................................... 119
Mandatory Cost Formulae ........................................................ 119
THIS FACILITIES AGREEMENT is made on 26 June 2003 and is amended and restated in
accordance with an amendment and restatement agreement dated 2 July 2003
BETWEEN:
(1) AGZ HOLDING (a company incorporated in France as a societe anonyme with
registered number 413 765 108 RCS Paris) (the "PARENT");
(2) ANTARGAZ (a company incorporated in France as a societe anonyme with
registered number 572 126 043 RCS Nanterre) ("ANTARGAZ");
(3) CREDIT LYONNAIS as mandated lead arranger (the "ARRANGER");
(4) THE FINANCIAL INSTITUTIONS listed in schedule 1 as Lenders;
(5) CREDIT LYONNAIS in its capacity as facility agent for the Lenders under
the Senior Finance Documents (the "FACILITY AGENT"); and
(6) CREDIT LYONNAIS in its capacity as agent for the Finance Parties under the
Security Documents (the "SECURITY AGENT").
WHEREAS:
The Parent has requested the Lenders to make available to it a EUR
220,000,000 Term Facility and the Parent and Antargaz have requested the
Lenders to make available to them and to other Borrowers (as defined
below) a EUR 50,000,000 Revolving Facility, all for the purpose of
refinancing and replacing borrowings under the Existing Facilities
Agreement (as defined below).
THE PARTIES TO THIS AGREEMENT AGREE as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this agreement:
"ACCESSION DOCUMENT" means an agreement substantially in the form set out
in schedule 6 under which a Group Company becomes a Borrower and/or a
Guarantor and becomes a party to the Intercreditor Agreement;
"ACCOUNTING HALF-YEAR" means each period of approximately 26 weeks ending
on the last day of September and March in a Financial Year;
"ACQUISITION" means the acquisition of all the shares of Antargaz
completed on 27 March 2001 in accordance with the Acquisition Documents;
"ACQUISITION COSTS" means all fees, costs and expenses incurred by the
Parent for the purpose of or in connection with the Acquisition;
"ACQUISITION DOCUMENTS" means the Sale and Purchase Agreement, the
Warranty Agreement and all other documents and agreements made between any
Vendor and any Group Company in connection with the Sale and Purchase
Agreement;
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"ADVANCES" means the Term Advance and the Revolving Advances;
"AFFILIATE" means a Subsidiary or a Holding Company of another person or
any other Subsidiary of a Holding Company of that other person;
"AGENTS" means the Facility Agent and the Security Agent;
"ANNUAL ACCOUNTS" means the audited annual accounts of the Group delivered
or to be delivered to the Facility Agent under clause 19.10(c)(i)
(Financial statements);
"APPROVED ACCOUNTING PRINCIPLES" means French gaap and, subject to those
principles, the accounting principles, standards and practices on the
basis of which the Original Audited Accounts were prepared (adjusted to
take account of those differences referred to in the Disclosure Letter);
"APPROVED PROJECTIONS" means the financial projections and forecast for
the business of the Group in the agreed form prepared on a basis
consistent with the Approved Accounting Principles;
"AUDITORS" means PricewaterhouseCoopers and Ernst & Young and/or any other
firm of accountants which the Parent appoints in accordance with clause
19.10(b) (Books of account and auditors);
"AVAILABILITY PERIOD" means the period starting on the Signing Date and
ending:
(a) on 7 July 2003 (inclusive) in the case of the Term Facility; and
(b) one month before the Revolving Facility Repayment Date in the case
of the Revolving Facility;
"BANK GUARANTEE" means a guarantee or letter of credit issued by an
Issuing Lender under the Revolving Facility in the form agreed by the
Parent, the Facility Agent and the relevant Issuing Lender;
"BENEFICIARY" means the person approved by the relevant Issuing Lender in
whose favour a Bank Guarantee has been or is to be issued;
"BORROWERS" means the Parent, Antargaz and each other Group Company which
becomes a borrower under this agreement in accordance with clause 17.1
(Additional Borrowers);
"BUSINESS DAY" means a day (other than a Saturday or a Sunday) on which
banks and financial markets are open in Paris and London for the
transaction of business of the nature required by this agreement and:
(a) in relation to a transaction involving Euros, a day which is a
Target Day; and
(b) in relation to a transaction involving the Optional Currency, a day
on which banks and financial institutions are open in the principal
financial centre of the country of the Optional Currency;
"CASH COLLATERAL ACCOUNT" means an account with the Security Agent opened
in the name of an Obligor into which amounts are to be paid for the
purposes of clause 1.4 (Cash cover) and over which the Security Agent has
or shall have a first priority security interest under the Security
Documents;
"CASH EQUIVALENTS" has the meaning given to it in clause 19.12 (Financial
definitions);
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"CERTAIN FUNDS PERIOD" means the period commencing on the Signing Date and
ending on the earlier of (a) the first Drawdown Date (inclusive) and (b)
the last day of the Availability Period of the Term Facility (inclusive);
"COMMITMENT" means, in relation to a Lender, its Term Commitment or its
Revolving Commitment;
"CONSTITUTIONAL DOCUMENTS" means the statuts and k-bis of the Parent in
the agreed form;
"CONTINGENT LIABILITY" means:
(a) the maximum actual and/or contingent liability of an Issuing Lender
under a Bank Guarantee at any time; or
(b) the maximum actual and/or contingent liability of a Lender in
relation to a Bank Guarantee at any time under clause 6.4(b)
(Indemnities);
"CONTROLLING INVESTOR" means any entity which:
(a) holds more than 50 per cent. of the equity share capital of the
Parent or equity share capital having the right to cast more than 50
per cent. of the votes capable of being cast in general meetings of
the Parent; or
(b) has the right to determine the composition of a majority of the
board of directors (or like body) of the Parent; or
(c) has "control" (as defined in article L. 233-3 of the French
Commercial Code) of the Parent;
"CORE BUSINESS" means the existing core business of the Group as at the
Signing Date, consisting of the purchase, storage and distribution of
butane and propane-based LPG (liquified petroleum gaz);
"CREDITOR ACCESSION AGREEMENT has the meaning given to it in the
Intercreditor Agreement;
"DEFAULT" means an Event of Default or a Potential Event of Default;
"DERIVATIVE INSTRUMENT" means any forward rate agreement, option, swap,
cap, floor, any combination or hybrid of the foregoing and any other
financial derivative agreement;
"DISCLOSURE LETTER" means the letter dated the Signing Date and delivered
by the Parent addressed to (and countersigned by) the Facility Agent
stating that it is the Disclosure Letter referred to in this agreement
and, amongst other things, making certain disclosures against, and
qualifying the extent of, certain representations and warranties in Clause
18 (Representations and Warranties);
"DISTRIBUTION COMPANIES" means the companies and other corporate entities
listed in part 1 of schedule 9;
"DRAWDOWN DATE" means the date for the making of a Drawing, as specified
by the relevant Borrower in the relevant Drawdown Request;
"DRAWDOWN REQUEST" means a notice requesting an Advance or the issue of a
Bank Guarantee in the form set out in part 1 or 2 (as appropriate) of
schedule 4;
"DRAWING" means a utilisation by a Borrower of a Facility;
3
"EBITDA" has the meaning given to it in clause 19.12 (Financial
definitions);
"ENVIRONMENT" means any and all living organisms (including man),
ecosystems, gases, air, vapours, liquids, water, land, surface and
sub-surface soils, rock and all other natural resources or part of such
resources, including artificial or man-made buildings, structures or
enclosures;
"ENVIRONMENTAL APPROVAL" means any consent required under or in relation
to Environmental Laws;
"ENVIRONMENTAL LAWS" means all international, European Union, national,
federal, state or local statutes, orders, regulations or other law or
subordinate legislation or common law or guidance notes or regulatory
codes of practice, circulars and equivalent controls (including judicial
interpretation of any of the foregoing) concerning the Environment or
health and safety which are in existence now or in the future and are
binding at any time on any Group Company in the relevant jurisdiction in
which that Group Company has been or is operating (including by the export
of its products or its waste to that jurisdiction);
"EONIA" means in relation to a Business Day and any amount in Euro:
(a) the overnight rate per annum calculated by the European Banking
Federation for the relevant Business Day which appears on Telerate
Screen page 247 or any other service which displays such rate which
the Facility Agent, after consultation with the Lenders and the
Parent, selects; or
(b) if the rate referred to in paragraph (a) above is not available for
that Business Day, the arithmetic mean of the rates (rounded upwards
to four decimals places) as supplied to the Facility Agent at its
request quoted by the Reference Banks to the leading banks in the
European interbank market;
at or about 7.00 pm (Brussels time) on such day for offering of deposits
in Euro for the period from one Business Day to the immediately following
Business Day;
"EQUITY DOCUMENTS" means the Constitutional Documents, the Shareholders
Agreement and all other documents and agreements entered into in
connection with any of those documents;
"EQUITY INVESTORS" means the Original Equity Investors and any assignee or
transferee of any interest in the Group under the Shareholders Agreement
or of any other rights under any Equity Document;
"EURIBOR" means, in relation to any Advance or overdue amount in Euro, the
rate per annum equal to the offered quotation which appears on Telerate
Screen page 248 (or any replacement page on that service) as of 11.00 am
on the applicable Rate Fixing Day for a period comparable to its Interest
Period or, if no Telerate service is available, on any other service which
displays an average European Banking Federation Interest Settlement Rate
for Euro which the Facility Agent, after consultation with the Lenders and
the Parent, selects;
"EURO", "EUR" and "E" means the single currency of the Participating
Member States of the European Union;
"EURO EQUIVALENT" means, in relation to an amount denominated in a
currency other than Euro, the amount of that currency converted into the
relevant amount of Euros at the Euro Spot Rate;
4
"EURO SPOT RATE" means the spot rate of exchange of the Facility Agent (as
determined by the Facility Agent) for the purchase of the aggregate amount
of Euros with a currency other than Euro in the European foreign exchange
market in the ordinary course of business at or about 10:00 am on a
particular day;
"EVENT OF DEFAULT" means any event specified in clause 20.1 (List of
events);
"EXISTING FACILITIES" means the Existing Term Facilities and the Existing
Revolving Facility;
"EXISTING REVOLVING FACILITY" means the revolving credit facility in the
principal amount of EUR 46,000,000 granted to the Borrowers under the
Existing Facilities Agreement;
"EXISTING TERM FACILITIES" means the term facilities in the outstanding
principal amount of EUR 261,427,755.10 as of the date hereof granted to
the Parent under the Existing Facilities Agreement;
"EXISTING FACILITIES AGREEMENT" means the senior credit agreement dated 15
February 2001, as amended and restated on 27 March 2001 and 23 July 2002,
between, inter alia, the Parent, Antargaz, the lenders named therein and
Deutsche Bank AG London as facility agent and security agent in relation
to the Existing Facilities;
"FACILITIES" means the Term Facility and the Revolving Facility;
"FEES LETTER" means the letter from the Facility Agent to the Parent dated
on or about the Signing Date setting out details of certain fees payable
by the Parent in connection with the Facilities;
"FINANCE PARTIES" means the Arranger, each Agent, each Lender, each
Issuing Lender and each Hedging Lender;
"FINANCIAL INDEBTEDNESS" means (without double counting) any indebtedness
in relation to or arising under or in connection with:
(a) any money borrowed (including any overdraft);
(b) any debenture, bond (other than a performance bond issued in the
ordinary course of trading by one Group Company in relation to the
obligations of another Group Company), note or loan stock or other
similar instrument;
(c) any acceptance or documentary credit;
(d) any receivable sold or discounted (other than to the Security Agent
pursuant to any Security Document) provided that, for the purposes
of any calculation of the amount of Financial Indebtedness, the
amount of indebtedness to be taken into account under this paragraph
(d) will be the amount of the consideration received by the relevant
Group Company for the sale or discounting of the relevant
receivable;
(e) the purchase price of any asset or service to the extent payable by
a Group Company after the time of sale or delivery to a Group
Company, where the deferred payment is:
(i) arranged as a method of raising vendor financing; and
(ii) paid more than six months after the sale or delivery date;
5
(f) the sale price of any asset or service to the extent paid before the
time of sale or delivery by the Group Company liable to effect that
sale or delivery, where the advance payment is arranged as a method
of raising finance;
(g) any finance lease, hire purchase, credit sale or conditional sale
agreement which in each case would be treated as such in accordance
with French gaap;
(h) Derivative Instruments (provided that, for the purpose of any
calculation of the amount of Financial Indebtedness to be taken into
account under this paragraph (h) in respect of the relevant
Derivative Instrument, that amount shall be the net amount of the
payment obligations outstanding from the relevant Group Company
under that Derivative Instrument, less the amount of any margin then
placed by that Group Company with the relevant counterparty in
connection with that Derivative Instrument);
(i) any amount payable by any Obligor in relation to the reduction of
any share capital or redemption of any securities issued by it or
any other Group Company, other than amounts payable to another
Obligor;
(j) any amount raised under any other transaction having the commercial
effect of a borrowing (other than refundable deposits payable and
consigned containers accrual liability); or
(k) any guarantee issued by a Group Company of indebtedness of any
person of a type referred to in paragraphs (a) to (j) (inclusive)
above;
for the avoidance of doubt, the amount of indebtedness to be taken into
account for the purpose of any calculation of the amount of Financial
Indebtedness shall not double-count guarantees granted by any Group
Company in respect of Financial Indebtedness incurred by any Group Company
and will not include guarantees of obligations incurred by any Group
Company which obligations do not constitute indebtedness of a type
referred to in paragraphs (a) to (j) (inclusive) above;
"FINANCIAL YEAR" means the period of 12 months ending on 31 March in each
year;
"FINCO" means AGZ Finance, a company incorporated under the laws of the
Grand Duchy Luxembourg as a societe anonyme with registered number RC
Luxembourg B 87.750;
"FRENCH GAAP" means accounting principles, standards and practices
generally accepted from time to time in France;
"GEOGAZ" has the meaning given to it in part 2 of schedule 10;
"GEOVEXIN" has the meaning given to it in part 2 of schedule 10;
"GROUP" means the Parent and its Subsidiaries from time to time;
"GROUP COMPANY" means a member of the Group;
"GROUPEMENT DONGES" means the groupement d'interets economiques Groupement
Donges which has been established by Elf Antar France and the Parent
pursuant to the Principal Supply Agreement referred to in part 1 of
schedule 10;
"GUARANTORS" means the Parent, Antargaz and each other Group Company which
becomes a guarantor under this agreement;
6
"HALF-YEAR ACCOUNTS" means the semi-annual consolidated management
accounts of the Group delivered or to be delivered to the Facility Agent
under clause 19.10(c)(ii)(Financial statements);
"HEDGING AGREEMENTS" means Derivative Instruments entered into with the
Hedging Lenders for the purpose of managing or hedging currency and/or
interest rate risk in relation to the Term Facility;
"HEDGING LENDER" means a Lender (or an Affiliate of a Lender) or an entity
that is a party to an existing derivative instrument entered into by the
Parent in relation to the Existing Term Facilities, in its capacity as
provider of currency and/or interest rate hedging under any Hedging
Agreement;
"HIGH YIELD DOCUMENTS" means the High Yield Trust Deed, the High Yield
Notes and all other documents evidencing the terms of the High Yield Notes
and any other document or agreement entered into or executed pursuant
thereto or in connection therewith;
"HIGH YIELD GUARANTEE" means the subordinated guarantee set out in the
High Yield Trust Deed and provided by the Parent in favour of the High
Yield Trustee and the holders of the High Yield Notes pursuant to which
the Parent guarantees the obligations of Finco under the High Yield
Documents;
"HIGH YIELD NOTES" means the high yield notes issued on 23 July 2002 by
Finco in an aggregate principal amount of EUR 165,000,000, bearing
interest at the rate of 10 per cent. per annum payable semi-annually on 15
January and 15 July in each year, and maturing on 15 July 2011, the
proceeds of which have been made available to the Parent through the
subscription by Finco of the Intra-Group Bonds in accordance with the
Intra-Group Bond Documents;
"HIGH YIELD TRUST DEED" means the trust deed and/or other instrument
pursuant to which the High Yield Notes have been issued;
"HIGH YIELD TRUSTEE" means the trustee appointed on behalf of the holders
of the High Yield Notes pursuant to the High Yield Trust Deed;
"HOLDING COMPANY" means, in relation to any body corporate, any other body
corporate of which it is a Subsidiary;
"INTELLECTUAL PROPERTY" means the Intellectual Property Rights owned or
used by Group Companies throughout the world or the interests of any Group
Company in any of those Intellectual Property Rights, together with the
benefit of all agreements entered into or the benefit of which is enjoyed
by any Group Company relating to the use or exploitation of any of those
Intellectual Property Rights;
"INTELLECTUAL PROPERTY RIGHTS" means all patents and patent applications,
trade and service marks and trade and/or service mark applications (and
all goodwill associated with any such applications), all brand and trade
names, all copyrights and rights in the nature of copyright, all design
rights, all registered designs and applications for registered designs,
all trade secrets, know-how and all other intellectual property rights;
"INTERCREDITOR AGREEMENT" means the intercreditor agreement dated on or
before the date of the first Drawing entered into between, amongst others,
each of the parties to the Senior Finance Documents, Finco and each of the
Original Equity Investors;
"INTEREST PERIOD" means a period by reference to which interest is
calculated and payable on an Advance or overdue amount;
7
"INTRA-GROUP BOND DOCUMENTS" means the Intra-Group Bonds, the terms and
conditions of the Intra-Group Bonds set out in the Parent's Board
resolution having decided on their issue and all related and ancillary
documents;
"INTRA-GROUP BONDS" means the subordinated bonds issued by the Parent to
Finco in an aggregate principal amount equal to the aggregate principal
amount of the High Yield Notes and under which payments of interest in
cash by the Parent to Finco are subject to the provisions of the
Intercreditor Agreement, will be no more frequent than semi-annual and
will be at a scheduled rate no higher than 0.130 per cent. per annum above
the interest rate payable in respect of the High Yield Notes;
"INVESTMENT AMOUNT" means the aggregate (without double-counting) of the
following amounts:
(a) any amount advanced, lent, contributed or subscribed for, or
otherwise invested in, a Joint Venture by any Group Company during
any Financial Year;
(b) the market value of any asset transferred (other than by way of a
transfer otherwise permitted under this agreement) or contributed to
a Joint Venture by any Group Company during any Financial Year; and
(c) the maximum liability under any guarantee given by any Group Company
during any Financial Year in respect of any Financial Indebtedness
incurred (whether by way of guarantee or otherwise) by a Joint
Venture;
"ISSUING LENDER" means any Lender in its capacity as issuer of a Bank
Guarantee;
"JOINT VENTURE" means any joint venture, partnership or similar
arrangement (including any Groupement d'interets economiques) or any
company of which the Parent directly or indirectly owns some (but not all
or substantially all) of the equity share capital (but excluding for the
avoidance of doubt any Distribution Company);
"LENDERS" means the Term Lenders and the Revolving Lenders;
"LENDING OFFICE" means the office through which a Lender is acting for the
purposes of this agreement, which, subject to clause 3.2 (Lending Office),
will be the office set opposite the name of that Lender in schedule 1 (or
in any relevant Transfer Certificate);
"LIBOR" means, in relation to any Advance or overdue amount in the
Optional Currency, the rate per annum equal to the offered quotation which
appears on Telerate Screen page 3740 (or any replacement page on that
service) as of 11.00 am (London time) on the applicable Rate Fixing Day
for the Optional Currency for a period comparable to its Interest Period
or, if no Telerate service is available, on any other service which
displays British Bankers Association Interest Settlement Rate for the
Optional Currency which the Facility Agent, after consultation with the
Lenders and the Parent, selects;
"MAJORITY LENDERS" means, at any time:
(a) Lenders whose aggregate Commitments at that time aggregate more than
66.66 per cent. of the Total Commitments at that time; or
(b) if the Total Commitments have at that time been reduced to zero,
Lenders whose Commitments aggregated more than 66.66 per cent. of
the Total Commitments immediately before the relevant reduction;
8
"MANDATORY COST" means the percentage rate per annum calculated by the
Facility Agent in accordance with Schedule 11 (Mandatory Cost Formulae);
"MARGIN" means:
(a) in relation to the Term Facility, 1.45 per cent. per annum, subject
to clause 7.6 (Margin adjustment);
(b) in relation to the Revolving Facility, 1.45 per cent. per annum,
subject to clause 7.6 (Margin adjustment);
"MATERIAL ADVERSE EFFECT" means any effect, event or matter:
(a) which is materially adverse to:
(i) the business, assets or financial condition of the Group
(taken as a whole); and
(ii) the ability of any Obligor to perform any of its payment
obligations under any Senior Finance Document or any of its
obligations under clause 19.11 (Financial Covenants); or
(b) which results in any Security Document not providing to the Security
Agent security over the assets expressed to be secured under that
Security Document;
"MATERIAL COMPANY" means:
(a) each Obligor (other than the Parent), Finco, each Distribution
Company and each Storage and Logistics Company; and
(b) any other Group Company (other than the Parent) whose profits, sales
or gross assets exceed five per cent. of the consolidated profits,
sales or gross assets (as the case of may be) of the Group and, for
this purpose, the calculation of profits, sales or gross assets
shall:
(i) be made in accordance with the Approved Accounting Principles;
(ii) in the case of a company which itself has Subsidiaries, be
made by using the consolidated profits, consolidated sales or
consolidated gross assets (as the case may be) of it and its
Subsidiaries; and
(iii) be made by reference to:
(A) the latest accounts of the relevant Subsidiary used for
the purposes of the then latest Annual Accounts; and
(B) the then latest Annual Accounts;
"MATERIAL CONTRACTS" means the Supply Agreements and the agreements set
out in part 2 of schedule 10;
"MATURITY DATE" means the last day of an Interest Period for a Revolving
Advance;
"MEDIT" means Medit Mediterranea GPL SpA or any of its Affiliates;
9
"NET PROCEEDS" means the aggregate consideration received by any Group
Company in relation to the disposal of all or any part of the assets of
any Group Company (including the amount of any inter-company debt of any
Group Company disposed of which is repaid in connection with that
disposal), but after deducting all Taxes and other reasonable costs and
expenses incurred by continuing Group Companies in connection with that
disposal;
"OBLIGORS" means each Borrower and each Guarantor;
"OPERATING BUDGET" means a budget, in such form and content as the
Facility Agent shall reasonably require, comprising projected balance
sheet, projected profit and loss account and projected cashflow statement
(including details of projected capital expenditure) for the Group and
forecast of the likely financial performance of the Group for a Financial
Year, delivered under clause 19.10 (Information and accounting
undertakings);
"OPTIONAL CURRENCY" means USD;
"ORIGINAL AUDITED ACCOUNTS" means the audited consolidated accounts of the
Group for the Financial Year ending 31 March 2002;
"ORIGINAL EQUITY INVESTORS" means P.A.I., UGI and Medit;
"ORIGINAL MANAGEMENT ACCOUNTS" means the consolidated management accounts
of the Group for the Financial Year ending 31 March 2003;
"P.A.I." means FCPR PAI Europe III, a series of fonds communs de placement
a risques established and managed or advised by P.A.I. Partners (formerly
P.A.I. Management), or any fund or entity which is established and managed
or advised by P.A.I. Partners;
"PARTICIPATING MEMBER STATES" has the meaning given to it in council
Regulation EC No. 1103/97 of 17 June, 1997 made under Article 235 of the
Treaty on European Union;
"PARTLY OWNED STORAGE AND LOGISTICS COMPANY" means a Storage and Logistics
Company which is not a wholly-owned Subsidiary (whether directly or
indirectly) of the Parent;
"PERMITTED ACQUISITION" means any acquisition (the "PROPOSED ACQUISITION")
by a Group Company of all the shares in a company or substantially all of
the assets of a business, provided that:
(a) the company or the business which is the subject of the Proposed
Acquisition carries on a similar or complementary business to that
carried on by the Group;
(b) the chief financial officer (or any board member) of the Parent
certifies to the Lenders (such certificate to contain calculations
in reasonable detail) that the ratio of Total Net Debt to EBITDA of
the Group tested by reference to the Testing Period ending on the
Testing Date immediately preceding the date on which the Proposed
Acquisition is completed but calculated including the Proposed
Acquisition and quantifiable synergies from the Proposed Acquisition
(such as purchasing synergies) will be no greater than the maximum
level for such ratio as at that Testing Date as provided under
clause 19.11(c) (Financial Covenants);
"POTENTIAL EVENT OF DEFAULT" means an event specified in clause 20.1
(Events of Default) which, with the giving of notice, the lapse of time or
the making of any determination would constitute an Event of Default;
10
"PRIVATE EQUITY CONTRIBUTION" means:
(a) any increase in the share capital of the Parent by way of cash
contribution by the Equity Investors; or
(b) the incurrence by the Parent of Financial Indebtedness provided to
it by any Equity Investor pursuant to an unsecured loan or other
debt or debt equity instrument in each case deeply subordinated
(with capitalised interests) on terms acceptable to the Facility
Agent;
"QUALIFYING LENDER" means, for the purposes of any Drawing by a Borrower,
a bank or financial institution which:
(a) is for the time being participating in that Drawing through a
branch, agency or Affiliate in the jurisdiction of residence of that
Borrower; or
(b) is resident in a country with which the jurisdiction of residence of
the Borrower has an appropriate double taxation treaty which, under
its terms, provides at the date on which that bank or financial
institution becomes a Lender for full relief from that
jurisdiction's income tax on that jurisdiction's source interest for
an entity such as that bank or other financial institution when
acting through the branch, agency of Affiliate through which it is
acting for the purposes of that Drawing;
"RATE FIXING DAY" means, in relation to any period for which EURIBOR or
LIBOR is to be determined:
(a) in the use of EURIBOR, two Target Days before the first day of that
period, or
(b) in the use of LIBOR, two Business Days before the first day of that
period;
unless market practice differs in the relevant interbank market for a
currency, in which case the Rate Fixing Day for that currency will be
determined by the Facility Agent in accordance with market practice in the
relevant interbank market;
"RECEIVABLES" means, in relation to a Borrower, at any time, the unpaid
portions of the obligations of any trade debtor of that Borrower in
respect of the supply of goods or services by that Borrower;
"REFINANCING" means the refinancing of the Existing Facilities;
"REFINANCING COSTS" means all fees, costs and expenses incurred by the
Obligors for the purpose of or in connection with the Refinancing;
"REPAYMENT DATES" means each date on which an instalment is due for
repayment under clause 10.1 (Term Advance), the Term Final Repayment Date
and the Revolving Facility Repayment Date;
"REVOLVING ADVANCE" means the principal amount of each advance made or to
be made under the Revolving Facility, as reduced from time to time by
repayment or prepayment;
"REVOLVING COMMITMENT" means:
(a) in relation to a Lender identified in schedule 1, the amount set
opposite its name under the heading "Revolving Commitment" in
schedule 1 and the amount of any other Revolving Commitment
transferred to it under this agreement; or
11
(b) in relation to any other Lender, the amount of any Revolving
Commitment transferred to it under this agreement,
to the extent not cancelled, reduced or transferred by it under this
agreement;
"REVOLVING FACILITY" means the revolving credit facility made available by
the Revolving Lenders under clause 2.1(b) (Facilities);
"REVOLVING FACILITY REPAYMENT DATE" means 30 June 2008;
"REVOLVING LENDERS" means:
(a) the persons identified in schedule 1 as participating in the
Revolving Facility; and
(b) each Transferee which has become a party to this agreement in
relation to the Revolving Facility in accordance with clause 26
(Changes to parties),
in each case until its entire participation in the Revolving Facility has
been assigned or transferred to a Transferee in accordance with clause 26
(Changes to parties) and all amounts owing to it under the Senior Finance
Documents in relation to the Revolving Facility have been paid in full;
"RHONE GAZ" has the meaning given to it in part 2 of schedule 9;
"SALE AND PURCHASE AGREEMENT" means the agreement (protocole d'accord)
dated 16 February 2001, as amended pursuant to amendment agreements dated
26 March 2001 and 22 August 2001, relating to the acquisition of the
shares of Antargaz made between, amongst others, the Parent as purchaser
and the Vendors;
"SECURITY DOCUMENTS" means each of the security documents specified in
schedule 2 and all other documents creating, evidencing or granting a
Security Interest in favour of any Finance Party in relation to the
obligations of any Obligor under any Senior Finance Document;
"SECURITY INTEREST" means any mortgage, pledge, lien, right of set-off,
assignment by way of security, reservation of title, any other security
interest or any other agreement or arrangement (including a sale and
repurchase arrangement) having the commercial effect of conferring
security;
"SENIOR FINANCE DOCUMENTS" means this agreement, each Security Document,
the Intercreditor Agreement, each Hedging Agreement, each Accession
Document, each Transfer Certificate, the Fees Letter, the Disclosure
Letter, the subordination provisions expressed to be given for the benefit
of the Finance Parties in the High Yield Documents and any other document
designated as a Senior Finance Document by the Parent and the Facility
Agent;
"SENIOR MANAGEMENT TEAM" means Mr. Francois Varagne, Mr. Yves de Gerard,
Mr. Duprez and Mr. Delaplace;
"SERVICE CONTRACTS" means the contracts of employment made between
Antargaz and each member of the Senior Management Team;
"SHAREHOLDERS AGREEMENT" means the shareholders agreement dated 9 April
2002 between the Original Equity Investors governing the relationship
between the Original Equity Investors as shareholders in the Parent;
"SIGNING DATE" means the date of this agreement;
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"SOBEGAL" has the meaning given to it in part 2 of schedule 9;
"STORAGE AND LOGISTICS COMPANIES" means the companies and other corporate
entities listed in part 2 of schedule 9;
"SUBSIDIARY" means:
(a) an entity of which a company or other entity has from time to time
direct or indirect control (as defined in article L233-3 of the
French Commercial Code (as in force at the date of this agreement,
but excluding paragraph III thereof)); or
(b) any other company or other entity in respect of which, in accordance
with the Approved Accounting Principles, the assets, liabilities,
income and expenses are added to those of the Parent in accordance
with the full consolidation method referred to in the Disclosure
Letter for the purposes of the preparation of consolidated financial
statements of the Parent;
"SUPPLY AGREEMENTS" means the agreements set out in part 1 of schedule 10;
"SYNDICATION DATE" means the earlier of:
(a) the date the Facility Agent notifies the Parent and the other
Finance Parties that primary syndication has been completed; and
(b) the date falling 90 days after the first Drawdown Date;
"SYNDICATION MEMORANDUM" has the meaning given to it in clause 3.4(a)(i)
(Syndication);
"TARGET DAY" means a day on which the Trans-European Automated Real-Time
Gross Settlement Express Transfer system is operating;
"TAXES" means all present and future income and other taxes, levies,
assessments, imposts, deductions, charges, duties, compulsory loans and
withholdings (wherever imposed) and any charges in the nature of taxation
together with interest thereon and penalties and fines in relation
thereto, if any, and any payments made on or in relation thereof and
"TAXATION" shall be construed accordingly;
"TERM ADVANCE" means the principal amount of the advance made or to be
made under the Term Facility, as reduced from time to time by repayment or
prepayment;
"TERM COMMITMENT" means:
(a) in relation to a Lender identified in schedule 1, the amount set
opposite its name under the heading "Term Commitment" in schedule 1
and the amount of any other Term Commitment transferred to it under
this agreement; or
(b) in relation to any other Lender, the amount of any Term Commitment
transferred to it under this agreement,
to the extent not cancelled, reduced or transferred by it under this
agreement;
"TERM FACILITY" means the term loan facility made available by the Term
Lenders under clause 2.1(a) (Facilities);
"TERM FINAL REPAYMENT DATE" means 30 June 2008;
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"TERM LENDERS" means:
(a) the persons identified in schedule 1 as participating in the Term
Facility; and
(b) each Transferee which has become a party to this agreement in
relation to the Term Facility in accordance with clause 26 (Changes
to parties),
in each case until its entire participation in the Term Facility has been
assigned, cancelled or transferred to a Transferee in accordance with
clause 26 (Changes to parties) and all amounts owing to it under the
Senior Finance Documents in relation to the Term Facility have been paid
in full;
"TOTAL COMMITMENTS" means the aggregate of all the Commitments at any
time;
"TRANSACTION DOCUMENTS" means the Senior Finance Documents, the Equity
Documents, the Acquisition Documents, the Supply Agreements, the Service
Contracts, the High Yield Documents and the Intra-Group Bond Documents;
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in part 1 of schedule 5;
"TRANSFEREE" has the meaning given to it in clause 26.2(a) (Assignments
and transfers by Lenders);
"TREATY ON EUROPEAN UNION" means the Treaty of Rome signed on 25 March
1957 as amended by the Single European Act 1986 and the Maastricht Treaty
signed on 7 February 1992;
"UGI" means UGI France, Inc., a Subsidiary of UGI Corporation, or any of
its Affiliates;
"USD DOLLAR", "DOLLAR" or "USD" means the lawful currency for the time
being of the United States of America;
"WARRANTY AGREEMENT" means the warranty agreement (convention de garantie)
dated 16 February 2001, as amended on 22 August 2001, made between the
Vendors and the Purchaser in connection with the Sale and Purchase
Agreement; and
"VENDORS" means Elf Antar France and Elf Aquitaine.
1.2 CONSTRUCTION
In this agreement, unless a contrary intention appears, a reference to:
(a) a document being "IN THE AGREED FORM" means in a form agreed between
the Parent and the Facility Agent;
(b) an "AGREEMENT" includes any legally binding arrangement, concession,
contract, deed or franchise (in each case whether oral or written);
(c) an "AMENDMENT" includes any amendment, supplement, variation,
novation, modification, replacement or restatement and "AMEND",
"AMENDING" and "AMENDED" shall be construed accordingly;
(d) "ASSETS" includes property, business, undertaking and rights of
every kind, present, future and contingent (including uncalled share
capital) and every kind of interest in an asset;
14
(e) a "CONSENT" includes an authorisation, approval, exemption, licence,
order, permission or waiver;
(f) a "FILING" includes any filing, registration, recording or notice;
(g) a "GUARANTEE" includes:
(i) an indemnity;
(ii) a cautionnement simple, a cautionnement solidaire and a
garantie autonome; and
(iii) any other obligation (whatever called) of any person:
(A) to pay, purchase, provide funds (whether by the advance
of money, the purchase of or subscription for shares or
other investments, the purchase of assets or services,
the making of payments under an agreement or otherwise)
for the payment of, indemnify against the consequences
of default in the payment of, or otherwise be
responsible for, any indebtedness of any other person;
or
(B) to be responsible for the performance of any obligations
by or the solvency of any other person,
and "GUARANTEED" and "GUARANTOR" shall be construed accordingly;
(h) "INCLUDING" means including without limitation and "INCLUDES" and
"INCLUDED" shall be construed accordingly;
(i) "INDEBTEDNESS" includes any obligation (whether incurred as
principal, guarantor or as surety) for the payment or repayment of
money, whether present or future, actual or contingent;
(j) "LOSSES" includes losses, actions, damages, claims, proceedings,
costs, demands, expenses (including fees) and liabilities and "LOSS"
shall be construed accordingly;
(k) a "MONTH" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar
month, except that:
(i) if any such period would otherwise end on a day which is not a
Business Day, it shall end on the next Business Day in the
same calendar month or, if none, on the preceding Business
Day; and
(ii) if a period starts on the last Business Day in a calendar
month, or if there is no numerically corresponding day in the
month in which that period ends, that period shall end on the
last Business Day in that later month,
and references to "MONTHS" shall be construed accordingly;
(l) a "PERSON" includes any person, individual, firm, company,
corporation, government, state or agency of a state or any
undertaking or other association (whether or not having separate
legal personality) or any two or more of the foregoing;
15
(m) a "REGULATION" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law) of any
governmental body, agency, department or regulatory, self-regulatory
or other authority or organisation; and
(n) the "WINDING-UP" of any person includes its dissolution and/or
termination and/or any equivalent or analogous proceedings under the
law of any jurisdiction in which that person is incorporated,
registered, established or carries on business or to which that
person is subject.
1.3 OTHER REFERENCES
In this agreement, unless a contrary intention appears:
(a) a reference to any person is, where relevant, deemed to be a
reference to or to include, as appropriate, that person's successors
and permitted assignees or transferees;
(b) references to clauses and schedules are references to, respectively,
clauses of and schedules to this agreement and references to this
agreement include its schedules;
(c) a reference to (or to any specified provision of) any agreement or
document (including the Senior Finance Documents) is to be construed
as a reference to that agreement or document (or that provision) as
it may be amended from time to time, but excluding for this purpose
any amendment which is contrary to any provision of any Senior
Finance Document;
(d) a reference to a statute, statutory instrument or accounting
standard or any provision thereof is to be construed as a reference
to that statute, statutory instrument or accounting standard or such
provision thereof, as it may be amended or re-enacted from time to
time;
(e) a time of day is a reference to Paris time;
(f) the index to and the headings in this agreement are inserted for
convenience only and are to be ignored in construing this agreement;
and
(g) words importing the plural shall include the singular and vice
versa.
1.4 CASH COVER
(a) If a Borrower is obliged under this agreement to repay or prepay or
provide cash cover in relation to any contingent liability under a
Bank Guarantee that Borrower shall, on the date for that repayment,
prepayment or provision of cash cover:
(i) by agreement with the relevant Beneficiary, reduce that
contingent liability by the relevant amount; or
(ii) pay the relevant amount to the credit of a Cash Collateral
Account.
(b) Any amounts standing to the credit of any Cash Collateral Account
shall bear interest at the rate normally offered to corporate
depositors on similar deposits by the Finance Party with which that
account is held.
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1.5 CURRENCY CONVERSION
For the purposes of the Senior Finance Documents (other than clauses 19.11
(Financial covenants) to 19.14 (Calculation adjustments) (inclusive)), if
a Euro amount needs to be determined, any amount which is denominated in a
currency other than Euro will be converted into Euro using the Euro Spot
Rate on that date.
2. THE FACILITIES
2.1 FACILITIES
Subject to the other provisions of this agreement:
(a) the Term Lenders agree to make available to the Parent, a term loan
facility in a maximum aggregate principal amount not exceeding EUR
220,000,000, which shall be available by way of a single Term
Advance in Euro;
(b) the Revolving Lenders agree to make available to the Borrowers a
revolving credit facility in a maximum aggregate principal amount
not exceeding EUR 50,000,000 (or its equivalent in the Optional
Currency), which shall be available by way of Revolving Advances and
Bank Guarantees in Euro and/or the Optional Currency).
2.2 PURPOSE
(a) The proceeds of the Term Advance shall be applied in or towards
discharging existing indebtedness of the Parent under the Existing
Term Facilities.
(b) The proceeds of the Revolving Advances and each Bank Guarantee shall
be used for the working capital requirements of Group Companies
arising after the first Drawdown Date (excluding any payment of the
purchase price for the assets acquired in accordance with clause
19.4 (Acquisition and investment undertakings)), provided however
that a Revolving Advance may be drawn down by the Parent on the
first Drawdown Date for the purpose of discharging existing
indebtedness of the Parent under the Existing Term Facility provided
that, if made, such first Revolving Advance shall be repaid no later
than four Business Days after the first Drawdown Date out of the
cash of the Parent (and not out of the proceeds of a Rollover
Advance).
(c) No Finance Party shall be obliged to enquire about, or be
responsible for, the use or application of amounts borrowed under
this agreement.
2.3 PARENT AS OBLIGORS' AGENT
Each Obligor irrevocably appoints the Parent as its agent for the purpose
of:
(a) executing and delivering on its behalf any Accession Document and
any other agreement or document capable of being entered into by
that Obligor under or in connection with the Senior Finance
Documents;
(b) giving and receiving any notice or instruction under or in
connection with any Senior Finance Document (including any Drawdown
Request); and
17
(c) agreeing and executing all consents, waivers, agreements and
amendments (however fundamental and notwithstanding any increase in
obligations of or other effect on an Obligor) entered into in
connection with the Senior Finance Documents (including confirmation
of continuation of guarantee obligations in connection with any
amendment or consent in relation to the Facilities).
The appointment of the Parent as the agent of an Obligor for any purpose
set out above does not prevent that Obligor from taking the relevant
action in its own name.
3. PARTICIPATION OF LENDERS
3.1 BASIS OF PARTICIPATION
Subject to the other provisions of this agreement:
(a) each relevant Lender will participate in the Term Advance in the
proportion which its Term Commitment bears to the total Commitments
in relation to the Term Facility as at the relevant Drawdown Date;
and
(b) each Revolving Lender will participate in each Drawing of the
Revolving Facility (in the case of a Bank Guarantee by way of
indemnity in favour of the Issuing Lender under clause 6.4(b)
(Indemnities)) in the proportion which its Revolving Commitment
bears to the total Commitments in relation to the Revolving Facility
as at the relevant Drawdown Date.
3.2 LENDING OFFICE
(a) Each Lender will participate in each Drawing through its Lending
Office.
(b) If any Lender changes its Lending Office for the purpose of the
Facilities, that Lender will, as soon as reasonably practicable
after that change, notify it to the Facility Agent and the Parent
and, until it does so, the Agents and the Parent will be entitled to
assume that no such change has taken place.
(c) Any Lender may nominate a different Lending Office for the purposes
of making a particular Drawing or a particular type of Drawing to an
Obligor in which event such Lending Office shall be, for the
purposes of this agreement, its Lending Office for that Drawing or
type of Drawing but not otherwise.
3.3 RIGHTS AND OBLIGATIONS OF FINANCE PARTIES
(a) The rights and obligations of each of the Finance Parties under the
Senior Finance Documents are several (conjointes mais non
solidaires). The failure by a Finance Party to comply with its
obligations under any Senior Finance Document shall not:
(i) result in any other Finance Party incurring any liability; or
(ii) relieve any Obligor or any other Finance Party from its
obligations under the Senior Finance Documents.
(b) Subject to the other provisions of the Senior Finance Documents,
each Finance Party has the right to protect and enforce its rights
arising out of the Senior Finance Documents and it will not be
necessary for any other Finance Party to be joined as an additional
party in any proceedings brought for the purpose of protecting or
enforcing those rights.
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3.4 SYNDICATION
(a) The Facilities are being made available by the Lenders with the
intention (but not the obligation) that the Facility Agent should
co-ordinate primary syndication. Each Obligor undertakes to assist
and co-operate with the Facility Agent in syndication in such a
manner and to such an extent as the Facility Agent may reasonably
request, including by:
(i) the preparation, review and approval of a syndication
information memorandum in relation to the Group and the
business, trading, prospects, financial condition, assets and
liabilities of the Group as a whole and of each Group Company;
(ii) participating in presentations to potential Lenders concerning
the activities of the Group as a whole and of each Group
Company; and
(iii) selecting Interest Periods in relation to Advances no longer
than one month in relation to all Advances made on or before
the date falling 90 days after the first Drawdown Date.
(b) Before the Syndication Date, no Lender may assign, transfer,
sub-participate, sub-contract or deliver a Transfer Certificate in
relation to all or any part of its rights or obligations under any
Senior Finance Document without the prior consent of the Facility
Agent.
4. CONDITIONS PRECEDENT
4.1 INITIAL CONDITIONS PRECEDENT
(a) The Lenders shall not be under any obligation to make the first
Drawing available to any Borrower unless:
(i) the Facility Agent has received all of the documents and
information specified in schedule 3 (Documentary Conditions
Precedent) in form and substance satisfactory to it (acting
reasonably) (or the Facility Agent is satisfied that,
immediately after the making of the Term Advance to be made on
the first Drawdown Date, it will receive those documents and
that information in form and substance satisfactory to it
(acting reasonably));
(ii) the Facility Agent is satisfied that the Refinancing will
occur immediately after the making of the Term Advance and, as
the case may be, a Revolving Advance to be made on the first
Drawdown Date; and
(iii) the relevant funds are available in the relevant money markets
to make the relevant Drawing available.
(b) The Facility Agent shall deliver to the Parent on the Signing Date a
letter containing the list of the documents and information
specified in schedule 3 (Documentary Conditions Precedent) which it
has received in form and substance satisfactory to it on or before
the Signing Date.
4.2 FAILURE TO SATISFY INITIAL CONDITIONS PRECEDENT
Except as the Facility Agent (acting on the instructions of all the
Lenders) agrees otherwise, if the conditions referred to in clause 4.1
(Initial conditions precedent) have not been fulfilled or waived in
writing on or before the last day of the Availability Period for the Term
Facility:
19
(a) all the Commitments will automatically be cancelled; and
(b) the Lenders will cease to have any obligation to make any Drawing
available.
4.3 ADDITIONAL CONDITIONS PRECEDENT TO DRAWINGS
Subject to clause 4.4 (Rollover Advances) and subject (in respect of the
first Drawing) to clause 20.3 (Certain Funds Period), the obligations of
the Lenders to make any Drawing available are subject to the conditions
precedent that, on both the date of the relevant Drawdown Request and the
relevant Drawdown Date:
(a) no Default has occurred and is continuing or will occur as a result
of making that Drawing;
(b) the representations and warranties set out in clause 18
(Representations and Warranties) which are made or repeated on those
dates are true and accurate in all material respects by reference to
the facts and circumstances then subsisting and will remain true and
accurate in all material respects immediately after that Drawing is
made; and
(c) the relevant funds are available in the relevant money markets to
make the relevant Drawing available.
4.4 ROLLOVER ADVANCES
If, in relation to a Revolving Advance (the "ROLLOVER ADVANCE"):
(a) either of the conditions specified in clause 4.3(a) or (b)
(Additional conditions precedent to Drawings) is not satisfied on
the Drawdown Date for the new Revolving Advance;
(b) the amount of the Rollover Advance does not exceed the amount of an
existing Revolving Advance (the "EXISTING REVOLVING ADVANCE") which
is due to be repaid on the Drawdown Date of the new Revolving
Advance; and
(c) the proceeds of the Rollover Advance are applied in repaying the
existing Revolving Advance,
then, unless any notice is then outstanding under clause 20.2
(Cancellation and repayment), the Lenders may not refuse to advance the
Rollover Advance by reason of the conditions specified in clause 4.3(a) or
(b) (Additional conditions precedent to Drawings) not being satisfied.
5. DRAWDOWN PROCEDURES
5.1 DELIVERY OF DRAWDOWN REQUESTS
In order to utilise a Facility, the relevant Borrower must deliver to the
Facility Agent a duly completed Drawdown Request:
(a) in the case of any Advance to be borrowed on the first Drawdown
Date, not later than 10:00 am on that date; and
(b) in the case of any other Advance, not later than 10:00 am three
Business Days before the proposed Drawdown Date.
5.2 CONTENT OF DRAWDOWN REQUESTS
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Each Drawdown Request delivered to the Facility Agent must be in the
applicable form set out in schedule 4 and must specify (or attach, as
appropriate) the following:
(a) which Facility is to be utilised;
(b) the identity of the Borrower;
(c) the proposed Drawdown Date, which must be a Business Day during the
relevant Availability Period;
(d) if the Drawing is by way of Advance, the amount and currency of that
Advance, which must:
(i) in the case of a Term Advance, be an amount in Euro equal to
the undrawn Term Commitments;
(ii) in the case of a Revolving Advance, be in an amount equal to
or less than (and in the case of a Revolving Advance in the
Optional Currency have a Euro Equivalent equal to or less
than) the undrawn portion of the total Commitments in relation
to the Revolving Facility and, if less (save for a Revolving
Advance made in accordance with clause 6.9 (Revolving Advance
to fund demands under Bank Guarantees)):
(A) in the case of a Revolving Advance in Euro, a minimum of
EUR 2,500,000 and an integral multiple of EUR 500,000;
and
(B) in the case of a Revolving Advance in the Optional
Currency, an amount in the Optional Currency having an
Euro Equivalent of not less than EUR 2,500,000 or, if
higher, being the Euro Equivalent of an integral
multiple of EUR 500,000; or
(e) if the Drawing is by way of an Advance, the duration of the Interest
Period applicable to the Revolving Advance or the first Interest
Period applicable to the relevant Term Advance (as the case may be),
which must comply with clause 8 (Selection of Interest Periods);
(f) if the Drawing is by way of an Advance, details of the payee and the
account to which the proceeds of the Drawing are to be paid; and
(g) if the Drawing is by way of a Bank Guarantee:
(i) the amount and currency of that Bank Guarantee, which must be
in an amount equal to or less than (and in the case of a Bank
Guarantee in the Optional Currency have a Euro Equivalent
equal to or less than) the undrawn portion of the total
Commitments in relation to the Revolving Facility and, if
less:
(A) in the case of a Bank Guarantee denominated in Euro, a
minimum of EUR 100,000; or
(B) in case of a Bank Guarantee denominated in the Optional
Currency, an amount in the Optional Currency having an
Euro Equivalent of not less than EUR 100,000;
(ii) the Beneficiary of that Bank Guarantee;
(iii) the expiry date of that Bank Guarantee, which must be a date
on or before the Revolving Facility Repayment Date;
21
(iv) the obligation to which the issue of that Bank Guarantee
relates; and
(v) the execution copy of the Bank Guarantee to be issued (which
must be in a form previously agreed by the Parent, the
Facility Agent and the relevant Issuing Lender).
5.3 REQUESTS IRREVOCABLE
A Drawdown Request once given may not be withdrawn or revoked.
5.4 NUMBER AND FREQUENCY OF REQUESTS
(a) No more than one Term Advance in respect of the Term Facility may be
borrowed.
(b) No more than one Drawing of the Revolving Facility may be requested
in any period of five consecutive Business Days and not more than
three Drawings of the Revolving Facility may be borrowed in any
calendar month. No more than eight Revolving Advances (excluding any
Revolving Advance made in accordance with clause 6.9 (Revolving
Advance to fund demands under the Bank Guarantees) and fifteen Bank
Guarantees (or, in each case, any higher number agreed by the
Facility Agent) may be outstanding at any one time.
(c) No Revolving Advance may be borrowed unless the Term Advance has
been, or is being, advanced in full on or before the proposed
Drawdown Date of the relevant Revolving Advance.
5.5 NOTICE TO THE LENDERS OF A PROPOSED DRAWING
The Facility Agent will promptly give each Lender details of each Drawdown
Request received and of the amount of that Lender's participation in the
Drawing referred to in that Drawdown Request.
5.6 MAKING OF ADVANCES
Subject to the provisions of this agreement, each Lender will make
available to the Facility Agent its participation in the relevant Advance
on the relevant Drawdown Date.
5.7 ISSUE OF BANK GUARANTEES
(a) Subject to the provisions of this agreement, the Issuing Lender will
issue the relevant Bank Guarantee requested by delivery of that Bank
Guarantee to (or to the order of) the relevant Beneficiary on the
relevant Drawdown Date.
(b) No Bank Guarantee shall be issued for the account of a Group Company
which is not a Borrower.
(c) Any Lender which agrees with the Parent and the Facility Agent that
it will issue Bank Guarantees will be the Issuing Lender. The
Facility Agent shall notify the Lenders of any such agreement.
5.8 EXPIRY
No Drawing of the Revolving Facility will be permitted which gives rise to
an actual or contingent liability of the relevant Borrower to any Lender
which may mature after or otherwise extend beyond the Revolving Facility
Repayment Date.
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5.9 AUTOMATIC CANCELLATION
Any part of the Term Commitments undrawn on the last day of the
Availability Period for the Term Facility will be automatically cancelled.
5.10 REVOLVING FACILITY COMMITMENT
On the date on which any Drawing is requested (whether or not in the
Optional Currency) under the Revolving Facility, the Facility Agent shall
determine whether the aggregate of:
(a) the amount in Euro of that Drawing or, if denominated in the
Optional Currency, the Euro Equivalent (determined as at or about
11:00 am three Business Days prior to the relevant Drawing Date) of
that Drawing; and
(b) the Euro Equivalent (determined as at or about 11:00 am three
Business Days prior to the relevant Drawing Date) of each existing
Revolving Advance denominated in the Optional Currency which will be
outstanding on the relevant Drawing Date; and
(c) each existing Revolving Advance denominated in Euro which will be
outstanding on the relevant Drawing Date; and
(d) the Euro Equivalent (determined as at or about 11:00 am two Business
Days prior to the relevant Drawing Date) of the total Contingent
Liability of all the Lenders under Bank Guarantees already issued
and denominated in the Optional Currency which will be outstanding
on the relevant Drawing Date; and
(e) the total Contingent Liability of all the Lenders under Banks
Guarantees already issued and denominated in Euro which will be
outstanding on the relevant Drawing Date,
exceeds the total Commitments in relation to the Revolving Facility. In
the event that the total Commitments in relation to the Revolving Facility
are so exceeded the requested Drawing under the Revolving Facility shall
be reduced by the amount by which the total Commitments in relation to the
Revolving Facility are so exceeded.
5.11 OPTIONAL CURRENCY AVAILABILITY
If a Borrower requests a Drawing denominated in the Optional Currency
under the Revolving Facility and, before 10:00 am on the Rate Fixing Day
for that Drawing, the Facility Agent receives notice from a Lender (an
"AFFECTED LENDER") that:
(a) the Optional Currency is not readily available to it in the amount
required; or
(b) compliance with its obligation to participate in a Drawing in the
Optional Currency would contravene a law or regulation applicable to
that Affected Lender, then:
(i) the Facility Agent will notify the relevant Borrower to that
effect by 12.00 am (noon) on that Rate Fixing Day;
(ii) following any such notification the relevant Borrower may
notify the Facility Agent by 2.00 pm on that Rate Fixing Day
that it no longer requires that Drawing to be made;
(iii) if the Facility Agent does not receive notification under
clause 5.11(b)(ii), the relevant Borrower and the Facility
Agent shall agree to adjust the amount of the Drawing to
exclude the participation of the Affected Lender; and
23
(iv) in the case of a Drawing by way of Advance, the Affected
Lender shall make a separate Revolving Advance in Euro in an
amount equal to the Euro Equivalent of the Affected Lender's
proposed participation in the Advance requested.
5.12 OPTIONAL CURRENCY FLUCTUATIONS
(a) The Facility Agent shall, if so requested by the Majority Lenders:
(i) calculate the aggregate Euro Equivalent of all outstanding
Drawings under the Revolving Facility as at the end of the
quarter in which that request was made (or on any other date
reasonably requested by the Majority Lenders); and
(ii) if the amount calculated under clause 5.12(a)(i) exceeds the
aggregate Revolving Commitments by more than five per cent.,
notify the Parent to that effect.
(b) Within five Business Days of any notification under clause
5.12(a)(ii), the Parent shall prepay (or procure the prepayment of)
Drawings under the Revolving Facility so as to reduce the aggregate
Euro Equivalent of all outstandings under the Revolving Facility to
an amount not exceeding the aggregate Revolving Commitments.
6. DEMANDS UNDER BANK GUARANTEES
6.1 DEMANDS
Each Issuing Lender shall, as soon as reasonably practicable after receipt
by it of any demand under any Bank Guarantee, notify the Facility Agent of
the amount of that demand and the Facility Agent, as soon as reasonably
practicable after receipt of any such notice, shall notify the Parent, the
Borrower for whose account that Bank Guarantee was issued (the "ACCOUNT
PARTY") and the Revolving Lenders.
6.2 PAYMENTS
(a) The Account Party shall, immediately after receipt of any notice
from the Facility Agent under clause 6.1 (Demands), pay to the
Facility Agent (for the account of the relevant Issuing Lender) the
amount demanded from that Issuing Lender (as notified to the
Facility Agent under clause 6.1 (Demands)), less any amount standing
to the credit of any Cash Collateral Account which has been paid to
the credit of that Cash Collateral Account to provide cash cover in
relation to the Bank Guarantee under which the relevant Issuing
Lender has received demand (a "RELEVANT CREDIT").
(b) The Facility Agent shall pay to the relevant Issuing Lender any
amount received by it from the Account Party under clause 6.2(a)
together with any Relevant Credit.
(c) The Facility Agent is irrevocably authorised by the Account Party,
following a demand under any Bank Guarantee, to apply any Relevant
Credit in satisfaction of the Account Party's obligations in
relation to that Bank Guarantee.
6.3 AUTHORITY TO PAY
The Account Party irrevocably authorises each Issuing Lender to pay
(without investigation or confirmation by it) any demand which appears on
its face to be validly made under any Bank Guarantee issued by that
Issuing Lender and agrees that, as between itself, the relevant Issuing
Lender and the Lenders, that demand (in the absence of manifest error)
shall be conclusive evidence that the demand has been properly made.
24
6.4 INDEMNITIES
(a) The Account Party irrevocably and unconditionally agrees to
indemnify each Issuing Lender on demand against all losses which may
be suffered or incurred by that Issuing Lender under or in
connection with any Bank Guarantee.
(b) Without prejudice to the Account Party's obligations under clause
6.4(a), each Revolving Lender irrevocably, unconditionally and
severally agrees to pay to each Issuing Lender on demand an amount
equal to its proportion of the amount which that Issuing Lender has
paid under the relevant Bank Guarantee less the amount recovered
from the Account Party under clause 6.4(a). No Revolving Lender is
liable under this clause 6.4(b) for an amount greater than its
proportion of the Contingent Liability under the relevant Bank
Guarantee (unless the relevant Revolving Lender fails to pay the
relevant Issuing Lender on demand, in which event it will compensate
that Issuing Lender for all losses it suffers as a result of that
failure).
(c) The Account Party irrevocably and unconditionally agrees to pay to
each Revolving Lender on demand an amount equal to all payments by
that Revolving Lender under clause 6.4(b) and to indemnify that
Revolving Lender against all other losses which may be suffered or
incurred by that Revolving Lender under or in connection with its
obligations under clause 6.4(b).
6.5 INTEREST
The Account Party shall pay interest on all amounts paid by an Issuing
Lender under or in connection with any Bank Guarantee or by any Revolving
Lender under clause 6.4(b) (Indemnities) from (and including) the date of
payment by that Issuing Lender or that Revolving Lender up to (and
including) the date of payment, calculated and payable in accordance with
clause 7.4 (Default interest).
6.6 CONTINUING INDEMNITY
(a) The indemnities contained in clause 6.4 (Indemnities) (the
"INDEMNITIES"):
(i) will remain in full force and effect until all the amounts to
which the Indemnities are expressed to relate have been paid
in full; and
(ii) are in addition to and are not in any way prejudiced by any
other security now or subsequently held by any person.
(b) Any settlement or discharge of any claim under any of the
Indemnities shall be conditional on no payment made under the
Indemnities being avoided or set aside or ordered to be refunded by
virtue of any provision of any enactment relating to bankruptcy,
insolvency or liquidation.
6.7 NO DISCHARGE
The Indemnities shall not be discharged, diminished or in any way
adversely affected as a result of any of the following (whether or not
known to any Obligor or Finance Party):
(a) any time or waiver given to, or composition made with, any Obligor
or any other person;
(b) any amendment to, or replacement of, any Senior Finance Document
(however fundamental), or any other agreement or security;
25
(c) the taking, variation, compromise, renewal, release or refusal or
neglect to perfect or enforce any right, remedies or security
against any Obligor or any other person;
(d) any purported obligation of any Obligor or any other person to any
Finance Party (or any security for that obligation) becoming wholly
or partly void, invalid, illegal or unenforceable for any reason;
(e) any incapacity, lack of power, authority or legal personality or any
change in the constitution of, or any amalgamation, consolidation or
reconstruction of, any Obligor, Finance Party or other person;
(f) any Obligor or other person becoming insolvent going into
receivership or liquidation, having an administrator appointed or
becoming subject to any other procedure for the suspension of
payments to or protection of creditors; or
(g) any other act, omission, circumstance, matter or thing which, but
for this provision, might operate to impair the Indemnities.
6.8 NO SUBROGATION
No Account Party shall, by virtue of any payment made under the
Indemnities, claim any right of subrogation, contribution or indemnity
against any person for so long as any amount remains payable or capable of
becoming payable under any Senior Finance Document.
6.9 REVOLVING ADVANCE TO FUND DEMANDS UNDER BANK GUARANTEES
(a) Without prejudice to the relevant obligations of the Account Party
under clause 6.2 (Payments), forthwith on the making of a demand
pursuant to a Bank Guarantee (other than a demand made after the end
of the Availability Period for the Revolving Facility), unless
otherwise agreed between the Facility Agent and the Parent, the
liability of the Account Party to indemnify the Issuing Lender in
respect of that demand shall be deemed to have been fulfilled on the
date of satisfaction by the Issuing Lender of that demand and the
Account Party shall be deemed to have drawn a Revolving Advance in
the currency of the relevant Bank Guarantee in the amount of that
resulting liability so paid by the Issuing Lender, the proceeds of
which shall be deemed forthwith to have been applied in discharge of
that liability. The participation of each Revolving Lender in any
such Advance shall be in the amount equal to the amount of its
participation in the relevant Bank Guarantee by way of indemnity
under clause 6.4(b) (Indemnities).
(b) The Interest Period relating to any Revolving Advance deemed made
pursuant to clause 6.9(a) shall be deemed to begin on (and the
Drawdown Date for that Revolving Advance (for the purpose of
determining the applicable EURIBOR shall be deemed to be)) the date
on which the relevant Issuing Lender makes payment under the
relevant Bank Guarantee and that Interest Period shall be one month
(or any other period which the Facility Agent and the Parent agree).
All provisions of this agreement relating to Revolving Advances (as
applicable) (including the provisions of clause 4 (Conditions
precedent) and all provisions relating to the payment of interest
and the repayment and prepayment of principal in respect of
Revolving Advances) shall apply to any such Revolving Advance.
7. INTEREST
7.1 RATE
26
The rate of interest on each Advance for each of its Interest Periods is
the rate per annum determined by the Facility Agent to be the aggregate
of:
(a) the Margin for that Advance;
(b) EURIBOR or LIBOR, as the case may be, for that Advance during that
Interest Period; and
(c) any applicable Mandatory Cost.
7.2 CALCULATION
Interest will accrue daily from and including the first day of an Interest
Period and be calculated on the basis of a 360 day year.
7.3 PAYMENT
Each Borrower will pay interest accrued on each Advance made to it to the
Facility Agent (for the account of the Lenders) in arrear on the last day
of each Interest Period for that Advance and also, where that Interest
Period is longer than six months, on the last day of each consecutive
period of six months from (and including) the first day of that Interest
Period.
7.4 DEFAULT INTEREST
If an Obligor fails to pay any amount under any Senior Finance Document on
its due date (including any amount payable under this clause 7.4) (an
"OVERDUE AMOUNT"), that Obligor will pay default interest on that overdue
amount from its due date to the date of actual payment (both before and
after judgement) at a rate (the "DEFAULT RATE") determined by the Facility
Agent to be one per cent. per annum above:
(a) where the overdue amount is principal which has become due and
payable before the expiry of the relevant Interest Period, the rate
applicable to that principal immediately before the date it fell due
(but only for the period from that due date to the end of the
relevant Interest Period); or
(b) in any other case (including principal falling within clause 7.4(a)
once the relevant Interest Period has expired), the rate which would
be payable if the overdue amount was an Advance made for a period
equal to the period of non-payment divided into successive Interest
Periods of a duration selected by the Facility Agent (each a
"DEFAULT INTEREST PERIOD").
For the purposes of determining the rate of interest on an overdue amount
under this clause 7.4, the Margin will be:
(a) if that amount comprises principal or interest or any other amount
due in relation to a Facility, the Margin relating to that Facility;
or
(b) if that amount is not properly attributable to a Facility, the
Margin under the Term Facility.
7.5 COMPOUNDING
Default interest will be payable on demand by the Facility Agent and will
be compounded in accordance with article 1154 of the French Civil Code.
7.6 MARGIN ADJUSTMENT
27
(a) Subject to clauses 7.6(b) to (d) (inclusive), if at any time as from
the date of delivery to the Facility Agent of the Annual Accounts
for the Financial Year ending 31 March 2004, the Annual Accounts or
the Half-Year Accounts (as the case may be) as at the most recent
Accounting Half-Year end date show that, for the 12 month period
ending on such date, the ratio of Total Net Debt at the end of such
period to EBITDA for such period is:
(i) greater than 3.0:1, the Margin applicable to the Term Facility
and the Revolving Facility will be 1.75 per cent. per annum;
(ii) equal to or less than 3.0:1 but greater than 2.5:1 the Margin
applicable to the Term Facility and the Revolving Facility
will be 1.45 per cent. per annum;
(iii) equal to or less than 2.5:1 but greater than 2.0:1, the Margin
applicable to the Term Facility and the Revolving Facility
will be 1.20 per cent. per annum;
(iv) equal to or less than 2.00:1, the Margin applicable to the
Term Facility and the Revolving Facility will be 0.85 per
cent. per annum.
(b) Any change in the Margin under clause 7.6(a) shall take effect
during (but only during) the period from (and including) the date on
which the Facility Agent has received the Annual Accounts or
Half-Year Accounts, as the case may be (the "ACCOUNTS") (together
with the corresponding compliance certificates in accordance with
clause 19.10(d) (Compliance certificates)) until (but excluding) the
date (a "READJUSTMENT DATE") which is the earlier of:
(i) the date on which the Facility Agent receives the Accounts as
at the end date of the immediately following Accounting Half
Year (together with the corresponding compliance certificate
in accordance with clause 19.10(d) (Compliance certificates));
and
(ii) the latest date by which the Facility Agent should have
received the Accounts referred to in clause 7.6(b)(i) under
clause 19.10(c)(i) or 19.10(c)(ii) (Financial statements),
and, on each Readjustment Date, the Margin applicable to the Term
Facility and the Revolving Facility shall return to 1.75 per cent.
per annum, unless a lower Margin is applicable under this clause
7.6.
(c) No decrease in the Margin shall take effect if an Event of Default
is outstanding. If an Event of Default occurs, the Margin applicable
to the Term Facility and the Revolving Facility shall immediately
return to (if it is not already) 1.75 per cent. per annum, until the
time when no Event of Default is outstanding (when the Margin will
again be determined in accordance with this clause 7.6).
(d) If:
(i) the Margin is:
(A) decreased in accordance with this clause 7.6 by
reference to Half-Year Accounts; or
(B) Half-Year Accounts indicate that no increase in the
Margin is required; and
(ii) subsequent Annual Accounts show that the Half-Year Accounts
were erroneous or incomplete and as a result the margin should
have been higher than the level shown by those Half-Year
Accounts,
28
the Parent shall, promptly following demand by the Facility Agent,
pay (or procure that the Borrowers pay) to the Facility Agent for
the account of the Lenders the additional amount which would have
been payable by the Borrowers if the Margin had been increased to
the correct level during the relevant periods as shown by the
relevant Annual Accounts. The Facility Agent's determination of any
adjustments payable under this clause 7.6(d) shall, except in the
case of manifest error, be conclusive.
7.7 NOTIFICATION
The Facility Agent will notify the Parent and the Lenders of each
determination of an interest rate (including a default rate) and each
selection of a Default Interest Period under this clause 7 as soon as
reasonably practicable after any such determination or selection is made.
7.8 EFFECTIVE GLOBAL RATE
To comply with the provisions of articles L.313-4 to L.313-5 of the French
Monetary and Financial Code (Code Monetaire et Financier), the Parent and
the Lenders declare that the effective global rate for each of the
Facilities cannot be calculated for the total duration of this agreement,
primarily because of the floating rate of interest applicable to the
Facilities and the relevant Borrower's selection of the duration of each
Interest Period. However an example of the effective global rate
calculation and the rate for a one month period shall be provided to the
Parent by the Facility Agent on or before the date of this agreement
substantially in the form set out in schedule 8.
8. SELECTION OF INTEREST PERIODS
8.1 TERM FACILITY
(a) Subject to clause 3.4(a)(iii) (Syndication) and the other provisions
of this agreement, each Interest Period for the Term Advance shall
be one, two, three or six months as notified by the relevant
Borrower to the Facility Agent no later than 10:00 am three Business
Days before the start of that Interest Period (or any other period
which the Facility Agent (acting on the instructions of all the
Lenders) may agree).
(b) The first Interest Period for the Term Advance will start on its
Drawdown Date and each subsequent Interest Period for the Term
Advance will start on the last day of the immediately preceding
Interest Period for the Term Advance.
(c) Each relevant Borrower will select Interest Periods for the Term
Advance so that each Repayment Date for the Term Facility will fall
on the last day of an Interest Period and, for this purpose, that
Borrower may split the Term Advance into two separate Term Advances
one of which shall (if applicable) be in an amount at least equal to
the amount of the instalment due on the next following Repayment
Date relating to the Term Advance and will have an Interest Period
expiring on that Repayment Date.
(d) If a Borrower fails to select an Interest Period then, save as
provided in this clause 8, it will be deemed to have selected a
period of three months or any shorter period which is necessary to
comply with the requirements of clause 8.1(c).
(e) The first Interest Period for the Term Advance starting on the first
Drawdown Date and any subsequent Interest Periods starting during
the 15 day period following the first Drawdown Date shall be (unless
otherwise agreed by the Parent and the Facility Agent) any number of
days (less than a whole week) or any number of whole weeks (less
than four) as selected by the Parent not later than 10 a.m. on the
first day of any such Interest Period (if less than a
29
whole week) or 10 a.m. three Business Days before the first day of
any such Interest Period (if not less than a whole week), provided
that the last Interest Period starting during such 15 day period
shall be selected so as to end on 31 July 2003. By exception to the
provision of clause 7.1 (Rate) and unless otherwise agreed by the
Parent and the Facility Agent, the rate of interest on the Term
Advance for any Interest Period that is less than a whole week will
be the aggregate of (i) the Margin for that Advance, (ii) EONIA on a
day-to-day basis during that Interest Period and (iii) any
applicable Mandatory Costs.
8.2 REVOLVING FACILITY
(a) Subject to clause 3.4(a)(iii) (Syndication) and the other provisions
of this agreement, the Interest Period for each Revolving Advance
shall be one, two, three or six months, as selected by the relevant
Borrower in the relevant Drawdown Request (or any other period which
Facility Agent (acting on the instructions of all the Lenders) may
agree).
(b) During the 15 day period following the first Drawdown Date, the
Interest Period for each Revolving Advance drawn down during that
period shall be (unless otherwise agreed by the Parent and the
Facility Agent), as selected by the relevant Borrower in the
relevant Drawdown Request, any number of days (less than a whole
week) or any number of all weeks (less than four). During such
15-day period, the Drawdown Request in respect of any Revolving
Advance drawn for a period of less than one whole week may be
delivered to the Facility Agent on the date of that Revolving
Advance (but not later than 10:00 am on that date). Each Borrower
shall select Interest Periods of Revolving Advances so that 31 July
2003 will be the Maturity Date of each Revolving Advance outstanding
immediately prior to that date. Any Revolving Advance made prior to
31 July 2003 shall be denominated in Euro. By exception to the
provisions of clause 7.1 (Rate) and unless otherwise agreed by the
Parent and the Facility Agent, the rate of interest on any Revolving
Advance in Euro for an Interest Period of less than a week will be
the aggregate of (i) the Margin for that Advance, (ii) EONIA on a
day-to-day basis during that Interest Period and (iii) any
applicable Mandatory Cost.
8.3 NON-BUSINESS DAYS
If any Interest Period would, but for this clause 8.3, end on a day which
is not a Business Day, that Interest Period shall be extended to (and the
Maturity Date in the case of a Revolving Advance shall be) the immediately
following Business Day, unless the result of that extension would be to
carry that Interest Period into another calendar month, in which case that
Interest Period shall end on (and that Maturity Date shall be) the
immediately preceding Business Day.
9. MARKET DISRUPTION
9.1 MARKET DISRUPTION NOTICE
If, in relation to any Advance (an "Affected Advance"):
(a) the Facility Agent determines that, by reason of circumstances
affecting the applicable interbank market generally, adequate and
fair means do not or will not exist for ascertaining EURIBOR or
LIBOR (as the case may be) applicable to that Affected Advance for
an Interest Period; or
(b) Lenders whose participations in that Affected Advance exceed 50 per
cent. of the amount of that Affected Advance notify the Facility
Agent that EURIBOR or LIBOR (as the case may be) would not
accurately reflect the cost to those Lenders of making or
maintaining their
30
participations in that Affected Advance for an Interest Period, the
Facility Agent will give notice of that event to the Parent and the
Lenders (a "MARKET DISRUPTION NOTICE").
9.2 SUBSTITUTE BASIS
During the 30 days following the giving of a Market Disruption Notice, the
Affected Advance will be made and the Facility Agent and the Parent will
negotiate in good faith in order to agree on a mutually acceptable
substitute basis for calculating the interest payable on the relevant
Affected Advance. If a substitute basis is agreed within that period, then
it shall apply in accordance with its terms (and may be retrospective to
the beginning of the relevant Interest Period). The Facility Agent will
not agree a substitute basis under this clause 9.2 without first obtaining
the approval of the Lenders.
9.3 COST OF FUNDS
Unless and until a substitute basis is agreed under clause 9.2 (Substitute
basis), the interest payable on each Lender's participation in the
relevant Affected Advance for the relevant Interest Period will be the
rate certified by that Lender to be its cost of funds (from any source
which it may reasonably select) plus the applicable Margin.
9.4 UNAVAILABILITY OF EURO
If, in relation to any proposed Drawing by way of an Advance, Lenders
whose participations in that Advance exceed 50 per cent. of the amount of
that Advance notify the Facility Agent that deposits in Euro will not be
readily available to them in the European interbank market in order to
enable them to fund their participations in that Advance, the Lenders will
not be obliged to participate in the proposed Drawing and any Drawdown
Request which has been served by the relevant Borrower will be deemed
withdrawn.
10. REPAYMENT OF DRAWINGS
10.1 TERM ADVANCE
(a) The Parent shall repay the Term Advance in instalments. Each such
instalment will fall due for repayment on each date specified in
column (1) below and shall be in the amount specified opposite that
date in column (2) below. Any balance of the aggregate outstanding
principal amount of the Term Advance remaining outstanding on the
Term Final Repayment Date shall be repaid in full on that date:
(1) (2)
DATE AMOUNT (EUR)
- ------------------- ------------
30 September, 2003 9,000,000
31 March, 2004 9,000,000
30 September, 2004 9,000,000
31 March, 2005 9,000,000
30 September, 2005 9,000,000
31 March, 2006 9,000,000
30 September, 2006 9,000,000
31 March, 2007 9,000,000
30 September, 2007 9,000,000
31 March, 2008 39,000,000
30 June, 2008 100,000,000
(b) No amount repaid or prepaid in relation to the Term Advance may be
redrawn.
31
10.2 REVOLVING ADVANCES REPAYMENT
(a) Each Borrower of any Revolving Advance shall repay that Revolving
Advance on its Maturity Date.
(b) On the Maturity Date of the first Revolving Advance made on the
first Drawdown Date pursuant to clause 2.2(b) (Purpose), as the case
may be, the Parent shall repay that Revolving Advance out of the
cash of the Parent (and not out of the proceeds of a Rollover
Advance).
(c) Any amount repaid under the Revolving Facility may be redrawn in
accordance with clause 5 (Drawdown procedures).
(d) On the Revolving Facility Repayment Date:
(i) the Revolving Facility will expire and the Revolving
Commitment of each Lender will be reduced to zero; and
(ii) each Borrower will repay or prepay all amounts outstanding and
owed by it in relation to the Revolving Facility (together
with all its Contingent Liabilities).
(e) The Parent shall procure that:
(i) for a period of at least 15 consecutive Business Days during
the 18-month period following the first Drawdown Date, the
total amount of all Revolving Advances shall be reduced to EUR
10,000,000 (or its equivalent in other currencies); and
(ii) for a period of at least 10 consecutive Business Days during
each consecutive 12-month period following the end of the
18-month period referred to in sub-paragraph (i) above, the
total amount of all Revolving Advances shall be reduced to
zero;
11. PREPAYMENT AND CANCELLATION
11.1 VOLUNTARY PREPAYMENT
A Borrower may prepay all or any part of the Term Advance at any time
without premium or penalty, provided that:
(a) the Facility Agent has received no less than five Business Days'
irrevocable notice from the Parent of the proposed date and amount
of the prepayment;
(b) any partial prepayment is in a minimum amount of EUR 5,000,000 and,
if greater an integral multiple of EUR 1,000,000; and
(c) if paid other than on the last day of the Interest Period for the
Term Advance, the relevant Borrower indemnifies the Lenders under
clause 28.1 (General indemnity and breakage costs).
11.2 ADDITIONAL RIGHT OF PREPAYMENT
If:
(a) interest on a Lender's participation in an Advance is being
calculated in accordance with clause 9.3 (Cost of funds);
32
(b) a Borrower is required to pay any additional amount to a Lender
under clause 13.1 (Gross up); or
(c) the Parent is required to pay any amount to a Lender under clause
14.1 (Increased costs),
then, without prejudice to the obligations of any Obligor under those
clauses, the Parent may, whilst the circumstances continue, serve a notice
of prepayment and cancellation on that Lender through the Facility Agent.
If the Parent serves any such notice:
(a) on the date which is ten Business Days after the date of service of
the notice, each Borrower shall:
(i) prepay that Lender's participation in all Advances drawn by it
together which accrued interest on those Advances and all
other amounts payable to that Lender under the Senior Finance
Documents; and
(ii) provide cash cover in accordance with clause 1.4 (Cash cover)
in an amount equal to the total Contingent Liability (if any)
of that Lender in relation to Bank Guarantees; and
(b) all that Lender's Commitments shall be cancelled and reduced to zero
as at the date of service of the notice.
11.3 SALE, CHANGE OF CONTROL AND LISTING
(a) If a Change of Control, Listing (other than a Permitted Listing) or
Sale occurs:
(i) all of the Lenders' Commitments will immediately be cancelled
and reduced to zero; and
(ii) each Borrower will immediately prepay all Advances drawn by
it, all Bank Guarantees issued for its account and all sums
advanced to it.
(b) For the purposes of this agreement:
(i) a "CHANGE OF CONTROL" will occur if:
(A) the Permitted Controlling Investors cease to hold more
than 50 per cent. of the equity share capital of the
Parent or equity share capital having the right to cast
more than 50 per cent. of the votes capable of being
cast in general meetings of the Parent; or
(B) the Permitted Controlling Investors cease after the date
of this agreement to have the right to determine the
composition of a majority of the board of directors (or
like body) of the Parent; or
(C) the Permitted Controlling Investors cease after the date
of this agreement to have "control" (as defined in
article L. 233-3 of the French Commercial Code) of the
Parent;
(D) UGI and Medit together cease at any time prior to the
third anniversary of the date of completion of the
Acquisition to hold at least 20 per cent. of the equity
share capital of the Parent or equity share capital
having the right to cast at
33
least 20 per cent. of the votes capable of being cast in
general meetings of the Parent; or
(E) a Change of Control as defined in the High Yield
Documents occurs under the High Yield Documents;
it being specified that if a Change of Control is
triggered by UGI ceasing to be a Permitted Controlling
Investor as a result of any of the provisions of
paragraph (B)(1) or (3) of the definition of "Permitted
Controlling Investors" below, the date of such Change of
Control shall be the date UGI ceases to be a Permitted
Controlling Investor;
(ii) "LISTING" means a listing of all or any part of the share
capital of any Group Company on any investment exchange or
any other sale or issue by way of flotation or public
offering or any equivalent circumstances in relation to any
Group Company in any jurisdiction or country;
(iii) "PERMITTED CONTROLLING INVESTORS" means:
(A) P.A.I. (directly or indirectly through a wholly-owned
Subsidiary of P.A.I.); or
(B) UGI, provided that:
(1) (x) if and when UGI becomes a Controlling Investor,
UGI's rating from Standard & Poor's Ratings Group
(a division of The McGraw Hill Companies, Inc.)
("S&P") is at least BBB, provided that UGI shall
cease to be a Permitted Controlling Investor if,
at the time UGI's rating from, and as reviewed by,
S&P takes into account and reflects, for the first
time (and for the first time only) UGI becoming a
Controlling Investor, such rating (including the
Group) is lower than BBB and provided further that
such rating taking into account for the first time
UGI becoming a Controlling Investor shall be
obtained within a 6 month period following the
date it so becomes a Controlling Investor (the
"UGI GRACE PERIOD") failing which UGI shall cease
to be a Permitted Controlling Investor at the end
of the UGI Grace Period; or
(y) if on the date UGI becomes a Controlling Investor
UGI has no rating from S&P, UGI shall nevertheless
be a Permitted Controlling Investor provided that
(I) it shall achieve a rating (taking into account
UGI becoming a Controlling Investor and including
the Group) of at least BBB from S&P within the UGI
Rating Grace Period or (II) alternatively if UGI
cannot obtain any rating from S&P, UGI Corporation
(or any of its Subsidiaries of whom UGI is a
Subsidiary) shall achieve a rating (taking into
account UGI becoming a Controlling Investor and
including the Group) of at least BBB from S&P
within the UGI Rating Grace Period (and UGI shall
cease to be a Permitted Controlling Investor if it
(or UGI Corporation in the case of (II)) has not
achieved such rating of at least BBB at the end of
the UGI Rating Grace Period, including in the
event that neither UGI nor
34
UGI Corporation (or any of its Subsidiaries of
whom UGI is a Subsidiary) can obtain any rating
from S&P within the UGI Rating Grace Period);
and further provided that during the UGI Rating Grace
Period no Restricted Payment (as defined in clause
19.9(c)(ii) (Restriction on payment of dividends)) shall
be made by the Parent;
(2) if and when UGI becomes a Controlling Investor, the
ratio of Total Net Debt to EBITDA, tested by reference
to the Testing Period ending on the Testing Date falling
on or immediately preceding the date on which UGI
becomes a Controlling Investor, is no greater than (x)
3.50:1 if such date is on or before 30 September 2004,
(y) 3.25:1 if such date is after 30 September 2004 but
on or before 30 September 2006 or (z) 3.00:1 if such
date is after 30 September 2006; and
(3) UGI shall only be a Permitted Controlling Investor to
the extent that it is a Subsidiary of UGI Corporation or
is UGI Corporation (and UGI shall cease to be a
Permitted Controlling Investor if ceases to be a
Subsidiary of UGI Corporation or is not UGI
Corporation).
(iv) "SALE" means a disposal (whether in a single transaction or a
series of related transactions) of all or substantially all of
the assets of the Group;
(v) "PERMITTED LISTING" means a Listing which does not result in a
Change of Control.
11.4 ASSET DISPOSALS
(a) Subject to clauses 11.4(b) and 11.7 (Restrictions on upstreaming
moneys), the Parent shall procure that the Net Proceeds of any
disposal of any fixed asset exceeding EUR 80,000 (or its equivalent
in other currencies) by a Group Company (other than a disposal
permitted by clauses 19.3(a)(i), (ii), (iv), (v), (vi), (viii) or
(ix) (Disposals) and other than to the extent that such Net
Proceeds, when aggregated with the Net Proceeds of all other such
sales made since the Signing Date, do not exceed EUR 17,500,000 (or
its equivalent in other currencies)) are applied in prepayment of
the Facilities.
(b) Net Proceeds need not be so applied if within 360 days after receipt
they are reinvested in fixed assets related to the Core Business.
(c) All such Net Proceeds which are not applied for the purposes
specified in clause 11.4(a) will be applied in prepaying the
Facilities on the last day of the Interest Period for the relevant
Advances following the expiry of the 360 day period referred to in
clause 11.4(b).
11.5 INSURANCE CLAIMS
(a) Subject to clauses 11.5(b), 11.5(c) and 11.7 (Restrictions on
upstreaming moneys), if a Group Company receives any proceeds
exceeding EUR 775,000 (or its equivalent in other currencies) as a
result of making a claim under an insurance policy (other than in
relation to third party liability or in relation to consequential
loss policies that are actually applied to cover operating losses),
the Parent shall procure that an amount equal to those proceeds (net
of any applicable Tax) is applied in prepayment of the Facilities;
35
(b) Any amount received or recovered as a result of making a claim under
an insurance policy need not be so applied if within 360 days after
receipt it is applied in reinstating, replacing, repairing or
otherwise investing in assets related to the Core Business;
(c) All such proceeds which are not applied for the purposes specified
in clause 11.5(b) will be applied in prepaying the Facilities
following the expiry of the 360 day period referred to in clause
11.5(b) or, if later, the last day of the Interest Period for the
relevant Advances immediately following such date.
11.6 ORDER OF APPLICATION OF PREPAYMENTS
(a) Any amount to be applied in prepayment of the Facilities under
clauses 11.1 (Voluntary prepayment), 11.4 (Asset disposals) and 11.5
(Insurance claims) shall be applied:
(i) to prepay the Term Facility (x) in the order determined at the
discretion of the Parent in respect of any prepayment of the
Facilities under clause 11.1 (Voluntary Prepayment) or (y) in
the order set forth in paragraphs (d) and (e) below in respect
of any prepayment of the Facilities under clauses 11.4 (Asset
disposals) and 11.5 (Insurance claims);
(ii) provided that all amounts under the Term Facility have been
repaid first, in permanent prepayment of Revolving Advances,
in such order as the Parent may select by no less than three
Business Days' prior written notice to the Facility Agent and
thereafter in providing cash cover in respect of any
Contingent Liability under any Bank Guarantee issued under the
Revolving Facility.
(b) If any amount is applied in accordance with clause 11.6(a)(ii), the
Revolving Commitments shall immediately be cancelled by the amount
equal to each amount prepaid or provided as cash cover in relation
to the Revolving Facility. Any such cancellation shall apply to the
Revolving Commitment of each Revolving Lender on a pro rata basis.
(c) Subject to the other provisions of this agreement, the Parent shall,
by notice to the Facility Agent to be received at least three
Business Days before the date of the relevant prepayment, designate
which Drawings are to be prepaid on that date.
(d) Any amount to be applied in prepayment under clause 11.6(a)(i)(y)
against the Term Advance shall be applied in the following order:
(i) first, up to 100 per cent. of the first scheduled instalment
of Term Advance set out in clause 10.1(a) (Term Advance) which
falls due for payment immediately following the date of that
prepayment; and
(ii) second, as to the balance (if any) of any such prepayment, up
to 100 per cent. of the second scheduled instalment of Term
Advance set out in clause 10.1(a) (Term Advance) which falls
due for payment immediately following the date of that
prepayment.
Any remaining amount to be applied in prepayment under clause
11.6(a)(i)(y) against the Term Advance shall be applied against the
remaining scheduled instalments set out in clause 10.1(a) (Term
Advance) on a pro rata basis.
11.7 RESTRICTIONS ON UPSTREAMING MONEYS
36
(a) Any amount to be applied in prepayment of the Facilities under 11.4
(Asset disposals) and 11.5 (Insurance claims) shall (except where
the relevant amount has been received directly by the Parent) be
limited to the aggregate of:
(i) the sum of (1) distributable profits of the Subsidiaries of
the Parent net of taxes for the latest financial year (taking
into account the relevant company's shareholding in its
Subsidiaries) and (2) cash reserves distributable without
incurring equalisation tax (en franchise de precompte) of the
relevant Subsidiaries (taking into account the percentage of
the Parent's shareholding in the relevant Subsidiaries); and
(ii) cash held by the Parent.
(b) Subject to clause 11.7(a), the Parent shall (within boundaries of
French law and to the extent that it does not thereby incur any
material adverse tax consequences) use its best endeavours to
facilitate cash circulation (including early repayments of
intercompany loans between Group Companies with the exception of the
intercompany loan referred to in subparagraph (ix) of clause 19.3(a)
(Disposals)) so as to permit partial prepayments of the Facilities
under clauses 11.4 (Asset disposals) and 11.5 (Insurance claims) to
take place. The difference between the amount to be applied in
prepayment of the Facilities under clause 11.4 (Asset disposals)
and/or 11.5 (Insurance claims) and the amount which can legally be
prepaid under the limitations described at clause 11.7(a)(i) and
(ii) shall either be deposited by the relevant Group Company on a
dedicated interest bearing bank account until the payment can be
made upstream to the Parent (subject to a maximum period of six
months) or, if the relevant Group Company is a Borrower under the
Revolving Facility and if it so elects, shall be applied towards
prepayment (but not cancellation) of the amounts due by it under the
Revolving Facility.
(c) If:
(i) any amount is required to be applied in prepayment or
repayment of the Facilities under this clause 11 but, in order
to be so applied, moneys need to be upstreamed or otherwise
transferred from one Group Company to another Group Company to
effect that prepayment or repayment; and
(ii) those moneys cannot be so upstreamed or transferred without:
(A) breaching a financial assistance prohibition or other
legal restriction applicable to a Group Company (or any
of its directors); or
(B) any Group Company incurring a material cost (whether as
a result of paying additional Taxes (including, in the
case of a Group Company incorporated in France, any
special dividend withholding tax (precompte) or
otherwise),
there will be no obligation to make that payment or repayment until
that impediment no longer applies.
11.8 CANCELLATION OF TERM FACILITY
The Parent may cancel the undrawn amount of the Term Commitments relating
to the Term Facility in whole or in part (but, if in part, in a minimum
amount of EUR 5,000,000 and an integral multiple of EUR 1,000,000) at any
time during the Availability Period for the Term Facility by giving no
less than three Business Days' irrevocable notice to the Facility Agent
specifying the date and amount of the proposed cancellation and, on any
cancellation of any Term Commitments, the amount of the
37
corresponding Term Facility will reduce accordingly. Any such cancellation
shall reduce each Lender's Commitment in respect of the Term Facility on a
pro rata basis.
11.9 CANCELLATION OF REVOLVING FACILITY
(a) Provided that the Revolving Facility shall not be cancelled by
application of proceeds which would otherwise give rise to mandatory
prepayment of the Term Advance under any of clauses 11.3 (Sale,
Change of Control and Listing), 11.4 (Asset disposals) or 11.5
(Insurance claims), the Parent may cancel the Revolving Commitments
in whole or in part (but, if in part, in a minimum of EUR 5,000,000
and an integral multiple of EUR 1,000,000) at any time during the
Availability Period for the Revolving Facility by giving no less
than five Business Days' irrevocable notice to the Facility Agent
specifying the date and amount of the proposed cancellation and, on
any cancellation of the Revolving Commitments, the amount of the
Revolving Facility will reduce accordingly. Any such cancellation
shall reduce each Lender's Revolving Commitment on a pro rata basis.
(b) No cancellation of the Revolving Facility may be made if it would
result in the aggregate of the Revolving Advances and the Contingent
Liability of all the Lenders under Bank Guarantees issued under the
Revolving Facility at the time of the proposed cancellation
exceeding the total Revolving Commitments at such time.
11.10 MISCELLANEOUS
(a) Any repayment or prepayment under this agreement must be accompanied
by accrued interest on the amount repaid or prepaid and any other
amount then due under this agreement.
(b) No amount prepaid or cancelled under this clause 11 may be redrawn
or reinstated.
(c) Any notice of prepayment or cancellation given under this agreement
shall be irrevocable and, in the case of notice of prepayment, the
Parent or the Borrower named in that notice shall be obliged to
prepay (or, in the case of the Parent, to procure prepayment) in
accordance with that notice.
(d) No prepayment of a Drawing or cancellation of any Commitment may be
made except in accordance with this agreement.
12. PAYMENTS
12.1 BY LENDERS
(a) On each date on which an Advance is to be made, each Lender shall
make its participation in that Advance available to the Facility
Agent on that date by payment in the currency in which the Advance
is denominated and in immediately available cleared funds to the
account specified by the Facility Agent for that purpose.
(b) The Facility Agent shall make the amounts paid to it available to
the relevant Borrower on the date of receipt by payment in the same
currency as received by the Facility Agent to the account specified
by that Borrower in the notice requesting that Advance. If any
Lender makes its share of any Advance available to the Facility
Agent later than required by clause 12.1(a), the Facility Agent
shall make that share available to the relevant Borrower as soon as
practicable after receipt.
12.2 BY OBLIGORS
38
(a) On each date on which any amount is due from any Obligor under the
Senior Finance Documents, that Obligor shall pay that amount on that
date to the Facility Agent in immediately available cleared funds to
the account specified by the Facility Agent for that purpose.
(b) Each payment under this agreement from an Obligor is to be made in
Euro, except that:
(i) each repayment or prepayment of an Advance shall be in the
currency in which it was drawn;
(ii) each payment of interest shall be in same currency as the
amount in relation to which that interest is payable;
(iii) each payment in respect of losses shall be made in the
currency in which the losses were incurred;
(iv) each payment under clause 13.1 (Gross up) or clause 14.1
(Increased costs) shall be made in the currency specified by
the claiming Finance Party; and
(v) any amount expressed to be payable in a currency other than
Euro shall be paid in that other currency.
(c) The Facility Agent shall, on the date of receipt, pay to the Finance
Party to which the relevant amount is due its pro rata share (if
any) of any amounts so paid to the Facility Agent in the same
currency as received by the Facility Agent to the account specified
by that party to the Facility Agent. If any amount is paid to the
Facility Agent later than required by clause 12.2(a), the Facility
Agent shall make that party's share available to it as soon as
practicable receipt.
12.3 NETTING OF PAYMENTS
If on any Drawdown Date:
(a) the Revolving Lenders are required to make a Revolving Advance; and
(b) a payment is due to be made by an Obligor to the Facility Agent for
the account of the Revolving Lenders,
the Facility Agent may, without prejudice to the obligation of the
relevant Obligor to make that payment apply any amount payable by the
Revolving Lenders to that Obligor on that Drawdown Date in relation to the
relevant Revolving Advance in or towards satisfaction of the amounts
payable by that Obligor to the Revolving Lenders on that Drawdown Date.
12.4 ASSUMED RECEIPT
Where an amount is to be paid under any Senior Finance Document for the
account of another person, the Facility Agent will not be obliged to pay
that amount to that person until it is satisfied that it has actually
received that amount. If the Facility Agent nonetheless pays that amount
to that person and the Facility Agent had not in fact received that
amount, then that person will on request refund that amount to the
Facility Agent. That person will be liable:
(a) to pay to the Facility Agent on demand interest on that amount at
the rate determined by the Facility Agent to be equal to the cost to
the Facility Agent of funding that amount for the
39
period from payment by the Facility Agent until refund to the
Facility Agent of that amount; and
(b) to indemnify the Facility Agent on demand against any additional
loss it may have incurred by reason of it having paid that amount
before having received it.
12.5 NO SET-OFF OR DEDUCTIONS
All payments made by an Obligor under the Senior Finance Documents must be
paid in full without set-off or counterclaim and not subject to any
condition and free and clear of and without any deduction or withholding
for or on account of any Taxes (except as provided in clause 13 (Taxes)).
12.6 BUSINESS DAYS
Subject to clause 8.3 (Non-Business Days), if any amount would otherwise
become due for payment under any Senior Finance Document on a day which is
not a Business Day, that amount shall become due on the immediately
following Business Day and all amounts payable under any Senior Finance
Document calculated by reference to any period of time shall be
recalculated on the basis of that extension of time.
12.7 APPLICATION OF MONEYS
If any amount paid or recovered in relation to the liabilities of an
Obligor under any Senior Finance Document is less than the amount then
due, the Facility Agent shall apply that amount against amounts
outstanding under the Senior Finance Documents in the following order:
(a) first, to any unpaid fees and reimbursement of unpaid expenses of
the Agents;
(b) second, to any unpaid fees and reimbursement of unpaid expenses of
the Lenders;
(c) third, to unpaid interest;
(d) fourth, to unpaid principal (including provision of cash cover in
relation to Contingent Liabilities); and
(e) fifth, to other amounts due under the Senior Finance Documents
(other than the Hedging Agreements),
in each case (other than (a)), pro rata to the outstanding amounts owing
to the relevant Finance Parties (other than the Hedging Lenders) under the
Senior Finance Documents taking into account any applications under this
clause 12.7. Any such application by the Facility Agent will override any
appropriation made by an Obligor.
13. TAXES
13.1 GROSS UP
If any deduction or withholding for or on account of Taxes or any other
deduction imposed by its jurisdiction of incorporation from any payment
made or to be made by an Obligor to any Finance Party or by the Facility
Agent to any other Finance Party under any Senior Finance Document is
required by law, then that Obligor will:
(a) ensure that the deduction or withholding does not exceed the minimum
amount legally required;
40
(b) pay to the relevant Taxation or other authorities within the period
for payment permitted by the applicable law, the amount which is
required to be paid in consequence of the deduction (including the
full amount of any deduction from any additional amount paid under
this clause 13.1);
(c) promptly pay to the relevant Finance Party an additional amount
equal to the amount required to procure that the aggregate net
amount received by that Finance Party will equal the full amount
which would have been received by it if no such deduction or
withholding had been made; and
(d) indemnify each Finance Party against any losses incurred by it by
reason of:
(i) any failure by the relevant Obligor to make any deduction or
withholding; or
(ii) any such additional amount not being paid on the due date for
payment of that amount.
13.2 EXEMPTIONS FROM GROSS-UP
No additional amount will be payable to a Finance Party under clause 13.1
(Gross up) to the extent that the relevant deduction or withholding would
not have arisen if that Finance Party had been a Qualifying Lender at the
time the relevant payment fell due (unless the reason it is not a
Qualifying Lender is the introduction of, or a change in, any law or
regulation, or a change in the interpretation or application of any law or
regulation or in any practice or concession of the relevant tax authority,
in each case occurring after the date of this agreement or after the date
on which such Finance Party became a party to this Agreement).
13.3 INDEMNITY
Without prejudice to clause 13.1 (Gross up), if, as a result of a tax
change occurring after the date of this agreement on or after the date on
which such Finance Party became a party to this Agreement, any Finance
Party (or any person on its behalf) is required to make any payment in
relation to Tax (other than Tax on its overall net income) on or
calculated by reference to the amount of any payment received or
receivable by that Finance Party (or any person on its behalf) under any
Senior Finance Document (including under clause 13.1 (Gross up)) or any
liability in relation to any such payment is assessed, levied, imposed or
claimed against any Finance Party (or any person on its behalf), the
Parent shall, on demand by the Facility Agent, forthwith indemnify that
Finance Party (or relevant other person) against that payment or liability
and any losses incurred in connection with that payment or liability.
13.4 FILINGS
If an Obligor is required (or would in the absence of any appropriate
filing be required) to make a deduction or withholding for or on account
of Taxes or any other deduction contemplated by this clause 13, that
Obligor and each relevant Finance Party shall promptly file all forms and
documents which the appropriate Tax authority may reasonably require in
order to enable that Obligor to make relevant payments under the Senior
Finance Documents without having to make that deduction or withholding.
Each Finance Party which is a Qualifying Lender by reason of paragraph (b)
of the definition of "Qualifying Lender" in clause 1.1 (Definitions)
shall, as soon as reasonably practicable after request from the Parent,
file with any relevant Tax authority, or provide to the Parent, any Tax
form, declaration or other document which the Parent has reasonably
requested from that Finance Party for
41
the purpose of enabling payments to be made by the relevant Obligor to
that Finance Party under the Senior Finance Documents without deduction or
withholding.
13.5 TAX CREDITS
If an Obligor pays an additional amount under clause 13.1 (Gross up) and a
Lender, in its sole opinion acting in good faith, receives an off-setting
Tax credit or other similar Tax benefit arising out of that payment, that
Lender shall reimburse to the relevant Obligor the amount which that
Lender determines, in its sole opinion acting in good faith, is
attributable to the relevant deduction, withholding or payment and will
leave it in no better or worse position in relation to its worldwide Tax
liabilities than it would have been in if the payment of that additional
amount had not been required, to the extent that that Lender, in its sole
opinion acting in good faith, can do so without prejudice to the retention
of the amount of that credit or benefit and without any other adverse Tax
consequences for it. Any such reimbursement shall be conclusive evidence
of the amount due to that Obligor and shall be accepted by that Obligor in
full and final settlement of any claim for reimbursement under this clause
13.5.
13.6 TAX CREDIT RECOVERY
If, following any reimbursement by a Lender under clause 13.5 (Tax
credits), that Lender is required to relinquish or surrender any credit or
benefit or suffers an adverse Tax consequence as a result of that
reimbursement and that relinquishment, surrender or that adverse Tax
consequence was not (or was not fully) taken into account in determining
that reimbursement, the relevant Obligor shall, on demand, return to that
Lender the proportion of the reimbursement which will compensate the
Lender for that relinquishment, surrender or adverse Tax consequence.
13.7 TAX AFFAIRS
Nothing in this clause 13 shall oblige any Lender to disclose any
information to any person regarding its Tax affairs or Tax computations or
interfere with the right of any Lender to arrange its Tax affairs in
whatever manner it thinks fit.
14. CHANGE IN CIRCUMSTANCES
14.1 INCREASED COSTS
(a) If the effect of the introduction of, or a change in, or a change in
the interpretation or application of, any law or regulation
(including any law or regulation relating to Taxation, reserve
asset, special deposit, cash ratio, liquidity or capital adequacy
requirements or any other form of banking or monetary controls)
applicable to any Lender (an "AFFECTED LENDER") occurring after the
date of this agreement or after the date on which it became a Lender
or compliance by any Lender with any such law or regulation is to:
(i) impose an additional cost on the Affected Lender as a result
of it having entered into any Senior Finance Document or
making or maintaining its participation in any Advance or of
it performing its obligations under any Senior Finance
Document;
(ii) reduce any amount payable to the Affected Lender under any
Senior Finance Document or reduce the effective return on its
capital or any class of its capital; or
(iii) result in the Affected Lender making any payment or foregoing
any interest or other return on or calculated by reference to
any amount received or receivable by the Affected Lender from
any other party under any Senior Finance Document,
42
(each such increased cost, reduction, payment, foregone interest or
other return being referred to in this clause 14.1 as an "INCREASED
COST"), then:
(A) the Affected Lender will notify the Parent and the
Facility Agent of that event as soon as reasonably
practicable after becoming aware of it; and
(B) on demand from time to time by the Affected Lender, the
Parent will pay to the Affected Lender the amount which
the Affected Lender reasonably determines is necessary
to compensate the Affected Lender for that increased
cost (or the portion of that increased cost which is, in
the opinion of the Affected Lender, attributable to it
entering into the Senior Finance Documents, making or
maintaining its participation in any Drawing, or
maintaining its Commitment).
(b) The certificate of an Affected Lender specifying the amount of
compensation payable under clause 16.1(a) and the basis for the
calculation of that amount is, in the absence of manifest error,
conclusive.
(c) The Parent will not be obliged to compensate any Affected Lender
under clause 16.1(a) in relation to any increased cost:
(i) compensated for by clause 13 (Taxes);
(ii) attributable to a change in the rate of Tax on the overall net
income of the Affected Lender;
(iii) attributable to the implementation by the applicable
authorities having jurisdiction over the Affected Lender
and/or its Lending Office of the matters set out in the
statement of the Basle Committee on Banking Regulations and
the Supervisory Practices dated July, 1988 and entitled
"International Convergence of Capital Measurement and Capital
Standards", or the directives of the European Council (as
amended or supplemented prior to the date of this Agreement)
of 17 April, 1989 on the own funds of credit institutions
(89/229/EEC) and of 18 December, 1989 on the solvency ratio
for credit institutions (89/647/EEC), except in the case of an
increase in mandatory reserve requirements in respect of
requirements in effect on the date of this agreement in each
case to the extent and according to the timetable provided for
therein;
(iv) occurring as a result of any negligence or wilful default of
the Affected Lender or any of its Holding Companies including
but not limited to a breach by that Affected Lender or any of
its Holding Companies of any fiscal, monetary or capital
adequacy limit imposed on it by any law or regulation; or
(v) to the extent that the increased cost was incurred in respect
of any day more than six months after the first date on which
it was reasonably practicable to notify the Parent thereof.
(d) If any Holding Company of a Lender suffers a cost which would have
been recoverable by that Lender under this clause 14.1 if that cost
had been imposed on that Lender, that Lender shall be entitled to
recover the amount of that cost under this clause 14.1 on behalf of
the relevant Holding Company.
43
14.2 ILLEGALITY
If it is or becomes contrary to any law or regulation for any Lender to
make any of the Facilities available or to maintain its participation in
any Advance or any of its Commitments, then that Lender may give notice to
that effect to the Facility Agent and the Parent, whereupon:
(a) the relevant Borrowers will forthwith prepay that Lender's
participation in all Advances then outstanding, together with all
interest accrued on those Advances, provide cash cover in an amount
equal to that Lender's Contingent Liability in relation to each Bank
Guarantee and pay all other amounts due to that Lender under the
Senior Finance Documents (including under clause 28.1 (General
indemnity and breakage costs)); and
(b) that Lender's undrawn Commitments (if any) will immediately be
cancelled and that Lender will have no further obligation to make
the Facilities available.
14.3 MITIGATION
If circumstances arise in relation to a Lender which would or may result
in:
(a) any Advance in which it participates becoming an Affected Advance
under clause 9 (Market disruption); or
(b) an obligation to pay an additional amount to it under clause 13.1
(Gross up); or
(c) a demand for compensation by it under clause 14.1 (Increased costs);
or
(d) an obligation to prepay any amount to it under clause 14.2
(Illegality),
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Obligors under the clauses referred to above, that
Lender will notify the Facility Agent and the Parent as soon as reasonably
practicable after becoming aware of those circumstances and, in
consultation with the Facility Agent and the Parent, take such reasonable
steps as may be open to it to mitigate the effects of those circumstances,
including:
(a) changing its Lending Office for the purposes of this agreement; or
(b) transferring its rights and obligations under this agreement in
accordance with clause 26 (Changes to parties),
but the Lender concerned will not be obliged to take any action if to do
so might have a material adverse effect on its business, operations or
financial condition or cause it to incur liabilities or obligations
(including Taxation) which (in its reasonable opinion) are material or
would materially reduce its return in relation to its participation in the
Facilities.
14.4 ISSUING LENDER
References in clause 13 (Taxes) and this clause 14 to a "Lender" or
"Lenders" include a Lender in its capacity as an Issuing Lender.
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15. FEES, EXPENSES AND STAMP DUTIES
15.1 ARRANGEMENT AND UNDERWRITING FEE
The Parent will pay to the Arranger the arrangement and underwriting fee
in accordance with the terms of the Fees Letter.
15.2 AGENCY FEE
The Parent will pay to the Facility Agent for its own account an agency
fee in accordance with the terms of the Fees Letter.
15.3 COMMITMENT FEE
The Parent will pay to the Facility Agent for the account of the Lenders a
commitment fee in respect of the Term Facility and the Revolving Facility
which will:
(a) in respect of the Term Facility and the Revolving Facility until the
first Drawdown Date, be calculated at the rate of 0.25 per cent. per
annum on the daily undrawn, uncancelled portion of the Total
Commitments from (and including) the Signing Date until the first
Drawdown Date and which will be paid in one instalment on the first
Drawdown Date or, if earlier, on the last day of the Availability
Period for the Term Facility; and
(b) in respect of the Revolving Facility as from the first Drawdown
Date, be calculated at the percentage rate per annum equal to 50 per
cent. of the Margin applicable to the Revolving Facility on the
daily undrawn, or not otherwise made available, and uncancelled
portion of the Revolving Commitments from (and including) the first
Drawdown Date until one month before the Revolving Facility
Repayment Date and shall be payable quarterly in arrear and on the
Revolving Facility Repayment Date.
Accrued commitment fee under this clause 15.3 is also payable to the
Facility Agent for the account of each Lender on the cancelled amount of
its Revolving Commitment on the date on which any cancellation of that
Revolving Commitment takes effect.
15.4 BANK GUARANTEE COMMISSION
Each Borrower for whose account a Bank Guarantee is issued shall pay to
the Facility Agent for the account of each Lender a commission at a rate
equal to the Margin applicable to the Revolving Facility on that Lender's
Contingent Liability from day to day in relation to that Bank Guarantee.
That commission shall be payable quarterly in arrear from the date of this
agreement for so long as that Lender has any such Contingent Liability and
on the date on which it ceases to have any such Contingent Liability.
15.5 ISSUING LENDER FEE
Each Borrower for whose account a Bank Guarantee is issued shall pay to
the Issuing Lender which issued that Bank Guarantee a fee equal to 0.125
per cent. per annum on the Contingent Liability of that Issuing Lender
from day to day in relation to that Bank Guarantee. That fee shall be
payable quarterly in arrear from the date of this agreement for so long as
that Issuing Lender has any such Contingent Liability and on the date on
which it ceases to have any such Contingent Liability.
15.6 VAT
45
All fees payable under the Senior Finance Documents are exclusive of any
value added tax or other similar tax chargeable on or in connection with
those fees. If any such value added tax or other similar tax is or becomes
chargeable, that tax will be added to the relevant fee at the appropriate
rate and will be paid by the relevant Obligor at the same time as the
relevant fee itself is paid.
15.7 INITIAL EXPENSES
The Parent will on demand pay to the Agents and the Arranger the amount of
all costs and expenses (including legal fees and other out-of-pocket
expenses and any value added tax or other similar tax thereon) reasonably
incurred by either Agent or the Arranger in connection with:
(a) the negotiation, preparation, execution and completion of the Senior
Finance Documents, and all documents, matters and things referred to
in, or incidental to, any Senior Finance Document (subject to a cap
as agreed in the Fees Letter);
(b) any amendment, consent or suspension of rights (or any proposal for
any of the same) relating to any Senior Finance Document (and
documents, matters or things referred to in any Senior Finance
Document);
(c) the investigation of any Default; and
(d) primary syndication (including the costs of preparing the
Syndication Memorandum and all matters incidental to primary
syndication).
15.8 ENFORCEMENT EXPENSES
The Parent will on demand pay to each Finance Party the amount of all
costs and expenses (including legal fees and other out of pocket expenses
and any value added tax or other similar tax thereon) reasonably incurred
by that Finance Party in connection with the preservation, enforcement or
attempted preservation or enforcement of any of that Finance Party's
rights under any Senior Finance Document (and any documents referred to in
any Senior Finance Document) upon production of duly documented evidence.
15.9 STAMP DUTIES, ETC.
The Parent will on demand indemnify each Finance Party from and against
any liability for any stamp, documentary, filing and other duties and
Taxes (if any) which are or may become payable in connection with any
Senior Finance Document.
15.10 CALCULATION
All fees under this agreement which accrue and are payable in arrear will
accrue on a daily basis and will be calculated by reference to a 360 day
year and the actual number of days elapsed.
16. GUARANTEE AND INDEMNITY
16.1 GUARANTEE
Each Guarantor irrevocably and unconditionally and jointly and severally:
(a) guarantees to each Finance Party (as a caution solidaire) punctual
performance by each Obligor which is a Subsidiary of that Guarantor
of all that Obligor's payment obligations under the Senior Finance
Documents; and
46
(b) undertakes with each Finance Party that whenever an Obligor which is
a Subsidiary of that Guarantor does not pay any amount when due
under or in connection with any Senior Finance Document, that
Guarantor shall immediately on demand pay that amount.
16.2 FURTHER GUARANTEE PROVISIONS
The obligations of each Guarantor under clause 16.1 (Guarantee) (the
"GUARANTEE OBLIGATIONS"):
(a) will remain in full force and effect until all amounts which may be
or become payable by any Obligor under or in connection with any
Senior Finance Document have been irrevocably paid in full;
(b) are in addition to and are not in any way prejudiced by any other
security now or subsequently held by any Finance Party; and
(c) are subject to any limitation which is contained in the Accession
Document by which that Guarantor becomes a Guarantor.
16.3 WAIVERS:
Each Guarantor irrevocably and expressly:
(a) undertakes not to exercise any rights which it may have under
article 2021 (benefice de discussion) or article 2026 (benefice de
division) of the Code Civil;
(b) waives any right it may have of first requiring any Finance Party
(or any trustee or agent on its behalf) to proceed against or
enforce any other rights or security or claim payment from any
person before claiming from that Guarantor under this clause 16;
(c) undertakes not to exercise any rights which it may have against any
other Obligor under article 2032 of the Code Civil; and
(d) undertakes not to exercise any rights which it may have under
article 2039 of the Code Civil to take any action against any other
Obligor in the event of any extension of any Availability Period,
any Maturity Date, any Repayment Date or any other date for payment
of any amount due, owing or payable to any Finance Party under any
Senior Finance Document, in each case without the consent of that
Guarantor.
16.4 NO SUBROGATION
(a) Until all amounts which may be or become payable by any Obligor
under or in connection with any Senior Finance Document have been
irrevocably paid in full, each Guarantor irrevocably and expressly
undertakes not to exercise any rights which it may have (including
its rights under article 2028 of the Code Civil):
(i) to be subrogated to or otherwise share in any security or
monies held, received or receivable by any Finance Party or to
claim any right of contribution in relation to any payment
made by any Guarantor under this agreement;
(ii) to enforce any of its rights of subrogation and indemnity
against any Obligor or any co-surety;
47
(iii) following a claim being made on any Guarantor under clause
16.1 (Guarantee), to demand or accept repayment of any monies
due from any other Obligor to any Guarantor or claim any
set-off or counterclaim against any other Obligor; or
(iv) to claim or prove in a liquidation or other insolvency
proceeding of any Obligor or any co-surety in competition with
any Finance Party.
(b) Each Guarantor agrees that, to the extent that the agreement to
withhold the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth in this clause 16.4 is
found by any court of competent jurisdiction to be void or voidable
for any reason, any rights of subrogation, reimbursement or
indemnification which that Guarantor may have against any Obligor or
against any collateral or security, and any rights of contribution
which that Guarantor may have against any such other Guarantor shall
be junior and subordinate to:
(i) any rights any Finance Party may have against any Obligor
(including without limitation that Guarantor);
(ii) all right, title and interest which any Finance Party may have
in any such collateral or security; and
(iii) any right which any Finance Party may have against those
Guarantors any Finance Party may use, sell or dispose of any
item of collateral or security as it sees fit without regard
to any subrogation rights which any Guarantor may have and,
upon such disposal or sale, any rights of subrogation which
that Guarantor may have had shall terminate.
If any amount is paid to any Guarantor on account of any such subrogation,
reimbursement or indemnification rights at any time when all Guarantee
Obligations have not been paid in full, those amounts shall be held for
the benefit of the Finance Parties and shall forthwith be paid over to the
Finance Parties to be credited and applied against the Guarantee
Obligations, whether matured or unmatured, in accordance with the terms of
this agreement.
16.5 TURNOVER
Each Guarantor shall hold for the benefit of and, promptly pay or transfer
to, the Facility Agent any payment, distribution or benefit of security
received by it arising as a result of a breach of this clause 16.
17. CHANGES TO OBLIGORS AND SECURITY
17.1 ADDITIONAL BORROWERS
A Group Company (other than Finco) may become a Borrower after the Signing
Date in respect of the Revolving Facility if:
(a) the Parent gives notice to the Facility Agent identifying the
relevant Group Company (the "NEW BORROWER") attaching certified
copies of such New Borrower's most recent audited accounts;
(b) the Majority Lenders confirm to the Facility Agent that they consent
to the New Borrower becoming a Borrower;
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(c) the New Borrower, the Parent (for itself and as agent for the
existing Obligors) and the Facility Agent execute an Accession
Document designating the New Borrower as a Borrower;
(d) where the immediate Holding Company of the New Borrower is not
already a Guarantor, the Parent and that Holding Company execute an
Accession Document designating that Holding Company as a Guarantor;
(e) the Parent or the New Borrower delivers to the Facility Agent:
(i) the original executed Accession Documents referred to in
paragraphs (c) and (d) above;
(ii) the following documents executed by the New Borrower in favour
of the Finance Parties:
(A) a general assignment of all Receivables by way of
security (cession de creances professionnelles pursuant
to the Loi Dailly); and
(B) a pledge of its business (nantissement de fonds de
commerce);
(iii) a pledge of financial instruments accounts executed by the
immediate Holding Company of the New Borrower over the shares
in the New Borrower;
(iv) the documents listed in paragraph 1 (Formalities certificates)
of schedule 3;
(v) a legal opinion confirming capacity and authorisation; and
(vi) a letter substantially in the form set out in schedule 8
(amended as necessary to reflect Drawings of the Revolving
Facility) duly counter-signed by the New Borrower,
each satisfactory to the Facility Agent (acting reasonably).
17.2 EFFECTIVE TIME
When the conditions set out in clause 17.1 (Additional Borrowers) are
satisfied, the Facility Agent will notify the Parent and the Finance
Parties and the New Borrower will become a Borrower with effect from that
notification.
17.3 RELEASE OF GUARANTORS
If no Default is continuing (or if a Default is continuing the relevant
disposal is being effected at the request of the Majority Lenders in
circumstances where any of the security created by the Security Documents
has become enforceable) and all the shares in a Guarantor which is not a
Borrower are disposed of to a person outside (and which will remain
outside) the Group in accordance with this agreement, the Facility Agent
and the Security Agent shall, on request of the Parent as soon as
reasonably practicable after completion of that disposal, execute any
documents which are necessary to release that Guarantor from all
liabilities under the Senior Finance Documents.
17.4 RELEASE OF SECURITY
If no Default is continuing (or if a Default is continuing the relevant
disposal is being effected at the request of the Majority Lenders in
circumstances where any of the security created by the Security Documents
has become enforceable) and a Group Company disposes of any asset
(including shares in any other Group Company which is not a Borrower) to a
person outside (and which will remain
49
outside) the Group in accordance with this agreement, the Security Agent
shall, on request of the Parent as soon as reasonably practicable after
completion of that disposal, execute any documents necessary to release
that asset from the security created in favour of the Security Agent by a
Security Document.
18. REPRESENTATIONS AND WARRANTIES
18.1 RELIANCE
Each Obligor represents (in respect of itself and its Subsidiaries) and
warrants as set out in the following provisions of this clause 18 (subject
to matters expressly disclosed in the Disclosure Letter) and acknowledges
that each Finance Party has entered into the Senior Finance Documents and
has agreed to provide the Facilities in full reliance on those
representations and warranties.
18.2 INCORPORATION
Each Group Company is duly incorporated (Except for those Group Companies
which are societes en participation ("SEPs")) and validly existing with
limited liability (except for those Group Companies which are Groupements
d'Interets Economiques ("GIES")) under the laws of the place of its
incorporation and, subject to specific rules applicable to SEPs and GIEs,
has the power to own its assets and carry on its business.
18.3 POWER AND CAPACITY
It has the power and capacity to enter into and comply with its
obligations under each Transaction Document to which it is party.
18.4 AUTHORISATION
It has taken (or, where applicable, will take within the required time
period) all necessary action:
(a) to authorise the entry into and the compliance with its obligations
under each Transaction Document to which it is party;
(b) to ensure that its obligations under each Transaction Document are
valid, legally binding and enforceable in accordance with their
terms;
(c) to make each Transaction Document to which it is party admissible in
evidence in the courts of France other than certified translations
of the Transaction Documents into French; and
(d) to create the security constituted by each Security Document to
which it is party and to ensure that that security has the ranking
specified in that Security Document.
18.5 NO CONTRAVENTION
The entry into by any Group Company, the exercise of its rights under and
the compliance with its obligations under and each Transaction Document to
which it is party do not:
(a) contravene any law, regulation, judgment or order to which any Group
Company is subject (save that, for the purposes of Articles L.313-1
to L.313-3 of the French Consumer Code (Code de la Consommation),
the Parent declares that it considers that the provisions of those
Articles do not apply to the High Yield Bonds and the Intra-Group
Bonds);
(b) conflict with its constitutional documents;
50
(c) breach any agreement or the terms of any consent binding upon any
Group Company or any assets of any Group Company to an extent which
could reasonably be expected to have a Material Adverse Effect; or
(d) oblige any Group Company to create any security or result in the
creation of any security over any assets of any Group Company, other
than under the Security Documents.
18.6 OBLIGATIONS BINDING
The obligations expressed to be assumed by it under each Transaction
Document to which it is a party constitute or when executed will
constitute its valid and legally binding obligations and are enforceable
in accordance with their terms and each of the Security Documents to which
it is a party constitute valid security ranking in accordance with its
terms (subject to any applicable insolvency, bankruptcy or similar laws
affecting creditors' rights generally and save for qualifications as to
matters of law contained in the legal opinions referred to in paragraph 2
of schedule 3).
18.7 CONSENTS
All consents and filings required for the conduct of its business as
presently conducted and the entry into the Transaction Documents and the
performance of its obligations thereunder have been obtained (or, where
applicable, will be obtained within the required time period) and are in
full force and effect.
18.8 NO DEFAULTS
(a) No Default has occurred and is continuing.
(b) No event is continuing which constitutes a default under any
agreement or document to which any Group Company is party, the
consequences of which could reasonably be expected to have a
Material Adverse Effect.
18.9 LITIGATION
To the best of its knowledge and belief, having made due and careful
enquiry, no dispute, litigation, arbitration or administrative proceeding
is current or pending against any Group Company which, if adversely
determined, could reasonably be expected to have a Material Adverse
Effect.
18.10 ENVIRONMENT
(a) Each Group Company is and has at all times taken such steps as are
necessary to comply in all material respects with all Environmental
Laws and all Environmental Approvals necessary in connection with
the ownership and operation of its business have been obtained and
are in full force and effect.
(b) To the best of its knowledge and belief having made due and careful
enquiry, there are no circumstances which could reasonably be
expected to prevent any Group Company from complying in all material
respects with any Environmental Law or Environmental Approval
(c) No material investment of which the relevant Group Company is aware
and which is necessary to obtain, renew, extend, modify, revoke,
suspend or surrender any Environmental Approval or to ensure
compliance with any Environmental Law has not been budgeted for.
(d) To the best of its knowledge and belief having made due and careful
enquiry, no Group Company is aware of any actual changes or other
possible changes (which are referred to in
51
national, international or European bodies' or other regulatory
bodies' consultation papers or in other formal methods of announcing
possible changes) in Environmental Law which could reasonably be
expected to have a Material Adverse Effect.
18.11 OWNERSHIP OF ASSETS
Each Group Company has good title to all assets necessary to conduct its
business.
18.12 ACCOUNTS
(a) The Original Audited Accounts were prepared in accordance with
French gaap consistently applied and fairly represent the
consolidated financial position (as at the date to which they were
prepared) of and the results of the operations of, the Group for the
period to which they relate and the state of the affairs of the
Group (as the case may be) at the end of the relevant period and, in
particular, disclose or reserve against all liabilities (actual or
contingent).
(b) The Original Management Accounts show with reasonable accuracy the
consolidated financial position of the Group as at the date to which
they were prepared and the results of the operations of the Group
for the period to which they relate and the state of the affairs of
the Group at the end of such period and, in particular, disclose or
reserve against all liabilities (actual or contingent).
(c) The latest Annual Accounts and the latest Half-Year Accounts
delivered from time to time under clause 19.10(c) (Financial
statements) were prepared in accordance with French gaap
consistently applied and, in the case of:
(i) the latest Annual Accounts, fairly represent the consolidated
financial position of the Group as at the date to which they
were prepared and the results of the operations of the Group
for the period to which they related and the state of the
affairs of the Group at the end of that period and, in
particular, disclose or reserve against all liabilities
(actual or contingent); and
(ii) the latest Half-Year Accounts show with reasonable accuracy
the consolidated financial position of the Group as at the
date to which they were prepared and the results of the
operations of the Group for the period to which they related
and, in particular, disclose or reserve against all
liabilities (actual or contingent) to the extent required by
the Approved Accounting Principles.
18.13 APPROVED PROJECTIONS
(a) All statements of fact (taken as a whole) in principle recorded in
the Approved Projections are true and accurate in all material
respects.
(b) The opinions and views expressed in the Approved Projections
represent the honestly held opinions and views of the Senior
Management Team and were arrived at after careful consideration and
are based on reasonable grounds.
(c) The projections and forecasts contained in the Approved Projections
are based upon assumptions (including assumptions as to the future
performance of the Group, inflation, price increases, interest rates
and efficiency gains) which have been carefully considered by the
directors of the Parent and which are considered by them to be fair
and reasonable in each case as at the date which the relevant fact,
opinion, view, projection or forecast was provided or as at the date
at which it is stated.
52
(d) The Approved Projections are not misleading in any material respect
and do not omit to disclose any matter where failure to disclose
such matter would result in the Approved Projections (or any
information or business plan contained therein) to be misleading in
any material respect for any person considering whether to provide
finance to the Obligors.
(e) Nothing has occurred or come to the attention of the Parent since
the date as at which the Approved Projections were prepared which
renders any material facts contained in the Approved Projections
materially inaccurate or misleading or which makes any of the
opinions, projections or forecasts contained in the Approved
Projections unfair or unreasonable or renders any of the assumptions
on which the projections are based unfair or unreasonable.
18.14 HIGH YIELD DOCUMENTS
The High Yield Documents and the Intra-Group Bond Documents as provided to
the Facility Agent under this agreement contain all the material terms of
the agreements and arrangements pertaining to the transactions
contemplated therein.
18.15 FINCO
Finco:
(a) is a direct, wholly-owned Subsidiary of the Parent (save for one
share held by Antargaz); and
(b) has not carried on any business or incurred any liabilities, other
than by entering into and performing the High Yield Documents and
Intra-Group Bond Documents to which it is a party.
18.16 MATERIAL ADVERSE EFFECT
As at the Signing Date and the first Drawdown Date, there has been no
event which has had a Material Adverse Effect since the date to which the
Original Management Accounts were prepared.
18.17 MATERIAL DISCLOSURES
It has fully disclosed in writing to the Facility Agent all facts of which
it is aware having made due and careful enquiry relating to the Group
which it knows could reasonably be expected to materially influence the
decision of the Lenders to make the Facilities available to the Obligors.
18.18 HOLDING COMPANY
The Parent is a holding company and it has not carried on any business or
incurred any liabilities other than by entering into or under the
Transaction Documents (including auditors fees and expenses) and certain
trading activities in the LPG business.
18.19 SYNDICATION MEMORANDUM
The Syndication Memorandum is not misleading in any material respect and
has been read and approved by the Senior Management Team.
18.20 REPETITION
The representations and warranties in this clause 18 are made on the date
of this agreement and shall be deemed repeated on, the date of each
Drawdown Request and on each Drawdown Date (other than
53
in the case of a Rollover Advance), in each case by reference to the facts
and circumstances existing on that date, except that:
(a) the representations and warranties set out in clauses 18.9
(Litigation), 18.13 (Approved Projections), 18.16 (Material Adverse
Effect), 18.17 (Material disclosures) and 18.18 (Holding Company)
shall not be repeated after the first Drawdown Date;
(b) the representations and warranties set out in clauses 18.11
(Ownership of assets), 18.13 (Approved Projections), 18.15 (Finco),
and 18.18 (Holding Company) shall only be made by the Parent; and
(c) the representation and warranty set out in clause 18.19 (Syndication
Memorandum) shall only be made on the date of the Syndication
Memorandum.
19. UNDERTAKINGS
19.1 DURATION OF UNDERTAKINGS
Each Obligor undertakes to each Finance Party in the terms of this clause
19 from the date of this agreement until all amounts outstanding under the
Senior Finance Documents have been discharged and no Finance Party has any
further Commitment or obligations under the Senior Finance Documents.
19.2 AUTHORISATIONS AND STATUS UNDERTAKINGS
(a) CONSENTS
Each Obligor will obtain within the required time period and
maintain in full force and effect all consents and filings required
under any applicable law or regulation:
(i) to enable it to perform its payment and other material
obligations under each Transaction Document to which it is a
party;
(ii) for the validity, enforceability or admissibility in evidence
(other than certified translations of the Transaction
Documents into French) of each such Transaction Document; and
(iii) to ensure that its obligations under the Transaction Documents
are legal, valid and binding and each of the Security
Documents constitutes valid security ranking in accordance
with its terms.
(b) MAINTENANCE OF STATUS AND AUTHORISATION
Each Obligor will, and will procure that each of its Subsidiaries
will:
(i) do all things necessary to maintain its corporate existence;
(ii) obtain and maintain in full force and effect all consents and
filings required for the conduct of its business; and
(iii) comply with all laws and regulations applicable to it,
where failure to do so could reasonably be expected to materially
impair its ability to perform its obligations under the Senior
Finance Documents.
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(c) AMALGAMATIONS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, amalgamate, merge or consolidate with or into any
other person or be the subject of any reconstruction, except for any
amalgamation, merger, consolidation or reconstruction:
(i) of two or more Group Companies which are not Obligors or
Finco;
(ii) of two or more Group Companies involving any Obligor but not
the Parent or Finco (provided that such amalgamation, merger,
consolidation or reconstruction does not adversely affect the
economic and legal effect of the guarantee and security
position of the Finance Parties under the relevant Senior
Finance Documents prior thereto); or
(iii) otherwise with the prior written consent of the Majority
Lenders.
(d) CHANGE OF BUSINESS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, make a material change to the nature of its core
business.
(e) SUBSIDIARY CONSTITUTIONAL DOCUMENTS
No Obligor (other than the Parent) will, and each Obligor will
procure that none of its Subsidiaries will, agree to any amendment
of its constitutional documents which could reasonably be expected
to be materially adverse to the interests of any Finance Party under
any Senior Finance Document (excluding, for the avoidance of doubt,
any amendment in connection with any transaction permitted under
clause 19.9 (Share capital, dividend and other junior financing
arrangement undertakings)).
(f) HOLDING COMPANY STATUS
The Parent shall not carry on any business other than the holding of
shares in and the provision of administrative services to other
Group Companies or acquire any assets (other than pursuant to any
Supply Agreement entered into by it after the date of this
agreement) or certain trading activities in the LPG business.
(g) FINCO STATUS
Finco will remain a direct, wholly-owned Subsidiary of the Parent
(except as to one share, which will be owned by Antargaz) and shall
not carry on any business or hold any assets other than the holding
of the Intra-Group Bonds and the carrying out of obligations under
the High Yield Documents and Intra-Group Bond Documents to which it
is a party (subject in each case to the provisions of the Senior
Finance Documents).
(h) PARI PASSU RANKING
Each Obligor shall ensure that the claims of the Finance Parties
under the Senior Finance Documents will at all times rank at least
pari passu in right and priority of payment with the claims of all
its other present and future unsecured and unsubordinated creditors
except those whose claims are preferred solely by operation of law.
(i) CONSENTS TO PLEDGES
55
The Parent shall do its best efforts to obtain the consent of the
board of Societe Bearnaise des Gaz Liquefies (Sobegal) SA and of the
shareholders' meetings of Societe Industrielle des Gaz de Petrole de
l'Ouest (S.I.G.A.P. Ouest) SARL to the pledges relating to the
shares of these companies within the four months following the first
Drawdown Date.
19.3 DISPOSALS AND SECURITY UNDERTAKINGS
(a) DISPOSALS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, (whether by a single transaction or a series of
related or unrelated transactions and whether at the same time or
over a period of time) sell, transfer, lease out or otherwise
dispose (each a "DISPOSAL") of any of its assets or agree to do so,
other than:
(i) any disposal of assets on arm's length terms in the ordinary
course of business;
(ii) any inventory disposal by any Group Company in the ordinary
course of trading;
(iii) any disposal of obsolete or redundant plant and equipment, or
of property not required for the operation of its business;
(iv) any disposal of assets to an Obligor which is party to a
legally valid, binding and enforceable Security Document which
creates a valid and effective Security Interest over the asset
securing all or substantially all amounts outstanding under
the Senior Finance Documents;
(v) any disposal of Cash Equivalents on arm's length terms;
(vi) any disposal of assets by a Group Company (other than an
Obligor) to another Group Company (other than Finco);
(vii) disposals (other than to Finco) of assets on arm's length
terms not otherwise permitted under this clause 19.3;
(viii)the exchange of assets (the "TRANSFERRED ASSETS") for other
assets of a comparable or superior nature and value (the
"RECEIVED ASSETS"), provided that, if the Transferred Assets
were subject to a Security Interest in favour of the Finance
Parties, then a Security Interest in favour of the Finance
Parties (and acceptable in form, nature and substance to the
Security Agent) shall be granted by the relevant Group Company
over the Received Assets; and
(ix) any other disposal made with the prior consent of the Majority
Lenders,
provided always that no disposal may be made of any shares in:
(A) any Distribution Company which would result in the
Parent owning (directly or indirectly) less than 95 per
cent. of the equity share capital in that Distribution
Company; or
(B) any Material Company (other than a Distribution
Company).
(b) DISPOSALS FOR FULL CONSIDERATION
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Each Obligor will, and each Obligor will, procure that its Subsidiaries will,
ensure that any disposal permitted by clause 19.3(a) is:
(i) for at least the higher of book value and market value payable
in cash on or before completion of that disposal; and
(ii) as part of an arm's length transaction on terms that the
purchaser of the relevant asset does not obtain title to or
possession of that asset before completion of that disposal.
(c) NEGATIVE PLEDGE
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, create or agree to create or permit to subsist
any Security Interest over any part of its assets, other than:
(i) any Security Interest existing at the date of this agreement,
provided that the maximum amount secured by any such Security
Interest shall not be increased after the date of this
agreement;
(ii) any Security Interest granted by the Senior Finance Documents;
(iii) liens securing obligations no more than 30 days overdue,
arising by operation of law and in the ordinary course of
business;
(iv) Security Interests arising out of title retention provisions
in a supplier's standard conditions of supply of goods where
the goods in question are supplied on credit and are acquired
by relevant Group Company in the ordinary course of trading;
(v) rights of set-off existing in the ordinary course of trading
activities between any Group Company and its respective
suppliers or customers;
(vi) rights of set-off arising by operation of law or by contract
by virtue of the provision to any Group Company of clearing
bank facilities or overdraft facilities permitted under this
agreement;
(vii) Security Interests up to a maximum aggregate amount of EUR
1,525,000 (or its equivalent in other currencies) for taxes,
assessments or charges (A) not yet due or (B) that are being
contested in good faith;
(viii)liens in favour of French tax authorities securing the
liabilities of any Group Company under tax reassessments in
respect of French professional tax (taxe professionnelle), to
the extent that such liabilities are fully guaranteed by the
Vendors under the provisions of the Warranty Agreement;
(ix) Security Interests created in connection with pre-judgement
court proceedings up to a maximum aggregate amount not
exceeding EUR 1,525,000 (or its equivalent in other
currencies);
(x) any Security Interests not otherwise permitted under this
clause 19.3(c) created by any Subsidiary of Antargaz and
securing Financial Indebtedness (other than any such Financial
Indebtedness arising under or in connection with the High
Yield Documents or the Intra-Group Bond Documents) in an
aggregate principal amount not exceeding EUR 1,500,000 (or its
equivalent in other currencies);
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(xi) any Security Interest created by any Partly Owned Storage and
Logistics Company in respect of which, pursuant to the
shareholder agreement or constitutional documents relating to
that Partly Owned Storage and Logistics Company, the Group
Company which holds a direct equity interest in that Partly
Owned Storage and Logistics Company is not entitled to
prohibit the creation of that Security Interest; and
(xii) any other Security Interest created with the prior written
consent of the Majority Lenders.
(d) DE-REGISTRATION OF EXISTING PLEDGES OF BUSINESSES
The Parent and Antargaz shall procure that the existing pledges of
businesses (nantissements de fonds de commerce) relating to the
businesses of the Parent and Antargaz, respectively, and securing
the Existing Facilities shall have been de-registered (radies)
before the end of a 4 month period following the first Drawdown Date
and shall provide evidence of such de-registration to the Facility
Agent within the same period.
19.4 ACQUISITION AND INVESTMENT UNDERTAKINGS
(a) ACQUISITIONS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, acquire any assets or shares, other than:
(i) in the ordinary course of its trading activity;
(ii) any Permitted Acquisition, provided that:
(A) the Parent demonstrates to the satisfaction of the
Facility Agent that the Permitted Acquisition is funded
entirely out of:
(1) a New Equity Contribution; and/or
(2) Cash and Cash Equivalents owned by Group
Companies;
(B) in respect of any individual Permitted Acquisition where
the aggregate of the purchase price paid, or to be paid,
for the shares or assets comprised in that Permitted
Acquisition plus the total net debt assumed or repaid,
or to be assumed or repaid, in connection with that
Permitted Acquisition (together, the "ENTERPRISE VALUE")
does not exceed EUR 15,000,000 (or its equivalent in
other currencies), the Parent has provided the Facility
Agent with revised financial projections and forecasts
for the business of the Group incorporating that
Permitted Acquisition no later that 10 Business Days
prior to the date of that Permitted Acquisition;
(C) in respect of any individual Permitted Acquisition where
the enterprise value of that Permitted Acquisition
exceeds EUR 15,000,000 (or its equivalent in other
currencies), the Parent has provided the Facility Agent
with revised financial projections and forecasts for the
business of the Group incorporating that Permitted
Acquisition and a legal and accounting due diligence
report, in each case in form and substance satisfactory
to the Majority Lenders, no later than 30 days prior to
the date of that Permitted Acquisition; and
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(D) the aggregate enterprise values of all Permitted
Acquisitions after the Signing Date does not exceed EUR
60,000,000 (or its equivalent in other currencies); and
(iii) (subject to clause 19.3(a) (Disposals)), shares owned by it or
any other Group Company in any other Group Company as at the
Signing Date.
(b) JOINT VENTURES
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, enter into any Joint Venture or invest any amount
(whether by way of loan, subscription for share capital, incurrence
of any liabilities or otherwise) in any Joint Venture, other than:
(i) an investment by a Group Company (other than the Parent or
Finco) in Groupement Donges or any Joint Venture to which it
is a party at the date of this agreement (an "EXISTING JOINT
VENTURE") provided that investment is:
(A) expressly permitted under clause 19.5 (Financing
arrangement undertakings); or
(B) made by way of equity contribution and/or shareholders'
loans (provided that the aggregate amount of all such
equity contributions and outstanding loans pursuant to
clause 19.5(c)(ii)(A) (Loans) shall not exceed EUR
22,875,000 (or its equivalent in other currencies) at
any time);
(ii) an investment by a Group Company (other than the Parent or
Finco) in any Joint Venture (other than any existing Joint
Venture) where:
(A) the liability of that Group Company in respect of that
Joint Venture is limited to the aggregate amount
invested by that Group Company in that Joint Venture;
(B) any investment in that Joint Venture is made by way of
equity subscription or shareholder loan; and
(C) the aggregate Investment Amount invested in all Joint
Ventures under this sub-paragraph (ii) in any Financial
Year does not exceed EUR 10,000,000 (or its equivalent
in other currencies).
19.5 FINANCING ARRANGEMENT UNDERTAKINGS
(a) BORROWINGS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, incur or permit to be outstanding any Financial
Indebtedness, other than:
(i) any Financial Indebtedness of Rhone Gaz existing at the
Signing Date;
(ii) amounts due under any Senior Finance Document, the High Yield
Notes, the IntraGroup Bonds or in respect of a Private Equity
Contribution;
(iii) Financial Indebtedness permitted by clauses 19.5(b)
(Guarantees), 19.5(c) (Loans), 19.5(d) (Hedging) or 19.5(e)
(Banking business);
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(iv) unsecured overdraft or working capital facilities of any
Group Company (other than Finco) in relation to which a Bank
Guarantee in an amount equal to the maximum principal amount
of those facilities has been issued;
(v) loans arising by operation of law (including labour and tax
regulations);
(vi) any Financial Indebtedness of any Group Company (other than
Finco) in an aggregate principal amount which does not exceed
EUR 25,000,000 (or its equivalent in other currencies) at any
time;
(vii) any Financial Indebtedness created by any Partly Owned
Storage and Logistics Company with a third party in respect
of which, pursuant to the shareholder agreement or
constitutional documents relating to that Partly Owned
Storage and Logistics Company, the Group Company (the
"INVESTING GROUP COMPANY") which holds a direct equity
interest in that Partly Owned Storage and Logistics Company
is not entitled to prohibit the creation of that Financial
Indebtedness, provided that the aggregate amount of Financial
Indebtedness ("THIRD PARTY INDEBTEDNESS") created pursuant to
this sub-paragraph (vii) by Partly Owned Storage and
Logistics Companies where any investing Group Company is
liable for the debts of that Partly Owned Storage and
Logistics Company does not exceed EUR 10,000,000 (or its
equivalent in other currencies) at any time;
(viii) bank guarantees (cautions bancaires) issued to French tax
authorities to secure the liabilities of any Group Company
under tax reassessments in respect of French professional tax
(taxe professionnelle), to the extent that such liabilities
are fully guaranteed by the Vendors under the provisions of
the Warranty Agreement; and
(ix) any other Financial Indebtedness incurred with the prior
consent of the Majority Lenders.
(b) GUARANTEES
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will grant or make available any guarantee, other than:
(i) any guarantee existing on the date of this agreement, provided
that the maximum amount guaranteed by any such guarantee shall
not be increased after the date of this agreement;
(ii) any guarantee contained in any Senior Finance Document (or the
High Yield Guarantee);
(iii) any guarantee of Financial Indebtedness which is otherwise
permitted under clause 19.5(a) (Borrowings) (other than any
such Financial Indebtedness arising under or in connection
with the High Yield Documents or the Intra-Group Bond
Documents); and
(iv) any other guarantees given by a Group Company (other than
Finco) in the ordinary course of its (or any of its
Subsidiaries') business in respect of its obligations or the
obligations of any of its Subsidiaries (other than Finco)
provided that such obligations do not have the nature of
Financial Indebtedness and that the aggregate maximum
contingent liability under all such guarantees does not exceed
EUR 50,000,000 (or its equivalent in other currencies) at any
time.
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(c) LOANS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, make any loans or grant any credit to any person,
other than:
(i) credit granted by any Group Company (other than Finco) in the
ordinary course of its trading activities;
(ii) any loan made by a Group Company (the "LENDING GROUP COMPANY")
to any other Group Company (the "BORROWING GROUP COMPANY") (in
each case, other than Finco), provided that:
(A) the aggregate amount of outstanding loans made by
Obligors to Group Companies which are not Obligors
(together with the aggregate amount of equity
contributions and/or shareholders' loans made pursuant
to clause 19.4(b)(i) (Joint Ventures) but excluding for
the avoidance of doubt any equity contributions made
pursuant to clause 19.4(b)(ii) (Joint Ventures)) shall
at no time exceed EUR 22,875,000 (or its equivalent in
other currencies); and
(B) if the lending Group Company is a Borrower under the
Revolving Facility, that lending Group Company grants to
the Finance Parties an assignment (cession) of the
benefit of that intercompany loan by way of security
(pursuant to the Loi Dailly);
(iii) any loan or grant of credit to employees of the Group (to the
extent permissible under applicable law) provided that the
maximum aggregate principal amount of all such loans shall not
exceed EUR 2,300,000 (or its equivalent in other currencies)
for the Group taken as a whole;
(iv) the Intra-Group Bonds; and
(v) any other loan or grant of credit granted with the prior
consent of the Majority Lenders.
(d) HEDGING
(i) No Obligor will, and each Obligor will procure that none of
its Subsidiaries will, enter into any Derivative Instrument
other than (A) the Hedging Agreements referred to in
sub-paragraph (ii) below and (B) Derivative Instruments
entered into by any Group Company (other than Finco) in the
ordinary course of its business for the purpose of managing or
hedging its exposure to interest rates, exchange rates or
commodity prices (but excluding speculative purposes).
(ii) The Obligors will, by no later than 120 days after the Signing
Date, enter into Hedging Agreements with Hedging Lenders
(and/or maintain any existing derivative instruments) so as to
ensure that, for a period of at least two years from the
Signing Date, the Group has hedging of interest rate exposure
on terms satisfactory to the Facility Agent in relation to at
least 50 per cent. of the amount of funds available under the
Term Facility.
(iii) The parties shall agree to use standard ISDA agreements as
Hedging Agreements.
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(e) BANKING BUSINESS
Each Obligor will, and will procure that each of its Subsidiaries
will:
(i) only maintain bank accounts with:
(A) those banks with which they hold accounts at the date of
this agreement;
(B) banks which are approved by the Facility Agent (such
approval not to be unreasonably withheld or delayed); or
(C) any Finance Party; and
(ii) save for facilities provided under the terms of the Senior
Finance Documents, only carry on banking business with and
(subject to clause 19.5(a) (Borrowings)) obtain unsecured
overdraft and working capital facilities from banks approved
by the Facility Agent (such approval not to be unreasonably
withheld or delayed).
19.6 CONDUCT OF BUSINESS UNDERTAKINGS
(a) INSURANCE
(i) Each Obligor will, and will procure that each of its
Subsidiaries will effect and thereafter maintain insurances at
its own expense in relation to all its assets and risks of an
insurable nature with reputable insurers which:
(A) provide cover against such risks, and to such extent, as
normally insured against by other companies owning or
possessing similar assets or carrying on similar
businesses; and
(B) shall be in amounts which would in the circumstances be
prudent for those companies.
(ii) The Parent will:
(A) supply to the Facility Agent on request copies of each
policy for insurance required to be maintained in
accordance with clause 19.6(a)(i) or (ii) (the
"POLICIES"), together with the current premium receipts
relating to the policies;
(B) as soon as reasonably practicable, notify the Facility
Agent of any material change to the insurance cover of
each Obligor and each Obligor's subsidiaries; and
(C) as soon as reasonably practicable, notify the Facility
Agent of any claim under any policy which is for, or is
reasonably likely to result in a claim under that policy
for, an amount in excess of EUR 775,000 (or its
equivalent in other currencies).
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(b) INTELLECTUAL PROPERTY
Each Obligor will, and will procure that each of its Subsidiaries
will:
(i) ensure that it beneficially owns or has all necessary consents
to use all the Intellectual Property Rights that it requires
in order to conduct its business;
(ii) observe and comply with all obligations and laws applicable to
it in relation to the Intellectual Property;
(iii) maintain and protect the Intellectual Property required for
the operation of its business; and
(iv) comply at all times with the Sale and Purchase Agreement and
in particular the provisions of clause 5 of the Sale and
Purchase Agreement (Droits de Propriete Intellectuelle et
Signes Distinctifs/Relations Commerciales),
in each case where not doing so could reasonably be expected to
prejudice the interests of the Finance Parties under the Senior
Finance Documents.
(c) TAXES
Each Obligor will, and will procure that each of its Subsidiaries
will, pay when due (or within any applicable time limit), all Taxes
imposed upon it or any of its assets, income or profits on any
transactions undertaken or entered into by it except in relation to
any bona fide tax dispute (for which, if applicable, provision has
been made in its accounts).
(d) ARM'S LENGTH TRANSACTIONS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, enter into any agreement or arrangement other
than on an arm's length basis.
(e) RING FENCING OF FINCO
Notwithstanding any other provision of this agreement, no Obligor
will (and each Obligor will procure that none of its Subsidiaries
will):
(i) make any loan to or grant any financial accommodation to
Finco;
(ii) pay any interest, principal or any other amount to, or
otherwise transfer monies to Finco whatsoever (except pursuant
to the High Yield Documents and the Intra-Group Bond Documents
to the extent permitted by the Intercreditor Agreement);
(iii) grant any guarantee (except the High Yield Guarantee) or
Security Interest or enter into any participation or purchase
arrangements in relation to any obligation of Finco;
(iv) sell, transfer, lease out, lend or otherwise dispose of any
asset to Finco,
save in each case as expressly permitted under the Intercreditor
Agreement.
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19.7 ENVIRONMENTAL UNDERTAKINGS
Each Obligor will, and each Obligor will procure that each of its
Subsidiaries will:
(a) comply in all material respects with all Environmental Approvals and
Environmental Laws applicable to it;
(b) obtain and maintain to the satisfaction of all relevant regulatory
bodies all Environmental Approvals applicable to it;
(c) promptly upon receipt of the same notify the Facility Agent of any
claim, notice or other communication served on it in relation to any
Environmental Law or Environmental Approval applicable to it or if
it becomes aware of any actual material variation to any
Environmental Law or Environmental Approval;
(d) promptly notify the Facility Agent of any material investment
required to be made by any Group Company to maintain, acquire,
renew, modify, amend, surrender or revoke any Environmental Approval
or if it otherwise becomes aware of such a requirement; and
(e) use all reasonable precautions to avoid actions which may give rise
to a material liability under Environmental Law.
19.8 TRANSACTION DOCUMENT UNDERTAKINGS
(a) CHANGES TO ACQUISITION DOCUMENTS AND MATERIAL CONTRACTS
The Parent will not, and will procure that none of its Subsidiaries
will:
(i) agree to any amendment or waiver of any term of any
Acquisition Document or Material Contract; or
(ii) exercise any discretion or give any consent under any
Acquisition Document or Material Contract,
in each case which could reasonably be expected to prejudice the
interests of the Finance Parties under the Senior Finance Documents.
(b) CLAIMS UNDER ACQUISITION DOCUMENTS AND MATERIAL CONTRACTS
The Parent will, and will use its best efforts to procure that each
of its Subsidiaries will:
(i) take all reasonable action to enforce any claim it has in
relation to the warranties given under any Acquisition
Document and to enforce all other material rights it may have
under any Acquisition Document or Material Contract;
(ii) notify the Facility Agent promptly of any material
indemnification request made by a Group Company under an
Acquisition Document or any material claim made by a Group
Company under Material Contract;
(iii) provide the Facility Agent with reasonable details of that
claim and its progress; and
(iv) notify the Facility Agent as soon as practicable upon that
claim being resolved,
64
in each case where failure to do so could reasonably be expected to
prejudice the interests of the Finance Parties under the Senior
Finance Documents.
(c) CHANGES TO EQUITY DOCUMENTS
The Parent will not, and will procure that none of its Subsidiaries
will, agree to any amendment of any term of any Equity Document
which could reasonably be expected to adversely affect the interests
of any Finance Party under the Senior Finance Documents.
(d) CHANGES TO THE HIGH YIELD DOCUMENTS AND INTRA-GROUP BOND DOCUMENTS
The Parent will not, and will procure that Finco will not agree to
any amendment of the High Yield Documents or Intra-Group Bond
Documents which would conflict with any provision of the
Intercreditor Agreement.
19.9 SHARE CAPITAL, DIVIDEND AND OTHER JUNIOR FINANCING ARRANGEMENT
UNDERTAKINGS
(a) SHARE ISSUES
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, allot or issue any securities (valeurs
mobilieres) other than:
(i) an issue of shares by one Group Company (other than Finco) to
another Group Company (other than Finco) allowing, in the case
of non wholly-owned members of the Group, for proportionate
issues to minority shareholders;
(ii) an issue of shares by one Group Company (other than Finco) to
any Group pension scheme or employee incentive scheme;
(iii) any issue of shares in the Parent for the purposes of a
Private Equity Contribution; or
(iv) any issue of shares with the prior consent of the Majority
Lenders.
(b) REDEMPTION AND ACQUISITION OF OWN SHARES
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, directly or indirectly redeem, purchase, retire
or otherwise acquire any shares or warrants issued by it or
otherwise reduce its capital, other than:
(i) in favour of an Obligor;
(ii) where it is obliged to do so by law;
(iii) as permitted under clause 19.9(c)(ii) (Restriction on payment
of dividends);
(iv) as permitted under the Intercreditor Agreement; or
(v) a reduction of capital of the Parent in the maximum of EUR
25,000,000 to be made on or before the first Drawdown Date.
(c) RESTRICTION ON PAYMENT OF DIVIDENDS
(i) No Obligor will, and each Obligor will procure that none of
its Subsidiaries will, declare or pay, directly or indirectly,
any dividend or make any other distribution or
65
pay any interest or other amounts, whether in cash or
otherwise, on or in respect of its share capital or any class
of its share capital or set apart any sum for any such purpose
other than:
(A) by a Group Company to the Parent or another Group
Company which is a Subsidiary of the Parent;
(B) with the prior consent of the Majority Lenders;
(C) as permitted under paragraph (ii) of this clause
19.9(c); or
(D) as permitted under the Intercreditor Agreement.
(ii) Notwithstanding the provisions of paragraph (i) of this clause
19.9(c), the provisions of clause 19.9(b) (Redemption and
acquisition of own shares) and the provisions of clause
19.9(d) (Shareholder payments), the Parent may (x) redeem,
purchase, retire or otherwise acquire any shares or warrants
issued by it or otherwise reduce its capital or (y) declare or
pay any dividend or make any other distribution or pay any
interest or other amounts, whether in cash or otherwise, on or
in respect of its share capital or any class of its share
capital or set apart any sum for any such purpose or (z) make
any repayment of principal of, or payment of interest on, or
any other payment with respect to any shareholder investment
by way of indebtedness in the Parent (each such transaction
described in (x), (y) and (z) above being referred to as a
"RESTRICTED PAYMENT") if a the time the Parent makes any such
Restricted Payment:
(A) no Major Default (as defined below) shall have occurred
and be continuing (or would result therefrom);
(B) the aggregate amount of such Restricted Payment and all
other Restricted Payments made in any Financial Year is
not greater than 50 per cent. of the Consolidated Net
Income for the immediately preceding Financial Year;
(C) such Restricted Payment is legally permitted;
(D) such Restricted Payment is not prohibited by the
provisions of sub-paragraph (B)(1) of the definition of
"Permitted Controlling Investors" in paragraph (iii) of
clause 11.3(b) (Sale, Change of Control and Listing);
and
(E) such Restricted Payment is not suspended by the
Intercreditor Agreement.
For the avoidance of doubt, the reduction of capital of the
Parent referred to in paragraph (v) of clause 19.9(b)
(Redemption and acquisition of own shares) shall not be a
Restricted Payment for the purpose of this clause 19.9(c)(ii).
For the purposes of this clause 19.9(c)(ii):
"CONSOLIDATED NET INCOME" means, for any period, the net
income (loss) of the Group determined in accordance with
French gaap and Approved Accounting Principles, provided that
the following items will not be included in the Consolidated
Net Income: (1) amortisation of goodwill, (2) depreciation of
assets that have been revaluated in connection with the
Acquisition, and (3) to the extent reflected in the
consolidated net income, the effect of any non-cash items
resulting from any write-up, write-down or write-off of assets
of the Group in connection with the Acquisition or any future
acquisition; and
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"MAJOR DEFAULT" means:
(1) the failure by any Obligor to pay any amount payable by
it under any Senior Finance Document on the due date for
payment thereof;
(2) any of the obligations of the Obligors under clause
19.11 (Financial covenants) is not complied with;
(3) the occurrence of any of the Events of Default specified
is clause 20.1(d)(Invalidity and unlawfulness);
(4) the occurrence of any of the Events of Default specified
in clauses 20.1(e) (Insolvency) to 20.1(k) (Similar
events elsewhere);
(5) the occurrence of any of the Events of Default specified
in clause 20.1(o) (Cross Default);
(6) the occurrence of any of the Events of Default specified
in clause 20.1(v) (Material adverse effect); or
(7) a notice to the Parent is outstanding under clause 20.2
(Cancellation and repayment).
(d) SHAREHOLDER PAYMENTS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, make any repayment of principal of, or payment of
interest on, or any other payment with respect to any shareholder
investment by way of indebtedness in the Parent, other than:
(i) as permitted under clause 19.9(c)(ii)) (Restriction on payment
of dividends); or
(ii) with the prior consent of the Majority Lenders.
(e) PAYMENTS TO MEMBERS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, make any payment to its members by way of
management, royalty or similar fee unless that payment is in
relation to services actually provided on arm's length commercial
terms or is otherwise permitted under the Senior Finance Documents.
(f) CASH MOVEMENT
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, be a party to any contractual or similar
restriction (except as set out in any Senior Finance Document, any
High Yield Document or any Intra-Group Bond Document) by which any
Group Company is prohibited from making loans, transferring assets
or making any payment of dividends, distributions of income or other
amounts.
(g) INTRA-GROUP BOND DOCUMENTS AND HIGH YIELD DOCUMENTS
No Obligor will, and each Obligor will ensure that none of its
Subsidiaries will, make any repayment of principal or payment of
interest or of any amount under any of the High Yield
67
Documents and Intra-Group Bond Documents, other than as permitted
under the Intercreditor Agreement.
19.10 INFORMATION AND ACCOUNTING UNDERTAKINGS
(a) DEFAULTS
Each Obligor will notify the Facility Agent forthwith upon becoming
aware of the occurrence of a Default and will from time to time on
request (with a reasonable period between requests) supply the
Facility Agent with a certificate signed by its mandataire social
certifying that no Default has occurred and is continuing or, if
that is not the case, setting out details of any Default which is
outstanding and the action taken or proposed to be taken to remedy
it.
(b) BOOKS OF ACCOUNT AND AUDITORS
Each Obligor will, and will procure that each of its Subsidiaries
will:
(i) keep proper books of account relating to its business; and
(ii) have as its auditors any one of Deloitte & Touche, Ernst &
Young, KPMG, PricewaterhouseCoopers, Mazars, RSM Salustro
Reydel or Grant Thorton (or such other firm as the Facility
Agent shall approve (such approval not to be unreasonably
withheld or delayed)) (except in the case of a Partly Owned
Storage and Logistics Company which, as at the Signing Date,
has a different firm of auditors and, pursuant to the
shareholder agreement or constitutional documents relating to
that Partly Owned Storage and Logistics Company, the Group
Company which holds a direct equity interest in that Partly
Owned Storage and Logistics Company is not entitled to procure
a change of those existing auditors).
(c) FINANCIAL STATEMENTS
The Parent will deliver to the Facility Agent (with sufficient
copies for each of the Lenders if requested):
(i) as soon as available, and in any event within 120 days after
the end of each Financial Year (and at the latest on 15 July
2003 in respect of the Financial Year ending on 31 March
2003), copies of:
(A) the audited consolidated accounts of the Group as at the
end of and for that Financial Year, including a profit
and loss account, balance sheet, cash flow statement and
directors and auditors' report on those accounts; and
(B) the audited accounts of each Obligor for that Financial
Year;
(ii) as soon as available, and in any event within 60 days of the
end of the first Accounting Half-Year in each Financial Year,
copies of the unaudited consolidated management accounts of
the Group as at the end of and for that Accounting Half-Year,
including, both for the 6 month period comprising such
Accounting Half-Year and for the aggregate 12 month period
comprising such Accounting Half-Year and the immediately
preceding Accounting Half-Year, a profit and loss account,
balance sheet, cash flow statement and management commentary
for the Group, in such form as the Facility Agent may
reasonably require;
68
(iii) no less than ten days before the beginning of each Financial
Year, the Operating Budget for that Financial Year, in such
form as the Facility Agent may reasonably require,
which accounts, Operating Budget and update to the Operating Budget
shall, in each case, have been approved by the chief financial
officer of the Parent.
(d) COMPLIANCE CERTIFICATES
(i) Each of the Annual Accounts and Half-Year Accounts must be
accompanied by a certificate signed by the chief financial
officer and (in the case of the Annual Accounts only) the
mandataire social of the Parent, which shall:
(A) certify whether or not, as at the date of the relevant
accounts, the Parent was in compliance with the
financial covenants contained in clause 19.11 (Financial
covenants) and contain reasonably detailed calculations;
and
(B) confirm that, as at the date of that certificate, no
Event of Default is outstanding and, to best of
knowledge after due and careful inquiry, no Potential
Event of Default is outstanding.
(ii) Each of the Annual Accounts must be accompanied by a
certificate from the Auditors which shall be in a form
substantially in schedule 7.
(e) APPROVED ACCOUNTING PRINCIPLES
All accounts of any Group Company delivered to the Facility Agent
under this agreement shall be prepared in accordance with the
Approved Accounting Principles. If there is a change in the Approved
Accounting Principles after the date of this agreement:
(i) the Parent shall as soon as practicable advise the Facility
Agent;
(ii) following request by the Facility Agent, the Parent and the
Facility Agent shall negotiate in good faith with a view to
agreeing any amendments to clauses 19.11 (Financial covenants)
and 19.12 (Financial definitions) which are necessary to give
the Lenders comparable protection to that contemplated by
those clauses at the date of this agreement;
(iii) if amendments satisfactory to the Majority Lenders are agreed
by the Parent and the Facility Agent within 30 days of that
notification to the Facility Agent, those amendments shall
take effect in accordance with the terms of that agreement;
and
(iv) if amendments satisfactory to the Majority Lenders are not so
agreed within 30 days then, within 15 days after the end of
that 30 day period, the Parent shall either:
(A) deliver to the Facility Agent, in reasonable detail and
in a form satisfactory to the Facility Agent, details of
all any adjustments which need to be made to the
relevant accounts in order to bring them into line with
the Approved Accounting Principles as at the date of
this agreement; or
(B) ensure that the relevant accounts are prepared in
accordance with the Approved Accounting Principles as at
the date of this agreement.
(f) MANAGEMENT MEETINGS
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The Facility Agent shall be entitled to call for meetings with the
chief executive officer and/or the chief financial officer of the
Parent and/or Antargaz twice in each Financial Year to discuss
financial information delivered under clause 19.10(c) (Financial
statements) on reasonable prior notice and at times reasonably
convenient to the chief executive officer and/or chief financial
officer.
(g) ACCOUNTING REFERENCE DATE AND TAX CONSOLIDATION
(i) The Parent shall not change its Financial Year end without the
prior consent of the Facility Agent. The Parent shall procure
that the financial year end of each of its Subsidiaries is the
same as the Financial Year end (except, in the case of a
Partly Owned Storage and Logistics Company which, as at the
Signing Date, has a different financial year end and, pursuant
to the terms of the shareholders agreement or constitutional
documents relating to that Partly Owned Storage and Logistics
Company, the Group Company which holds a direct equity
interest in that Partly Owned Storage and Logistics Company is
not entitled to procure a change of that existing financial
year end).
(ii) Each Obligor undertakes to procure that the consolidated tax
group status (integration fiscale) of the Parent and each of
its Subsidiaries which fulfils the conditions for inclusion in
the consolidated tax group of the Parent will continue for so
long as any Obligor has any obligation under any Senior
Finance Document.
(h) INVESTIGATIONS
(i) If the Majority Lenders have reasonable grounds for believing
that either:
(A) any accounts or calculations provided under this
agreement are inaccurate or incomplete in any material
respect; or
(B) the Parent is, or may in future be, in breach of any of
its obligations under clause 19.11 (Financial
covenants),
then the Parent will at its own expense, if so required by the
Facility Agent, instruct the Auditors (or other firm of
accountants selected by the Facility Agent) to discuss the
financial position of the Group with the Facility Agent and to
disclose to the Facility Agent and the Lenders (and provide
copies of) such information as the Facility Agent may
reasonably request regarding the financial condition and
business of the Group.
(ii) If, having taken the steps in sub-paragraph (i) above, the
Majority Lenders request, the Facility Agent may instruct the
Auditors (or other firm of accountants selected by the
Facility Agent) to carry out an investigation at the Parent's
expense into the affairs, the financial performance and/or the
accounting and other reporting procedures and standards of the
Group, and the Parent will procure that full co-operation is
given to the Auditors or other firm of accountants so
selected.
(i) OTHER INFORMATION
The Parent will promptly deliver to the Facility Agent for
distribution to the Lenders:
(i) details of any material litigation, arbitration,
administrative or regulatory proceedings relating to it or any
of its Subsidiaries;
70
(ii) details of any material labour dispute affecting it or any of
its Subsidiaries;
(iii) at the same time as it is sent to its creditors, any other
material document or information sent to any class of its
creditors generally (excluding for this purpose creditors
which are Group Companies) including all material documents or
information provided by the Issuer or Finco to the High Yield
Trustee or to the holders of the High Yield Notes;
(iv) any other information relating to the financial condition or
operation of any Group Company which the Facility Agent may
from time to time reasonably request;
(v) details of any breach of the provisions of any Transaction
Document of which it is aware; and
(vi) copies of any notice given or received under the Transaction
Documents.
19.11 FINANCIAL COVENANTS
The Parent undertakes that it will procure that:
(a) LEVERAGE
The ratio of Total Net Debt as at each Testing Date set out in the
table below to EBITDA for the Testing Period ending on that Testing
Date shall not exceed A:1 as at that Testing Date, where A has the
value set out in the table below opposite that Testing Date.
(b) NET INTEREST COVER
The ratio of EBITDA to Net Interest for each Testing Period ending
on a Testing Date set out in the table below shall not be less than
B:1; where B has the value set out in the table below opposite that
Testing Date.
(c) COVENANT RATIOS
The table referred to in clauses 19.11(a) (Leverage) and (b) (Net
interest cover) is the following:
TESTING DATE A B
- ------------------ -------- --------
30 September, 2003 3.50 : 1 3.50 : 1
31 March, 2004 3.50 : 1 3.50 : 1
30 September, 2004 3.50 : 1 3.50 : 1
31 March, 2005 3.25 : 1 3.50 : 1
30 September, 2005 3.25 : 1 3.50 : 1
31 March, 2006 3.25 : 1 3.50 : 1
30 September, 2006 3.25 : 1 3.50 : 1
31 March, 2007 3.00 : 1 4.00 : 1
30 September, 2007 3.00 : 1 4.00 : 1
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TESTING DATE A B
- ------------------ -------- --------
31 March, 2008 3.00 : 1 4.00 : 1
19.12 FINANCIAL DEFINITIONS
For the purposes of clause 19.11 (Financial covenants):
"CASH" means cash at bank credited to an account in the name of a Group
Company with an Eligible Lender and to which that Group Company is
beneficially entitled which is repayable on demand (or within 30 days of
demand) without condition;
"CASH EQUIVALENTS" means marketable debt securities with a maturity of
three months or less and with a short-term debt rating of at least A1 +
granted by Standard & Poor's Ratings Group (a division of The McGraw Hill
Companies, Inc.) or Pl granted by Moody's Investors Services, Inc. to
which a Group Company is beneficially entitled, and which can be realised
by that Group Company without any significant delay;
"EBITDA" means the consolidated profit of the Group for the relevant
Testing Period:
(a) before any deduction of corporation tax or other Taxes on income or
gains;
(b) before any deduction for Interest Payable;
(c) before, with respect only to Testing Periods during which interest
payments were made under the Investor Bonds, any deduction of
interest on the Investor Bonds;
(d) after deducting (to the extent otherwise included) Interest
Receivable;
(e) excluding extraordinary items;
(f) after deducting (to the extent otherwise included) the amount of
profit (or adding back the amount of loss) of:
(i) any Group Company (other than the Parent) which is
attributable to any third party (other than a Group Company)
which is a shareholder in that Group Company; and
(ii) any company or other person which is not a Group Company but
whose profits or losses are taken into account in the
calculation of the consolidated profit of the Group for that
Testing Period;
(g) after adding back or deducting, as the case may be, the amount of
any loss or gain against book value arising on a disposal of any
asset (other than stock disposed of in the ordinary course of
trading) during that Testing Period, to the extent included in
arriving at EBITDA for that Testing Period;
(h) before deducting amortisation of any goodwill or any intangible
assets;
(i) before deducting any depreciation on fixed assets;
(j) before amortisation of any Acquisition Costs; and
(k) after adding back or deducting, as the case may be, the variation of
any provision during that Testing Period which does not have any
cash impact;
72
For the avoidance of doubt, "EBITDA" shall not be reduced by the
Refinancing Costs incurred and paid by the Group during that Testing
Period;
"ELIGIBLE LENDER" means any bank or financial institution with a
short-term debt rating of at least A1 granted by Standard & Poor's Ratings
Group (a division of the McGraw Hill Companies, Inc.) or P1 granted by
Moody's Investors Services, Inc.;
"INTEREST" means interest and amounts in the nature of interest paid or
payable in relation to any Financial Indebtedness including:
(a) the interest element of finance leases;
(b) discount and acceptance fees payable (or deducted) in relation to
any Financial Indebtedness;
(c) fees payable in connection with the issue or maintenance of any
bond, letter of credit, guarantee or other assurance against
financial loss which constitutes Financial Indebtedness and is
issued by a third party on behalf of a Group Company (but excluding
Refinancing Costs);
(d) repayment and prepayment premiums payable or incurred in repaying or
prepaying any Financial Indebtedness; and
(e) commitment, utilisation and non-utilisation fees payable or incurred
in relation to Financial Indebtedness (but excluding Refinancing
Costs);
"INTEREST PAYABLE" means the total of:
(a) Interest accrued (whether or not paid or capitalised) during the
relevant Testing Period; and
(b) the amount of the discount element of any Financial Indebtedness
amortised during that Testing Period,
as an obligation of any Group Company during that period and adjusted for
amounts payable and receivable under Derivative Instruments entered into
for the purposes of managing or hedging interest rate risk;
"INTEREST RECEIVABLE" means the amount of Interest accrued (including
interest and/or dividends received by the Group during the relevant
Testing Period under Cash Equivalent investments) due to Group Companies
(other than by other Group Companies) during the relevant Testing Period
which is freely available to meet the Group's payment obligations;
"NET INTEREST" means Interest Payable less Interest Receivable during the
relevant Testing Period;
"TESTING DATE" means the date specified in the relevant table as the date
as at (or to) which a particular financial ratio is being tested;
"TESTING PERIOD" means, subject to clause 19.14 (Calculation adjustments)
each period which corresponds to the annual accounting reference period of
the Parent or two consecutive Accounting Half-Years and ending on or about
a Testing Date;
73
"TOTAL NET DEBT" means, at any time, the aggregate outstanding principal
or capital amount of all Financial Indebtedness of the Group calculated on
a consolidated basis less Cash and Cash Equivalents owned by Group
Companies, except that:
(a) in the case of any finance lease only the capitalised value of that
finance lease (as determined in accordance with the Approved
Accounting Principles) shall be included;
(b) in the case of any guarantee referred to in the definition of
Financial Indebtedness in clause 1.1 (Definitions), the amount of
that guarantee shall not be included, to the extent it relates to
(a) indebtedness of another Group Company already included in the
calculation of Total Net Debt, or (b) bank guarantees (cautions
bancaires) issued to French tax authorities to secure the
liabilities of any Group Company under tax reassessments in respect
of French professional tax (taxe professionnelle), to the extent
that such liabilities are fully guaranteed by the Vendors under the
provisions of the Warranty Agreement;
(c) any Financial Indebtedness arising under any Private Equity
Contribution shall be excluded; and
(d) any amount drawn under the Revolving Facility shall be excluded.
19.13 CALCULATION
(a) The covenants contained in clause 19.11 (Financial covenants) will
be tested by reference to the Annual Accounts and the Half-Year
Accounts for the relevant Testing Period.
(b) If the Annual Accounts are not available when any covenant referred
to in clause 19.13(a) is tested, but when those Annual Accounts
become available, they show that the figures in any relevant
Half-Year Accounts utilised for any such calculation cannot have
been substantially accurate, the Facility Agent may require such
adjustments to the calculations made or to be made which it, in its
sole discretion, considers appropriate to rectify that inaccuracy
and compliance with the covenants in clause 19.11 (Financial
covenants) will be determined by reference to those adjusted
figures.
(c) The components of each definition used in clause 19.11 (Financial
covenants) will be calculated in accordance with the Approved
Accounting Principles, as varied by this agreement.
(d) For the avoidance of doubt, for the purpose of calculating the
ratios referred to in clause 19.11 (Financial Covenants), each
component of such ratios shall not double-count the same amount in
the same calculation.
19.14 CALCULATION ADJUSTMENTS
For the purpose of determining compliance with the financial covenants in
clause 19.11(a) (Leverage) and 19.11(b) (Net interest cover) if the Group
acquires a company or companies (having obtained any necessary consent
under this agreement to do so), until the first Testing Date which falls
more than 12 months after the relevant company or companies became
Subsidiaries of the Parent, the results of such company or companies will
be deemed included with those of the rest of the Group for the full
duration of the relevant Testing Period as if such company or companies
had become a Group Company at the commencement of the Testing Period. Any
necessary aggregation of their results will be confirmed by the Auditors
and will not include any synergy benefits expected (save as provided in
the definition of Permitted Acquisition in clause 1.1 (Definitions)) to be
achieved as a result of the acquisition of such company or companies.
74
20. EVENTS OF DEFAULT
20.1 LIST OF EVENTS
Each of the events set out in this clause 20.1 constitutes an Event of
Default, whether or not the occurrence of the event concerned is outside
the control of any Group Company.
(a) PAYMENT DEFAULT
Any Obligor fails to pay within five Business Days' of the due date
any amount payable by it under any Senior Finance Document at the
place at which and in the currency in which it is expressed to be
payable.
(b) BREACH OF OTHER OBLIGATIONS
(i) Any Obligor fails to comply with any of its obligations under
clauses 19.3 (Disposals and security undertakings) to 19.5
(Financing arrangement undertakings) (inclusive) (except
clause 19.5(e)) or 19.11 (Financial covenants) (whether or not
the relevant obligation is enforceable against that Group
Company).
(ii) Any Group Company fails to comply with any of its obligations
under any Senior Finance Document (whether or not the relevant
obligation is enforceable against that Group Company), other
than those specified in clause 20.1(a) (Payment default) or
clause 20.1(b)(i) and, if that failure is in the opinion of
the Facility Agent capable of remedy, it is not remedied
within 15 Business Days of the earlier of:
(A) the Facility Agent notifying the Parent of that default;
and
(B) any Group Company becoming aware of the relevant matter.
(c) MISREPRESENTATION
Any representation, warranty or statement which is made by any Group
Company in any Senior Finance Document or is contained in any
certificate, statement or notice provided under or in connection
with any Senior Finance Document is incorrect in any material
respect when made (or when deemed to be made or repeated) and, if
the circumstances giving rise to that default are in the opinion of
the Facility Agent capable of remedy, they are not remedied within
15 Business Days of the earlier of:
(i) the Facility Agent notifying the Parent of that default; and
(ii) any Group Company becoming aware of the relevant matter.
(d) INVALIDITY AND UNLAWFULNESS
(i) Any provision of any Senior Finance Document is or becomes
invalid or unenforceable for any reason or is repudiated or
the validity or enforceability of any provision of any Senior
Finance Document is contested by any person or any party to
any Senior Finance Document (other than a Finance Party)
denies the existence of any liability or obligation on its
part under any Senior Finance Document.
(ii) It is or becomes unlawful under any applicable jurisdiction
for any Group Company to perform any of its obligations under
any Senior Finance Document.
75
(iii) Any act, condition or thing required to be done, fulfilled or
performed in order to:
(A) enable any Group Company lawfully to enter into,
exercise its rights under and perform the obligations
expressed to be assumed by it under any Senior Finance
Document, any High Yield Document and any Intra-Group
Bond Document to which it is party;
(B) ensure that the obligations expressed to be assumed by
any Group Company under any Senior Finance Document, any
High Yield Document and any Intra-Group Bond Document to
which it is party are legal, valid and binding;
(C) make each any Senior Finance Document, any High Yield
Document and any Intra-Group Bond Document admissible in
evidence in the courts of France or the jurisdiction in
which any Group Company is incorporated; and
(D) create the security constituted by the Security
Documents to which any Group Company is party,
is not done, fulfilled or performed.
(e) INSOLVENCY
(i) Any Group Company stops or suspends or threatens, or announces
an intention to stop or suspend, payment of its debts
(including cessation des paiements, whether pursuant to
article L621-1 of the New French Commercial Code or
otherwise).
(ii) Any Group Company is, for the purpose of any applicable law,
deemed to be unable, or admits its inability, to pay its debts
as they fall due or becomes insolvent or a moratorium (sursis
de paiements) is declared in relation to any indebtedness of
any Group Company.
(f) RECEIVERSHIP AND ADMINISTRATION
(i) Any encumbrancer takes possession of, or a receiver or
administrator or similar officer (a conciliateur or an
administrateur provisoire or a mandataire ad hoc) is appointed
over or in relation to, all or any part of the assets of any
Group Company.
(ii) A petition is presented, a meeting is convened, an application
is made or any other step is taken for the purpose of
appointing an administrator or receiver or other similar
officer (a conciliateur or an administrateur provisoire or a
mandataire ad hoc) of, or for the making of an administration
order in relation to any Group Company, in each case unless
such proceedings are discharged or stayed within 15 days.
(g) COMPOSITIONS AND ARRANGEMENTS
(i) Any Group Company convenes a meeting of its creditors
generally or proposes or makes any arrangement or composition
with, or any assignment for the benefit of, its creditors
generally.
(ii) Any Group Company proposes or enters into any negotiations for
or in connection with the rescheduling, restructuring or
re-adjustment of any indebtedness by reason of, or with a view
to avoiding, financial difficulties.
(h) WINDING UP
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(i) Any meeting of any Group Company is convened for the purpose
of considering any resolution for (or to petition for) its
winding up (liquidation judiciaire or amiable) or passes such
a resolution (other than as a result of a permitted
amalgamation).
(ii) A petition is presented for the winding up of any Group
Company which is not discharged or stayed within 21 days.
(iii) An order is made for the winding up of any Group Company.
(i) ATTACHMENT OR PROCESS
A creditor attaches or takes possession of (mesure de saisie) or a
distress, execution, (execution forcee), sequestration or other
process is levied or enforced upon or sued out against all or any
part of the assets the aggregate value of which exceeds EUR
1,525,000 (or its equivalent in other currencies) of any Group
Company in each case unless such proceedings are discharged or
stayed within 21 days.
(j) SUSPENSION OF PAYMENTS
Any order is made, any resolution is passed or any other action is
taken for the suspension of payments, protection from creditors or
bankruptcy of any Group Company.
(k) SIMILAR EVENTS ELSEWHERE
There occurs in relation to any Material Company or any of its
assets in any country or territory in which it is incorporated or
carries on business or to the jurisdiction of whose courts it or any
of its assets is subject any event which appears to the Facility
Agent to correspond in that country or territory with any of those
mentioned in clauses 20.1(e) (Insolvency) to 20.1(j) (Suspension of
payments) (inclusive).
(l) CESSATION OF BUSINESS
The Parent or any Material Company ceases, or threatens or proposes
to cease to carry on all or a substantial part of its business
(cessation totale ou partielle de l'entreprise).
(m) COMPULSORY ACQUISITION
All or any part of the assets of the Parent or any Material Company
are seized, nationalised, expropriated or compulsorily acquired by,
or by the order of, any central or local governmental authority in
relation to which full market value compensation is not paid.
(n) SECURITY INTERESTS
Any Security Interest affecting the business, undertaking or any of
the assets of the Parent or any Material Company and securing
indebtedness exceeding EUR 775,000 (or its equivalent in other
currencies) in aggregate becomes enforceable and steps are taken to
enforce the same which are not withdrawn or stayed within 30 days.
77
(o) CROSS DEFAULT
(i) Any Financial Indebtedness of any Group Company or Group
Companies exceeding EUR 1,525,000 (or its equivalent in other
currencies) in aggregate:
(A) is not paid when due or within any originally applicable
grace period in any agreement relating to that Financial
Indebtedness; or
(B) becomes due and payable (or capable of being declared
due and payable) before its normal maturity or is placed
on demand (or any commitment for any such indebtedness
is cancelled or suspended) by reason of a default or
event of default (however described).
(ii) Any event of default (howsoever described) occurs under any of
the High Yield Documents or Intra-Group Bond Documents.
(p) LITIGATION
Any litigation, arbitration or administrative proceeding is
commenced by or against any Group Company which is reasonably likely
to be resolved against the relevant Group Company and, if so
resolved, could reasonably be expected to have a Material Adverse
Effect.
(q) INTERCREDITOR BREACH
Any Obligor or an Intra-Group Creditor (as defined in the
Intercreditor Agreement) fails to comply with its obligations under
the Intercreditor Agreement or the Intercreditor Agreement ceases to
be binding upon any such party for whatever reason, in each case in
a manner which could reasonably be expected to prejudice the
interests of the Finance Parties under the Senior Finance Documents.
(r) REGULATORY PROCEEDINGS
Any regulatory or other proceedings are instigated by any
competition or similar authority (including the European Commission)
as a result of the Transaction Documents having been entered into or
implemented and the same has, or could reasonably be expected to
have, a Material Adverse Effect.
(s) AUDITORS' QUALIFICATION
The Auditors qualify their report on any Annual Accounts in any
manner which could reasonably be expected to prejudice the interests
of the Finance Parties under the Senior Finance Documents.
(t) MATERIAL CONTRACTS
(i) Any Material Contract is terminated or otherwise ceases to be
in full force and effect (other than on expiry under its
terms, as in force at the date of this agreement).
(ii) Any amendment is made to any Material Contract without the
prior consent of the Majority Lenders which could reasonably
be expected to be materially adverse to the interests of the
Finance Parties under the Senior Finance Documents.
78
(iii) Any Group Company breaches any term of or repudiates any of
its obligations under any Material Contract the result of
which could reasonably be expected to be materially adverse to
the interests of the Finance Parties under the Senior Finance
Documents.
(u) TAX CONSOLIDATION
The Group loses, for whatever reason (including as a result of any
change of law or interpretation in law) the benefit of the tax
consolidation regime (integration fiscale) for the Group, unless,
within 30 days of the occurrence of the relevant event causing the
loss of the tax consolidation regime, the Parent has provided
written details to the Facility Agent of a solution to that loss
which is satisfactory to the Majority Lenders (acting reasonably).
(v) MATERIAL ADVERSE EFFECT
At any time there occurs any event or default not mentioned in any
of the provisions of this clause 20.1 which, in the opinion of the
Majority Lenders, could reasonably be expected to have a Material
Adverse Effect.
20.2 CANCELLATION AND REPAYMENT
Subject to Clause 20.3 (Certain Funds Period), at any time after the
occurrence of an Event of Default (and for so long as it is continuing),
the Facility Agent may, and will if so directed by the Majority Lenders,
by notice to the Parent do all or any of the following, in addition and
without prejudice to any other rights or remedies which it or any other
Finance Party may have under any other Senior Finance Document:
(a) terminate the availability of the Facilities, whereupon the
Facilities shall cease to be available for drawing, the undrawn
portion of the Commitments of each of the Lenders shall be cancelled
and no Lender shall be under any further obligation to make Advances
or issue Bank Guarantees; and/or
(b) declare all or any Advances, accrued interest on those Advances and
any other amounts then payable under any Senior Finance Document to
be immediately due and payable, whereupon those amounts shall become
so due and payable; and/or
(c) declare all or any Advances to be payable on demand, whereupon those
Advances shall become payable on demand; and/or
(d) require the provision of cash cover in relation to all or any
outstanding Contingent Liabilities, whereupon each Borrower shall
immediately provide cash cover in an amount equal to the total
Contingent Liability of the Lenders under all Bank Guarantees issued
for the account of the Borrowers.
20.3 CERTAIN FUNDS PERIOD
Once the conditions precedent under clause 4.1 (Initial conditions
precedent) have been satisfied, the Lenders shall only be entitled to
decline to make available any Advance or to exercise any rights of
rescission, cancellation or termination, whether pursuant to Clause 20.2
(Cancellation and Repayment) or otherwise or any rights of set-off or
counterclaim under the Finance Documents in respect of any Advance the
purpose of which is to fund the Refinancing during the Certain Funds
Period, by reason of:
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(a) any Sale, Listing or Change of Control (each as described in clause
11.3 (Sale, Change of Control, Listing) occurs;
(b) an Obligor cancelling, rescinding or purporting to rescind the
Facilities (including, without limitation, under clause 11.8
(Cancellation of Term Facility) or 11.9 (Cancellation of Revolving
Facility)) in the case of any cancellation to the extent of the
amount so cancelled;
(c) any breach of the representations and warranties contained in
clauses 18.2 (Incorporation) (to the extent that the breach of such
clause 18.2 (Incorporation) relates to an Obligor), 18.3 (Power and
capacity) or 18.4 (Authorisation);
(d) any breach of the undertaking contained in clauses 19.2(c)
(Amalgamations), 19.2(h) (Pari-passu ranking), 19.4 (Acquisitions
and investment undertakings) (to the extent that such breach of that
clause could reasonably be expected to have a Material Adverse
Effect), 19.5(a) (Borrowings) (to the extent that such breach of
that clause could reasonably be expected to have a Material Adverse
Effect), 19.5(b) (Guarantees) (to the extent that such breach of
that clause could reasonably be expected to have a Material Adverse
Effect), 19.5(c) (Loans) (to the extent that such breach of that
clause could reasonably be expected to have a Material Adverse
Effect), 19.6(e) (Ring Fencing of Finco), 19.8(a) (Changes to
Acquisition Documents and Material Contracts), 19.8(c) (Changes to
Equity Documents), 19.8(d) (Changes to High Yield Documents and
Intra-Group Documents) or 19.9 (Share capital, dividend and other
junior financing arrangement undertakings),
(e) any of the Events of Default referred to in clause 20.1(d)
(Invalidity and unlawfulness) occurring and is continuing by reason
of circumstances relating to the Parent only or as a result of a
change of any law or regulation occurring during the Certain Funds
Period;
(f) any of the Events of Default referred to in clauses 20.1(e)
(Insolvency) to 20.1(k) (Similar events elsewhere) occurring and is
continuing;
(g) any of the events described in clause 14.2 (Illegality) occurs as a
result of a change of any law or regulation occurring during the
Certain Funds Period; or
(h) the Event of Default referred to in clause 20.1(v) (Material Adverse
Effect) occurring and is continuing on 30 June 2003 and the Facility
Agent has notified the Parent of the termination of the Facility on
that ground pursuant to clause 20.2 (Cancellation and repayment) by
facsimile before 10:00 a.m. on 30 June 2003.
21. THE AGENTS AND THE OTHER FINANCE PARTIES
21.1 AGENTS' APPOINTMENT
(a) Each Lender:
(i) appoints Credit Lyonnais as Facility Agent to act as its agent
under and in connection with the Senior Finance Documents and
as Security Agent to act as its security agent for the
purposes of the Security Documents; and
(ii) irrevocably authorises each Agent for and on its behalf to
exercise the rights, powers and discretions which are
specifically delegated to it by the terms of the Senior
Finance Documents, together with all rights, powers and
discretions which are incidental thereto and to give a good
discharge for any monies payable under the Senior Finance
Documents.
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(b) Each Agent will act solely as agent for the Lenders in carrying out
its functions as agent under the Senior Finance Documents and will
exercise the same care as it would in dealing with a credit for its
own account.
(c) The relationship between the Lenders and each Agent is that of
principal and agent only. No Agent shall have, nor be deemed to
have, assumed any obligations to, or trust or fiduciary relationship
with, the other Finance Parties or any Obligor, other than those for
which specific provision is made by the Senior Finance Documents.
21.2 AGENTS' DUTIES
Each Agent shall:
(a) send to each Lender details of each communication delivered to the
Agent by an Obligor for that Lender under any Senior Finance
Document as soon as reasonably practicable after receipt;
(b) subject to those provisions of this agreement which require the
consent of all the Lenders, act in accordance with any instructions
from the Majority Lenders or, if so instructed by the Majority
Lenders, refrain from exercising a right, power or discretion vested
in it under any Senior Finance Document;
(c) have only those duties, obligations and responsibilities expressly
specified in the Senior Finance Documents; and
(d) without prejudice to clause 21.6(c) (Communications and
information), promptly notify each Lender:
(i) of any Default which occurs under clause 20.1(a) (Payment
default); and
(ii) if the Agent receives notice from an Obligor referring to this
agreement, describing a Default and stating that the
circumstance described is a Default.
21.3 AGENTS' RIGHTS
Each Agent may:
(a) perform any of its duties, obligations and responsibilities under
the Senior Finance Documents by or through its personnel, delegates
or agents (on the basis that each Agent may extend the benefit of
any indemnity received by it under this agreement to its personnel,
delegates or agents);
(b) except as expressly provided to the contrary in any Senior Finance
Document, refrain from exercising any right, power or discretion
vested in it under the Senior Finance Documents until it has
received instructions from the Majority Lenders or, where relevant,
all the Lenders;
(c) unless it has received notice to the contrary, treat the Lender
which makes available any portion of a Drawing as the person
entitled to repayment of that portion;
(d) refrain from doing anything which would or might in its opinion be
contrary to any law, regulation or judgement of any court of any
jurisdiction or otherwise render it liable to any person and may do
anything which is in its opinion necessary to comply with any such
law, regulation or judgement;
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(e) assume that no Default has occurred, unless an officer of that Agent
while active on the account of the Parent acquires actual knowledge
to the contrary;
(f) refrain from taking any step (or further step) to protect or enforce
the rights of any Lender under any Senior Finance Document until it
has been indemnified and/or secured to its satisfaction against all
losses, (including legal fees) which it would or might sustain or
incur as a result;
(g) rely on any communication or document believed by it to be genuine
and correct and to have been communicated or signed by the person to
whom it purports to be communicated or by whom it purports to be
signed;
(h) rely as to any matter of fact which might reasonably be expected to
be within the knowledge of any Group Company in a statement by or on
behalf of that Group Company;
(i) obtain and pay for any legal or other expert advice or services
which may seem necessary or desirable to it and rely on any such
advice;
(j) accept without enquiry any title which an Obligor may have to any
asset intended to be the subject of the security created by the
Security Documents; and
(k) hold or deposit any title deeds, Security Documents or any other
documents in connection with any of the assets charged by the
Security Documents with any banker or banking company or any company
whose business includes undertaking the safe custody of deeds or
documents or with any lawyer or firm of lawyers and it shall not be
responsible for or be required to insure against any loss incurred
in connection with any such holding or deposit and it may pay all
amounts required to be paid on account or in relation to any such
deposit.
21.4 EXONERATION OF THE ARRANGER AND THE AGENTS
None of the Arranger, the Agents or any of their respective personnel or
agents shall be:
(a) responsible for the adequacy, accuracy or completeness of any
representation, warranty, statement or information in the
Syndication Memorandum, any Senior Finance Document or any notice or
other document delivered under any Senior Finance Document;
(b) responsible for the execution, delivery, validity, legality,
adequacy, enforceability or admissibility in evidence of any Senior
Finance Document;
(c) obliged to enquire as to the occurrence or continuation of a Default
or as to the accuracy or completeness of any representation or
warranty made by any Obligor under any Senior Finance Document;
(d) responsible for any failure of any Obligor or any of the Lenders
duly and punctually to observe and perform their respective
obligations under any Senior Finance Document;
(e) responsible for the consequences of relying on the advice of any
professional advisers selected by any of them in connection with any
Senior Finance Document;
(f) liable for acting (or refraining from acting) in what it believes to
be in the best interests of the Lenders in circumstances where it
has been unable, or it is not practicable, to obtain the
instructions of the Lenders or the Majority Lenders (as the case may
be); or
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(g) liable for anything done or not done by it under or in connection
with any Senior Finance Document, save in the case of its own gross
negligence or wilful misconduct or by a material breach of any of
its Obligations under the Senior Finance Documents.
21.5 THE ARRANGER AND THE AGENTS INDIVIDUALLY
(a) If it is a Lender, the Arranger and each of the Agents shall have
the same rights and powers under the Senior Finance Documents as any
other Lender and may exercise those rights and powers as if it were
not also acting as an Arranger or an Agent.
(b) The Arranger and the Agents may:
(i) retain for its own benefit and without liability to account
any fee or other amount receivable by it for its own account;
and
(ii) accept deposits from, lend money to, provide any advisory,
trust or other services to or engage in any kind of banking or
other business with any party to this agreement or any
subsidiary of any party (and, in each case, may do so without
liability to account).
21.6 COMMUNICATIONS AND INFORMATION
(a) All communications to an Obligor in connection with the Senior
Finance Documents are to be made by or through the Facility Agent.
Each Finance Party will notify the Facility Agent of, and provide
the Facility Agent with a copy of, any communication between that
Finance Party, an Obligor or any other Finance Party on any matter
concerning the Facilities or the Senior Finance Documents.
(b) No Agent will be obliged to transmit to any other Finance Party any
information relating to any party to any Senior Finance Document
which that Agent may have acquired otherwise than in connection with
the Facilities or the Senior Finance Documents. Notwithstanding
anything to the contrary expressed or implied in any Senior Finance
Document, no Agent shall, as between itself and the other Finance
Parties, be bound to disclose to any other Finance Party or other
person any information, disclosure of which might in the opinion of
that Agent result in a breach of any law or regulation or be
otherwise actionable at the suit of any person or any information
supplied by any Group Company to any Agent which is identified by
such Group Company at the time of supply as being unpublished,
confidential or price sensitive information relating to a proposed
transaction by a Group Company and supplied solely for the purpose
of evaluating in consultation with the relevant Agent whether such
transaction might require a waiver or amendment to any of the
provisions of the Senior Finance Documents.
(c) In acting as agent for the Lenders, each Agent's banking division
will be treated as a separate entity from any other of its divisions
(or similar unit of that Agent in any subsequent re-organisation) or
subsidiaries (the "OTHER DIVISIONS") and, if the relevant Agent acts
for any Group Company in a corporate finance or other advisory
capacity ("ADVISORY CAPACITY"), any information given by any Group
Company to one of the Other Divisions is to be treated as
confidential and will not be available to the Finance Parties
without the consent of the Parent, except that:
(i) the consent of the Parent will not be required in relation to
any information which the relevant Agent in its discretion
determines relates to a Default or in relation to which the
Lenders have given a confidentiality undertaking in a form
satisfactory to that Agent and the relevant Group Company
(acting reasonably); and
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(ii) if representatives or employees of the relevant Agent receive
information in relation to a Default whilst acting in an
Advisory Capacity, they will not be obliged to disclose that
information to representatives or employees of that Agent in
their capacity as agent bank or security agent under this
agreement or to any Lender, if to do so would breach any rule
or regulation or fiduciary duty imposed upon those persons.
21.7 NON-RELIANCE ON THE ARRANGER AND THE AGENTS
Each Lender confirms that it is (and will at all times continue to be)
solely responsible for making its own independent investigation and
appraisal of the business, operations, financial condition,
creditworthiness, status and affairs of each Group Company and has not
relied, and will not at any time rely, on the Arranger or any Agent:
(a) to provide it with any information relating to the business,
operations, financial condition, creditworthiness, status and
affairs of any Group Company, whether coming into its possession
before or after the making of any Advance, except as specifically
provided otherwise in this agreement; or
(b) to check or enquire into the adequacy, accuracy or completeness of
any information provided by any Group Company under or in connection
with any Senior Finance Document (whether or not that information
has been or is at any time circulated to it by the Arranger or an
Agent), including that contained in the Syndication Memorandum; or
(c) to assess or keep under review the business, operations, financial
condition, creditworthiness, status or affairs of any Group Company.
21.8 AGENTS' INDEMNITY
(a) Each Lender shall on demand indemnify each Agent (in proportion to
that Lender's participation in the Drawings (or the Total
Commitments if there are no Drawings outstanding) at the relevant
time) against any loss incurred by the relevant Agent in complying
with any instructions from the Lenders or the Majority Lenders (as
the case may be) or otherwise sustained or incurred in connection
with the Senior Finance Documents or its duties, obligations and
responsibilities under the Senior Finance Documents, except to the
extent that it is incurred as a result of the gross negligence or
wilful misconduct of the relevant Agent or any of its personnel.
(b) The provisions of clause 21.8(a) are without prejudice to any
obligations of the Obligors to indemnify the Agents under the Senior
Finance Documents.
21.9 TERMINATION AND RESIGNATION OF AGENCY
(a) An Agent (a "RETIRING AGENT") may resign its appointment at any time
by giving notice to the Lenders and the Parent.
(b) A successor Agent (a "SUCCESSOR AGENT") shall be selected:
(i) by the Retiring Agent nominating one of its Affiliates
following consultation with the Parent as Successor Agent in
its notice of resignation; or
(ii) if the Retiring Agent makes no such nomination, by the
Majority Lenders nominating a Lender acting through an office
in France as Successor Agent (following consultation with the
Parent); or
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(iii) if the Majority Lenders have failed to nominate a Successor
Agent within 30 days of the date of the Retiring Agent's
notice of resignation, by the Retiring Agent (following
consultation with the Parent) nominating a financial
institution of good standing acting through an office in
France to be the Successor Agent.
(c) The Majority Lenders may at any time with the prior consent of the
Parent, such consent not to be unreasonably withheld or delayed, by
30 days' prior notice to the relevant Agent and the Parent terminate
the appointment of an Agent and appoint a Successor Agent.
(d) The resignation of the Retiring Agent and the appointment of the
Successor Agent will become effective only upon the Successor Agent
accepting its appointment as Agent (and, in the case of the Security
Agent's resignation, upon the execution of all agreements and
documents necessary to substitute its successor as holder of the
security comprised in the Security Documents), at which time:
(i) the Successor Agent will become bound by all the obligations
of the Facility Agent or Security Agent (as the case may be)
and become entitled to all the rights, privileges, powers,
authorities and discretions of that Agent under the Senior
Finance Documents;
(ii) the agency of the Retiring Agent will terminate (but without
prejudice to any liabilities which the Retiring Agent may have
incurred prior to the termination of its agency); and
(iii) the Retiring Agent will be discharged from any further
liability or obligation under or in connection with the Senior
Finance Documents (except that the Retiring Agent shall pay to
the Successor Agent a pro rata proportion of the agency fee
referred to in clause 15.2 (Agency fee) for the 12 month
period in relation to which that agency fee was most recently
paid).
(e) The Retiring Agent will co-operate with the Successor Agent in order
to ensure that its functions are transferred to the Successor Agent
without disruption to the service provided to the Parent and the
Lenders and will, as soon as practicable following the Successor
Agent's appointment, make available to the Successor Agent the
documents and records which have been maintained in connection with
the Senior Finance Documents in order that the Successor Agent is
able to discharge its functions.
(f) The provisions of this agreement will continue in effect for the
benefit of any Retiring Agent in relation to any actions taken or
omitted to be taken by it or any event occurring before the
termination of its agency.
21.10 ROLE OF THE SECURITY AGENT
The Security Agent shall hold the benefit of the Security Documents as
agent for itself and the other Finance Parties and will apply all payments
and other benefits received by it under the Security Documents in
accordance with the provisions of the Intercreditor Agreement.
21.11 PAYMENTS TO FINANCE PARTIES
(a) Each Agent will account to each other Finance Party for its due
proportions of all amounts received by that Agent for that Finance
Party, whether by way of repayment of principal or payment of
interest, commitment commission, fees or otherwise.
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(b) Each Agent may retain for its own use and benefit, and will not be
liable to account to any other Finance Party for all or any part of,
any amounts received by way of agency or arrangement fee or by way
of reimbursement of expenses incurred by it.
21.12 CHANGE OF OFFICE OF AGENT
An Agent may at any time in its sole discretion by notice to the Parent
and each other Finance Party designate a different office in France from
which its duties as the relevant Agent will be performed from the date of
notification.
22. PRO RATA PAYMENTS
22.1 RECOVERIES
If any amount owing by any Obligor under any Senior Finance Document to a
Lender (the "RECOVERING LENDER") is discharged by payment, set-off or any
other manner other than through the Facility Agent in accordance with
clause 12 (Payments) (that amount being referred to in this clause 22.1 as
a "RECOVERY") then:
(a) within two Business Days of receipt of the Recovery, the Recovering
Lender shall pay to the Facility Agent an amount equal (or
equivalent) to that Recovery;
(b) the Facility Agent shall treat that payment as if it was part of the
payment to be made by the relevant Obligor to the Lenders rateably
in accordance with their respective Commitments; and
(c) (except for any receipt by the Recovering Lender as a result of the
operation of clause 23.1(b)) as between the relevant Obligor and the
Recovering Lender, the Recovery shall be treated as not having been
paid.
22.2 NOTIFICATION OF RECOVERY
Each Lender will notify the Facility Agent as soon as reasonably
practicable of any Recovery by that Lender, other than by payment through
the Facility Agent. If any Recovery subsequently has to be wholly or
partly refunded by the Recovering Lender which paid an amount equal to
that Recovery to the Facility Agent under clause 22.1(a) (Recoveries),
each Lender to which any part of that amount was distributed will, on
request from the Recovering Lender, repay to the Recovering Lender that
Lender's pro rata share of the amount which has to be refunded by the
Recovering Lender.
22.3 INFORMATION
Each Lender will on request supply to the Facility Agent any information
which the Facility Agent may from time to time request for the purpose of
this clause 22.
22.4 EXCEPTIONS TO SHARING OF RECOVERIES
Notwithstanding the foregoing provisions of this clause 22.1, no
Recovering Lender will be obliged to share any Recovery which it receives
as a result of legal proceedings taken by it to recover any amounts owing
to it under the Senior Finance Documents with any other party which has a
legal right to, but does not, either join in those proceedings or commence
and diligently pursue separate proceedings to enforce its rights in the
same or another court (unless the proceedings instituted by the Recovering
Lender are instituted by it without prior notice having been given to that
other party through the Facility Agent).
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22.5 SEVERAL OBLIGATIONS
Failure by any Recovering Lender to comply with any of the provisions of
this clause 22 will not release any other Recovering Lender from any of
its obligations or liabilities under this clause 22.
22.6 OBTAINING CONSENTS
Each party to this agreement shall take all steps required of it under
clause 22.1 (Recoveries) and use its reasonable endeavours to obtain any
consents or authorisations which may be required in relation to any
payment to be made by it under this clause 22.
22.7 NO SECURITY
The provisions of this clause 22 shall not, and shall not be construed so
as to, constitute a charge by any Lender over all or any part of any
amount received or recovered by it under any of the circumstances
mentioned in this clause 22.
22.8 ANCILLARY AND HEDGING LENDERS
This clause 22 shall not apply to any Recovery by a Lender in its capacity
as a Hedging Lender.
23. SET-OFF
23.1 SET-OFF RIGHTS
Any Finance Party may at any time after an Event of Default has occurred
(without notice to the relevant Obligor):
(a) set-off or otherwise apply amounts standing to the credit of any
Obligor's accounts with that Finance Party; and
(b) set-off any other obligations (then due for performance) owed by
that Finance Party to the relevant Obligor,
against any liability of the relevant Obligor to the relevant Finance
Party under the Senior Finance Documents which is due but unpaid.
23.2 DIFFERENT CURRENCIES
A Finance Party may exercise its rights under clause 23.1 (Set-off rights)
notwithstanding that the amounts concerned may be expressed in different
currencies and each Finance Party is authorised to effect any necessary
conversions at a market rate of exchange selected by it.
24. NOTICES
24.1 MODE OF SERVICE
(a) Except as specifically provided otherwise in this agreement, any
notice, demand, consent, agreement or other communication (a
"NOTICE") to be served under or in connection with any Senior
Finance Document will be in writing and will be made by letter or by
facsimile transmission to the party to be served.
(b) The address and facsimile number of each party to this agreement for
the purposes of clause 24.1(a) are:
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(i) the address and facsimile number shown immediately after its
name on the signature pages of this agreement (in the case of
any person who is a party as at the date of this agreement);
(ii) the address and facsimile number notified by that party for
this purpose to the Facility Agent on or before the date it
becomes a party to this agreement (in the case of any person
who becomes a party after the date of this agreement); or
(iii) any other address and facsimile number notified by that party
for this purpose to the Facility Agent by not less than five
Business Days' notice.
(c) Any Notice to be served by any Obligor on a Finance Party will be
effective only if it is expressly marked for the attention of the
department or officer (if any) specified in conjunction with the
relevant address and facsimile number referred to in clause 24.1(b).
24.2 DEEMED SERVICE
(a) Subject to clause 24.2(b), a Notice will be deemed to be given as
follows:
(i) if by letter, when delivered personally or on actual receipt;
and
(ii) if by facsimile, when delivered.
(b) A Notice given in accordance with clause 24.2(a) but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given on the next working day in that place.
24.3 LANGUAGE
(a) Any Notice must be in English.
(b) All other documents provided under or in connection with any Senior
Finance Document must be:
(i) in English; or
(ii) if not in English, accompanied by a certified English
translation in which case, the English translation will
prevail unless the document is a constitutional, statutory or
other official document.
25. CONFIDENTIALITY
Subject to clause 26.8 (Disclosure of information), the parties will keep
the Senior Finance Documents, the Syndication Memorandum and their subject
matter and any matter relating thereto (including all details relating to
the structure and financing of the Acquisition) confidential, except to
the extent that they are required by law or regulation to disclose the
same. Each Finance Party agrees with each Obligor to hold confidential all
information which it acquires under or in connection with the Senior
Finance Documents, except to the extent it is required by law or
regulation to disclose it or it comes into the public domain (otherwise
than as a result of a breach of this clause 25). A Finance Party may,
however, disclose any such information to its auditors, legal advisers or
other professional advisers (the "ADVISERS") for any purpose connected
with the Senior Finance Documents, provided that the relevant Finance
Party takes reasonable steps to procure that each Adviser maintains the
confidentiality of that information.
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26. CHANGES TO PARTIES
26.1 ASSIGNMENT BY THE OBLIGORS
No Obligor may assign or transfer all or any part of its rights, benefits
or obligations under any Senior Finance Document.
26.2 ASSIGNMENTS AND TRANSFERS BY LENDERS
(a) A Lender (in this capacity the "TRANSFEROR") may, subject to Clause
26.2(b) after prior consultation with the Parent at any time assign
any of its rights under any Senior Finance Document or transfer any
of its rights and obligations under any Senior Finance Document to
any person (a "TRANSFEREE"), provided that:
(i) in the case of an assignment or transfer by a Lender of part
(but not all) of its Commitments to a Transferee which is not,
at the time of the assignment or transfer, an existing Lender,
the aggregate amount of the Commitments of that Lender subject
to that assignment or transfer is at least EUR 2,500,000;
(ii) the Transferee has executed a Creditor Accession Agreement;
(iii) in the case of an assignment, it is made in accordance with
clause 26.3 (Assignments by Lenders);
(iv) in the case of a transfer, it is made in accordance with
clause 26.4 (Transfers by Lenders); and
(v) in the case of a transfer of the Revolving Facility, each
Issuing Lender has approved the Transferee (such approval not
to be unreasonably withheld or delayed).
(b) The Parent (for itself and as agent for the existing Obligors) will
execute or procure that there are executed such documents and
agreements as are necessary to effect a transfer of rights or
obligations to a Transferee under this agreement.
(c) Subject to clause 3.4(b) (Syndication), nothing in this agreement
will restrict the ability of a Lender to sub-participate or
sub-contract any of its obligations under any Senior Finance
Document if that Lender remains liable under that Senior Finance
Document in relation to those obligations. A Lender shall notify the
Parent of any such sub-participation or sub-contracting by it.
(d) The Transferee shall, under its own responsibility and at its own
costs, notify the assignment of rights made in connection with the
assignment or transfer to the Obligors through a bailiff in
accordance with Article 1690 of the French Code Civil.
26.3 ASSIGNMENTS BY LENDERS
(a) If any Lender wishes to assign all or any of its rights and benefits
under the Senior Finance Documents, the relevant Transferee shall
deliver a notice to the Facility Agent confirming to the Facility
Agent (on behalf of the other parties to the Senior Finance
Documents (other than the Transferor and the Transferee)) that it
shall be under the same obligations towards each of them as it would
have been under if it had been an original party to the Senior
Finance Documents as a Lender.
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(b) Upon delivery of a notice under clause 26.3(a), the relevant
Transferee shall (subject to clause 26.2 (Assignments and transfers
by Lenders) become a party to the Senior Finance Documents as a
Lender.
26.4 TRANSFERS BY LENDERS
(a) A Transferor may, subject to clause 26.2 (Assignments and transfers
by Lenders), after prior consultation with the Parent transfer all
or any of its rights and obligations under the Senior Finance
Documents to a Transferee by means of a transfer effected by the
Facility Agent executing a Transfer Certificate which has been duly
completed and signed by both the Transferee and the Transferor.
(b) On the later of (A) the date specified in the Transfer Certificate
as being the date on or as from which the transfer under this clause
26.4 is to take effect and (B) the date on which the Facility Agent
executes the Transfer Certificate, to the extent that, in the
Transfer Certificate, the Transferor seeks to transfer its right and
obligations under the Senior Finance Documents:
(i) the Transferor and the other parties to the relevant Senior
Finance Documents (the "EXISTING PARTIES") will be released
from their obligations to each other under those Senior
Finance Documents (the "DISCHARGED OBLIGATIONS");
(ii) the Transferee and the Existing Parties will assume
obligations towards each other which differ from the
Discharged Obligations only insofar as they are owed to or
assumed by the Transferee instead of the Transferor;
(iii) the rights of the Transferor and the Existing Parties against
each other under those Senior Finance Documents (the
"DISCHARGED RIGHTS") will be cancelled;
(iv) the Transferee and the Existing Parties will acquire rights
against each other which differ from the Discharged Rights
only insofar as they are exercisable by or against the
Transferee instead of the Transferor; and
(v) the Transferee will become a party to this agreement as a
Lender in relation to the relevant Facility.
(c) Each of the parties to this agreement (other than the relevant
Transferor and the relevant Transferee) irrevocably authorises the
Facility Agent to execute on its behalf any Transfer Certificate
which has been duly completed in accordance with this clause 26.4
and executed by each of the Transferor and the Transferee.
(d) The Facility Agent will notify the other parties to this agreement
of the receipt and execution by it on their behalf of any Transfer
Certificate as soon as reasonably practicable following execution.
(e) For the purposes of article 1278 of the French Civil Code, each
party to this agreement agrees that upon any transfer under this
clause 26.4 (Transfers by Lenders), the guarantees and Security
Interests created under any of Senior Finance Documents shall be
preserved for the benefit of all Finance Parties including the
Transferee.
26.5 FEE
On the date on which any transfer takes effect in accordance with this
clause 26, the Transferee will pay to the Facility Agent for its own
account a transfer fee of EUR 1,000 (VAT not included).
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26.6 NO CONTINUING LIABILITY
Nothing in any Senior Finance Document will oblige a Transferor to, or
cause a Transferor to be liable to:
(a) accept a re-assignment or re-transfer from a Transferee of any of
the rights or obligations assigned, transferred or novated under
this clause 26; or
(b) support any losses incurred by a Transferee by reason of the
non-performance by any Obligor of its obligations under any Senior
Finance Document.
26.7 BENEFIT OF AGREEMENT
This agreement will be binding on, and enure for the benefit of, each
party to it and its or any subsequent successors or assigns.
26.8 DISCLOSURE OF INFORMATION
Each Lender may disclose to a proposed assignee or transferee or any
sub-participant, risk participant or other participant proposing to enter
or having entered into a contract with that Lender regarding the Senior
Finance Documents any information in the possession of that Lender
relating to any Group Company provided that, prior to disclosing any
information in accordance with this clause 26.8, a Lender will obtain from
any potential assignee, transferee or sub-participant, or, as the case may
be, from its Affiliate, and deliver to the Parent, a confidentiality
undertaking, addressed to the Obligors, in substantially the same form as
given by each Lender under clause 25 or such other form as the Parent on
behalf of the Obligors may approve.
26.9 NO ADDITIONAL COST TO OBLIGORS
If any assignment or transfer results, at or after the time of the
assignment or transfer, in additional amounts (other than Mandatory Costs)
becoming due by any Obligor under any provision of this agreement, the
Transferee shall be entitled to receive such additional amounts only to
the extent that the Transferor would have been so entitled had there been
no such assignment or transfer.
27. LENDERS' DECISIONS
27.1 PROCEDURES
(a) Subject to clauses 27.2 (Exceptions) and 27.3 (Express provisions),
any provision of any Senior Finance Document may be amended or
waived (each a "MODIFICATION") with the agreement of the Majority
Lenders and the Parent. A Modification so agreed may be effected by
the Facility Agent executing any documents which may be required for
that purpose on behalf of itself and all the other Finance Parties
and the Parent executing those documents on behalf of itself and all
the other Obligors.
(b) The Facility Agent will as soon as practicable after any
Modification is made in accordance with clause 27.1(a) notify the
other parties to the Senior Finance Documents. Any such Modification
will take effect from the date on which that notification is given
(or any later date which the Facility Agent may specify in that
notification) and will be binding on all parties to the Senior
Finance Documents.
27.2 EXCEPTIONS
The following matters will require the unanimous agreement of all of the
Lenders:
91
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(a) any increase in the Commitment of any Lender;
(b) any reduction of the Margin or any reduction of (or change in the
currency of) the amount of any payment of principal, interest,
guarantee fee or commission payable by any party under any Senior
Finance Document;
(c) any extension of any Availability Period, any Maturity Date, any
Repayment Date or any other date for payment of any amount due,
owing or payable to any Lender under any Senior Finance Document;
(d) any change to the Borrowers or Guarantors or any release of
security, other than in accordance with clause 17 (Changes to
Obligors and Security); or
(e) any amendment of the definition of "Majority Lenders" in clause 1.1
(Definitions) or any amendment of clause 3.3 (Rights and obligations
of Finance Parties), clause 22 (Pro rata payments), clause 26
(Changes to Parties) or this clause 27.
27.3 EXPRESS PROVISIONS
Any consent or other matter which, by the express terms of any Senior
Finance Document, is to be given by all the Lenders will not be effective
unless all the Lenders have agreed to it but, subject to the agreement of
all the Lenders having been obtained, may be given by the Facility Agent
on behalf of all the Lenders.
27.4 HEDGING LENDERS
Subject to the terms of the Intercreditor Agreement, any Hedging Agreement
may be amended or waived by agreement between the parties to that Hedging
Agreement.
28. INDEMNITIES
28.1 GENERAL INDEMNITY AND BREAKAGE COSTS
The Parent will indemnify each Finance Party on demand against any loss
(including loss of profit) which it incurs as a result of:
(a) the occurrence of any Event of Default (and will pay all reasonable
legal expenses incurred as a result of the occurrence of a Potential
Event of Default);
(b) any failure by an Obligor to pay any amount due under a Senior
Finance Document on its due date;
(c) any Drawing not being made for any reason (other than as a result of
a default by a Finance Party) on the Drawdown Date specified in the
relevant Drawdown Request; or
(d) any Advance or overdue amount under a Senior Finance Document being
repaid or prepaid otherwise than on the last day of an Interest
Period relating to that Advance or overdue amount,
in each case upon production of duly documented evidence.
28.2 CURRENCY INDEMNITY
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Without prejudice to clause 28.1 (General indemnity and breakage costs),
if:
(a) any amount payable by any Obligor under or in connection with any
Senior Finance Document is received by any Finance Party (or by an
Agent on behalf of any Finance Party) in a currency (the "PAYMENT
CURRENCY") other than that agreed in the relevant Senior Finance
Document (the "AGREED CURRENCY"), whether as a result of any
judgement or order, the enforcement of any judgement or order, the
liquidation of the relevant Obligor or otherwise, and the amount
produced by converting the Payment Currency so received into the
Agreed Currency is less than the relevant amount of the Agreed
Currency; or
(b) any amount payable by any Obligor under or in connection with any
Senior Finance Document has to be converted from the Agreed Currency
into another currency for the purpose of (i) making or filing a
claim or proof against any Obligor, (ii) obtaining an order or
judgement in any court or other tribunal or (iii) enforcing any
order or judgement given or made in relation to any Senior Finance
Document,
then that Obligor will, as an independent obligation, on demand indemnify
the relevant Finance Party for the deficiency and any loss sustained as a
result, upon production of duly documented evidence. Any conversion
required will be made at the prevailing rate of exchange on the date and
in the market determined by the relevant Finance Party as being most
appropriate for the conversion. That Obligor will also pay the costs of
the conversion.
28.3 WAIVER
The Parent waives any right it may have in any jurisdiction to pay any
amount under any Senior Finance Document in a currency other than that in
which it is expressed to be payable in that Senior Finance Document.
29. MISCELLANEOUS
29.1 CERTIFICATES CONCLUSIVE
Save as expressly provided otherwise in any Senior Finance Document, a
certificate, determination, notification or opinion of any Finance Party
stipulated for in any Senior Finance Document or as to any rate of
interest or any other amount payable under any Senior Finance Document
will be conclusive and binding on each Obligor, except in the case of
manifest error.
29.2 NO IMPLIED WAIVERS
(a) No failure or delay by any Finance Party in exercising any right,
power or privilege under any Senior Finance Document will operate as
a waiver of that right, power or privilege, nor will any single or
partial exercise of any right, power or privilege preclude any other
or further exercise of that right, power or privilege, or the
exercise of any other right, power or privilege.
(b) The rights and remedies provided in the Senior Finance Documents are
cumulative and not exclusive of any rights and remedies provided by
law and all those rights and remedies will, except where expressly
provided otherwise in any Senior Finance Document, be available to
the Finance Parties severally and any Finance Party shall be
entitled to commence proceedings in connection with those rights and
remedies in its own name.
(c) A waiver given or other consent granted by any Finance Party under
any Senior Finance Document will be effective only if given in
writing and then only in the instance and for the purpose for which
it is given.
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29.3 INVALIDITY OF ANY PROVISION
If any provision of this agreement is or becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not be affected or
impaired in any way.
30. GOVERNING LAW AND SUBMISSION TO JURISDICTION
30.1 GOVERNING LAW
This agreement (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this agreement)
shall be governed by, and construed in accordance with, French law.
30.2 SUBMISSION TO JURISDICTION
For the benefit of each Finance Party, each Obligor irrevocably submits to
the jurisdiction of the Commercial Courts of Paris (Tribunal de Commerce
de Paris) for the purpose of hearing at first instance and determining any
dispute arising out of this agreement and for the purpose of enforcement
of any judgement against its assets.
30.3 ELECTION OF DOMICILE
For the benefit of each Finance Party, [each Obligor (other than the
Parent)][Antargaz] irrevocably elects domicile with the Parent for the
purposes of the Senior Finance Documents.
IN WITNESS whereof this agreement has been duly executed on the date first above
written.
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SCHEDULE 1
LENDERS
TERM REVOLVING
COMMITMENT (EUR) COMMITMENT (EUR)
---------------- ----------------
CREDIT LYONNAIS
Investment / Banking / DPID /
Leveraged Finance
81/83, rue de Richelieu
75002 Paris - France 220,000,000 50,000,000
Facsimile: +33 1 42 95 14 72 / 88 21
Attention: Jerome Del Ben
Brigitte Chalaud
95
SCHEDULE 2
SECURITY DOCUMENTS
1. BY THE PARENT
Each of the following documents executed by the Parent in favour of the
Security Agent in the agreed form:
(a) pledge of financial instruments accounts (nantissement de compte
d'instruments financiers) over all the shares of Antargaz;
(b) assignment (cession) by way of security (pursuant to the Loi Dailly)
of all proceeds of claims of the Parent under the warranties given
to the Parent by the Vendors under the Acquisition Documents;
(c) first ranking pledge of the Parent's business (nantissement de fonds
de commerce);
(d) a general assignment (cession) of all Receivables by way of security
(pursuant to the Loi Dailly).
2. BY ANTARGAZ
Each of the following documents executed by Antargaz in favour of the
Security Agent in the agreed form:
(a) a general assignment (cession) of all Receivables by way of security
(pursuant to the Loi Dailly);
(b) pledges of financial instruments accounts (nantissements de compte
d'instruments financiers) and pledges of shares (nantissements de
parts sociales) over all the shares (less a maximum of 5 shares) of
the following Companies held by Antargaz and:
(i) Wogegal SA;
(ii) Gaz Est Distribution SA;
(iii) Nord GPL SA;
(iv) Rhone Mediterranee Gaz SA;
(v) Societe Bearnaise des Gaz Liquefies (Sobegal) SA;
(vi) Societe Industrielle des Gaz de Petrole de l'Ouest (S.I.G.A.P.
Ouest) SARL;
(vii) Rhone Gaz SA;
(viii)Geovexin SA;
(ix) Geogaz Lavera SA;
(x) Compagnie Bordelaise des Gaz Liquides (Cobogal) SA; and
(c) first ranking pledge of the Antargaz's business (nantissement de
fonds de commerce).
96
SCHEDULE 3
DOCUMENTARY CONDITIONS PRECEDENT
1. FORMALITIES CERTIFICATES
A certificate in the agreed form from each Obligor signed by its chief
financial officer (or as the case may be its chief executive officer)
attaching, in relation to the relevant Obligor, the following documents:
(a) a certified copy of the statuts and extrait K-bis of the Obligor
and, in respect of Antargaz only, of each of the Subsidiaries of
Antargaz whose shares are pledged pursuant to the Senior Finance
Documents;
(b) a certified copy of the resolution of the board of directors of the
Obligor (or equivalent) approving the transactions and matters
contemplated by the Senior Finance Documents to which that Obligor
is or is to be a party and approving the execution, delivery and
performance of each and authorising named persons to sign the Senior
Finance Documents to which it is or is to be a party and any
documents to be delivered by that Obligor under any of the same; and
(c) if required under its constitutional or governing documents, a
certified copy of a resolution of the shareholders' meeting of the
Obligor approving the transactions and matters contemplated by the
Senior Finance Documents to which that Obligor is or is to be a
party.
2. SENIOR FINANCE DOCUMENTS
Certified copies of the following documents in the agreed form duly
executed and delivered by all parties to them:
(a) the Security Documents;
(b) the Intercreditor Agreement;
(c) the Fees Letter; and
(d) the Disclosure Letter;
3. HIGH YIELD DOCUMENTS
Certified copies of the following documents in the agreed form duly
executed and delivered by all parties to them:
(a) the High Yield Trust Deed;
(b) the High Yield Notes; and
(c) evidence (pursuant to the opinion referred to in paragraph 14(d)
below) that the rights of the holders of the High Yield Notes and of
the High Yield Trustee are subordinated to the rights of the Senior
Finance Parties under the Senior Finance Documents.
4. EQUITY DOCUMENTS
(a) Certified copies of the following documents in the agreed form duly
executed and delivered by all parties to them:
(i) the Constitutional Documents;
(ii) the Shareholders Agreement.
97
(b) Evidence of the allocation of the shareholding of the Parent on the
Signing Date.
5. ACQUISITION DOCUMENTS AND MATERIAL CONTRACTS
Certified copies of the following documents in the agreed form duly
executed and delivered by all parties to them:
(a) the Sale and Purchase Agreement;
(b) the Warranty Agreement; and
(c) the Material Contracts.
6. INTRA-GROUP BOND DOCUMENTS
Certified copies of the following documents in the agreed form duly
executed and delivered by all parties to them:
(a) the Intra-Group Bonds; and
(b) the terms and conditions of the Intra-Group Bonds set out in the
Parent's Bond resolution having decided on their issue.
7. INDEBTEDNESS AND SECURITY INTERESTS
A certificate in the agreed form from the Parent and Antargaz signed by
the chief executive officer of the Parent and the chief financial officer
of Antargaz setting out the financial indebtedness of the Group as at the
Signing Date and all Security Interests granted by the members of the
Group as at the Signing Date (other than those securing the Existing
Facilities).
8. FINANCIAL INFORMATION
Certified copies in the agreed form of:
(a) the Original Audited Accounts;
(b) the Original Management Accounts;
(c) the Approved Projections;
(d) the audited unconsolidated accounts of each Obligor as at 31 March
2002; and
(e) the management unconsolidated accounts of each Obligor as at 31
March 2003.
9. ANCILLARY SECURITY NOTICES
(a) The originals of the documents set out below to be issued in
connection with the Security Documents and duly signed on behalf of
each relevant Obligor:
(i) declaration de gage and attestation de gage relating to the
special charged account to which the shares of Antargaz are
credited;
(ii) declaration de gage and attestation de gage relating to the
special charged account to which the shares of the
Distribution Companies and Storage and Logistics Companies
subject to a Security Document are credited;
(iii) a bordereau Dailly from the Parent relating to the assignment
by way of security of the Parent's claims under the Vendors'
warranties;
(iv) a bordereau Dailly from the Parent relating to the general
assignment of Receivables (to the extent required under the
relevant master agreement); and
98
(v) a bordereau Dailly from Antargaz relating to the general
assignment of Receivables (to the extent required under the
relevant master agreement).
(b) All third party consents required to be obtained on or prior to the
first Drawdown Date in any Security Document.
10. REFINANCING AND RELEASE OF EXISTING SECURITY
Evidence satisfactory to the Facility Agent that:
(a) the Obligors have cancelled all the Existing Facilities effective on
the first Drawdown Date;
(b) the Existing Term Facility will be fully repaid on the first
Drawdown Date out of the proceeds of the Term Facility, cash of the
Parent and as the case may be, a first Revolving Advance made on the
first Drawdown Date;
(c) Deutsche Bank AG London as security agent of the Existing Facility,
acting on behalf of all beneficiaries (including hedging banks) of
the security interests granted in connection with the Existing
Facilities:
(i) has fully released with effect on the first Drawdown Date all
such existing security interests (except for pledges of
business (nantissements de fonds de commerce);
(ii) has agreed to promptly execute any necessary joint request
(requete conjointe) to the president of any relevant
Commercial Court and any other documents as may be necessary
to obtain the de-registration (radiation) of all pledges of
business (nantissements de fonds de commerce) granted in
connection with the Existing Facilities.
11. DISTRIBUTION BY ANTARGAZ
If a first Revolving Advance is to be made to the Parent on the first
Drawdown Date pursuant to clause 2.2(b) (Purpose), a certified copy of
shareholders' resolution of Antargaz deciding a distribution of dividends
in an amount of not less than the amount of such Revolving Advance and to
be paid on a date which is not later than three Business Days after the
first Drawdown Date.
12. FEES
Evidence satisfactory to the Facility Agent that, upon drawdown of the
first Advance, all fees payable in accordance with the Fees Letter will be
paid and all stamp duty and other fees (whether in relation to filings,
property transfers, security or otherwise) will be paid.
13. LETTER
The original letter referred to in clause 7.8 (Effective global rate)
substantially in the form set out in schedule 8 and counter-signed on
behalf of the Parent.
14. LEGAL OPINIONS
Each of the following legal opinions in agreed form:
(a) a legal opinion of Shearman & Sterling as to matters of French law
relating to validity and enforceability of the Senior Finance
Documents; and
99
(b) a legal opinion of Linklaters as to matters of French law relating
to capacity and authority in relation to the Obligors party to the
Senior Finance Documents;
(c) a legal opinion of Linklaters as to matters of Luxembourg law
relating to the status, capacity and authorization of Finco in
respect of its execution of the Intercreditor Agreement;
(d) legal opinion of Ashurst Morris Crisp as to matters of English law
concerning the High Yield Documents.
100
SCHEDULE 4
PART 1 - DRAWDOWN REQUEST - ADVANCES
To: Credit Lyonnais as Facility Agent
Attention: [__________]
From: [BORROWER/PARENT]
Date: [__________]
Dear Sirs,
RE: FACILITIES AGREEMENT DATED 26 JUNE 2003 (THE "FACILITIES AGREEMENT")
We request a Drawing of the [TERM/ REVOLVING] Facility as follows:
(a) Amount: EUR [__________]
(b) Currency EUR [__________]
(c) Drawdown Date: EUR [__________]
(d) Interest Period: EUR [__________]
(e) Payment should be made to: EUR [__________]
(f) The Borrower is: EUR [__________]
We confirm that:
(i) the representations and warranties made in clause 18 (Representations and
Warranties) of the Facilities Agreement stipulated as being made or
repeated on the date of this Drawdown Request are true and accurate as if
made in relation to the facts and circumstances existing on that date;
(ii) each Obligor is in full compliance with its undertakings contained in
clause 19 (Undertakings) of the Facilities Agreement; and
(iii) [no Default has occurred and is continuing or will occur as a result of
the proposed Advance being made.](1) [None of the events specified in
clauses 20.3(a) to 20.3(g) has occurred and is continuing.] (2)
Terms defined in the Facilities Agreement have the same meanings when used in
this request.
______________________
[AUTHORISED SIGNATORY]
for and on behalf of
[BORROWER/PARENT]
- ---------------
(1) For any other Drawdown Request than the first Drawdown Request.
(2) For the first Drawdown Request only.
101
PART 2 - DRAWDOWN REQUEST - BANK GUARANTEES
To: Credit Lyonnais as Facility Agent
Attention: [__________]
From: [BORROWER/PARENT]
Date: [__________]
Dear Sirs,
RE: FACILITIES AGREEMENT DATED 26 JUNE, 2003 (THE "FACILITIES AGREEMENT")
We request a Drawing of the Revolving Facility by way of issue of a Bank
Guarantee as follows:
Amount: EUR [__________]
Currency EUR [__________]
Drawdown Date: EUR [__________]
Beneficiary: EUR [__________]
Expiry Date: EUR [__________]
Obligations to be guaranted: EUR [__________]
The Borrower is: EUR [__________]
We confirm that:
(i) the representations and warranties made in clause 18 (Representations and
Warranties) of the Facilities Agreement stipulated as being made or
repeated on the date of this Drawdown Request are true and accurate as if
made in relation to the facts and circumstances existing on that date;
(ii) each Obligor is in full compliance with its undertakings contained in
clause 19 (Undertakings) of the Facilities Agreement; and
(iii) no Default has occurred and is continuing or will occur as a result of the
proposed Advance being made.
We attach the form of the proposed Bank Guarantee.
Terms defined in the Facilities Agreement have the same meanings when used in
this request.
______________________
[AUTHORISED SIGNATORY]
for and on behalf of
[BORROWER/PARENT]
102
SCHEDULE 5
TRANSFER CERTIFICATE (3)
[(REFERRED TO IN CLAUSE 26.4 (TRANSFERS BY LENDERS)]
To: Credit Lyonnais as Facility Agent
for and on behalf of the Obligors and the Finance Parties
(each as defined in the Facilities Agreement referred to below).
This transfer certificate (this "CERTIFICATE") relates to a facilities agreement
dated 26 June, 2003 between, among others, AGZ Holding (the "PARENT"), Antargaz
S.A., the banks and financial institutions named in that agreement as lenders
and Credit Lyonnais as Facility Agent and Security Agent (as from time to time
amended the "FACILITIES AGREEMENT"). Terms defined in the Facilities Agreement
shall, unless otherwise defined in this Certificate, have the same meanings when
used in this Certificate.
1. TRANSFEROR CONFIRMATION AND REQUEST
[NAME OF TRANSFEROR] (the "TRANSFEROR") by its execution of this
Certificate:
(a) requests [NAME OF TRANSFEREE] (the "TRANSFEREE") to accept and
procure, in accordance with clause 26.4 (Transfers by Lenders), the
transfer to the Transferee of the portion of the Transferor's
Commitment and participation in the Facilities (and in the Advances
made by it) as specified in schedule 1 to this Certificate (the
"TRANSFER RIGHTS") by counter-signing this Certificate and
delivering it to the Facility Agent at its address for notices under
the Facilities Agreement, so as to take effect on the date specified
in schedule 2 to this Certificate (the "TRANSFER DATE"); and
(b) confirms that the details which appear in schedule 1 to this
Certificate accurately record the amount of the Transferor's
Commitments and the principal amount of the Transfer Rights at the
date of this Certificate.
2. TRANSFEREE REQUEST
The Transferee, by its execution of this Certificate, requests each
Obligor and each Finance Party to accept this Certificate as being
delivered under and for the purposes of clause 26.4 (Transfers by
Lenders), so as to take effect in accordance with the terms of that clause
on the Transfer Date.
3. TRANSFER FEE
The Transferee shall pay to the Facility Agent for the Facility Agent's
own account a transfer fee of EUR 1,000 (VAT not included) as specified in
clause 26.5 (Fee).
- ----------------
(1) Each of the Transferor and Transferee should ensure that all regulatory
requirements are satisfied in connection with its entry into of any
Transfer Certificate.
103
4. TRANSFEREE REPRESENTATIONS
The Transferee:
(a) confirms that it has received from the Transferor a copy of the
Facilities Agreement, together with all other documents and
information which it has requested in connection with the Facilities
Agreement;
(b) confirms that it has not relied, and will not after the date of this
Certificate rely, on the Transferor or any other Finance Party to
check or enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of any of those
documents or that information;
(c) agrees that it has not relied, and will not after the date of this
Certificate rely, on the Transferor or any other Finance Party to
assess or keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of the Parent
or any other party to the Facilities Agreement;
(d) represents and warrants to the Transferor and each other Finance
Party that it has the power to become a party to the Facilities
Agreement as a Lender on the terms set out in the Facilities
Agreement and this Certificate and has taken all necessary steps to
authorise execution and delivery of this Certificate;
(e) acknowledges the limitations on the Transferor's obligations set out
in clause 26.6 (No continuing liability); and
(f) agrees that if any Transfer Rights are rescheduled or renegotiated,
the Transferee and not the Transferor will be subject to the
rescheduled or renegotiated terms.
5. TRANSFEREE COVENANTS
The Transferee undertakes with the Transferor and each other party to the
Facilities Agreement that it will perform in accordance with its terms all
those obligations which, by the terms of the Facilities Agreement, will be
assumed by it following delivery of this Certificate to the Facility
Agent.
6. EXCLUSION OF TRANSFEROR'S LIABILITIES
Neither the Transferor nor any other Finance Party makes any
representation or warranty nor assumes any responsibility in relation to
the legality, validity, effectiveness, adequacy or enforceability of the
Senior Finance Documents and assumes no responsibility for the financial
condition of the Parent or any other party to the Senior Finance Documents
or for the performance and observance by the Parent or any other Obligor
of any of its obligations under the Senior Finance Documents and all of
those conditions and warranties, whether express or implied by law or
otherwise, are hereby excluded.
7. SUBSTITUTION AND ASSUMPTION
On execution of this Certificate by the Facility Agent (on behalf of the
Transferor and the Transferee), the Transferee will become a party to the
Facilities Agreement on and with effect from the Transfer Date in
substitution for the Transferor in relation to those rights and
obligations which, by the terms of the Facilities Agreement and this
Certificate, are assumed by the Transferee. A copy of this Certificate
shall be notified (at the initiative and cost of the Transferee) to each
Obligor through a French huissier and the Transferee shall benefit from
all of the Transferor's rights under the Security Documents with respect
to the Transfer Rights.
104
For the purposes of article 1278 of the French Civil Code, the guarantees
and Security Interests created under any of Senior Finance Documents shall
be preserved for the benefit of all Finance Parties including the
Transferee.
8. REVOLVING COMMITMENTS
To the extent that this Certificate operates to novate Revolving
Commitments, each Issuing Lender has consented to that novation in
accordance with clause 26.2 (Assignments and transfers by Lenders).
9. LAW
This Certificate (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this Certificate)
shall be governed by and construed in accordance with French law.
IN WITNESS of which the parties to this Certificate have duly executed this
Certificate on the date which appears at the end of this Certificate.
105
SCHEDULE 1 TO TRANSFER CERTIFICATE
Transferor's existing Term Commitment: EUR [___]
Transferor's existing Revolving Commitment: EUR [___]
Portion of Transferor's existing [Term Commitment Term Advance] to be transferred: EUR [___]
Portion of Transferor's existing Revolving Commitment to be transferred: EUR [___]
Portion of Transferor's existing Contingent Liability under any relevant Bank Guarantee EUR [___]
to be transferred
[Participation in Revolving Advance(s) to be transferred (4):
Revolving Advance 1: Participation: EUR [___] Interest Period: [__] months, Maturity Date: 200[_]
Revolving Advance 2: Participation: EUR [___] Interest Period: [__] months, Maturity Date: 200[_]
[Revolving Advance [__]:] Participation: EUR [___] Interest Period: [__] months, Maturity Date: 200[_]
- ---------------
(4) Only relevant if Transfer Date is during an Interest Period.
106
SCHEDULE 2 TO TRANSFER CERTIFICATE
PARTICULARS RELATING TO THE TRANSFEREE
Transfer Date:
Lending Office:
Contact Name:
Account for Payments:
Address for Notices:
Telephone:
Facsimile:
SIGNATORIES TO TRANSFER CERTIFICATE
[Transferor] [Transferee]
By:_______________ By:_______________
Date: [__________] Date: [__________]
[Facility Agent]
By:_______________
Date: [__________]
107
SCHEDULE 6
ACCESSION DOCUMENT
THIS AGREEMENT is made on [__________]
BETWEEN:
(1) [__________] (a company incorporated in [__________] [with registered
number [__________]]) (the "NEW OBLIGOR");
(2) AGZ HOLDING (a company incorporated in France as a societe anonyme with
registered number 413 765 108 RCS Paris) (the "PARENT") for itself and as
agent for the existing Obligors;
(3) Credit Lyonnais in its capacity as Facility Agent under the Facilities
Agreement; and
(4) Credit Lyonnais in its capacity as Security Agent under the Facilities
Agreement.
BACKGROUND:
(A) This agreement is entered into in connection with facilities agreement
(the "FACILITIES AGREEMENT") dated 26 June, 2003 between, amongst others,
(1) the Parent, (2) Antargaz, (3) Credit Lyonnais as Arranger, (4) the
banks and financial institutions named in the Facilities Agreement as
Lenders, (5) Credit Lyonnais as Facility Agent and Security Agent.
(B) This agreement has been entered into to record the admission of the New
Obligor as a [Borrower/ Guarantor] under the Facilities Agreement and as
an Obligor under the Intercreditor Agreement.
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS
Words and expressions defined in the Facilities Agreement have the same
meanings when used in this agreement.
2. ADMISSION OF NEW OBLIGOR
2.1 THE NEW OBLIGOR AGREES TO BECOME:
(a) a [Borrower/ Guarantor] under the Facilities Agreement and agrees to
be bound by the terms of the Credit Agreement as a [Borrower/
Guarantor]; and
(b) an Obligor under the Intercreditor Agreement and agrees to be bound
by the terms of the Intercreditor Agreement as an Obligor.
2.2 The New Obligor confirms the appointment of the Parent as its agent on the
terms of clause 2.3 (Parent as Obligors' agent) of the Facilities
Agreement.
2.3 The New Obligor confirms that its address details for notices in relation
to clause 24 (Notices) are as follows:
Address: [__________]
Facsimile: [__________]
Attention of: [__________]
108
2.4 The parties to this agreement other than the New Obligor confirm their
acceptance of the New Obligor as a [Borrower/ Guarantor] for the purpose
of the Facilities Agreement and as an Obligor for the purpose of the
Intercreditor Agreement.
3. REPRESENTATIONS
The New Obligor represents and warrants in the terms set out in 18.2
(Incorporation) to 18.5 (No contravention) inclusive and in 18.7
(Consents) and acknowledges that the Facility Agent and the Security Agent
enter into this Accession Document in full reliance on those
representations and warranties.
4. LAW AND JURISDICTION
4.1 This agreement (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this deed) shall
be governed by and construed in accordance with French law.
4.2 For the benefit of each Finance Party, each of the Parent and the New
Obligor irrevocably submits to the jurisdiction of the Commercial Court of
Paris (Tribunal de Commerce de Paris) for the purpose of hearing and
determining at first instance any dispute arising out of this agreement
and for the purpose of enforcement of any judgement against its assets.
4.3 For the benefit of each Finance Party, the New Obligor irrevocably elects
domicile with the Parent for the purposes of the Senior Finance Documents.
109
SIGNATORIES TO ACCESSION DOCUMENT
THE NEW OBLIGOR
[Name]
BY: ___________________
THE PARENT
AGZ HOLDING
BY: ___________________
for itself and as agent
for and on behalf of
the existing Obligors
THE FACILITY AGENT
[Name]
BY: ___________________
for itself and as Facility Agent
on behalf of the Lenders
THE SECURITY AGENT
[Name]
BY: ___________________
for itself and as Security Agent
on behalf of the Lenders
110
SCHEDULE 7
AUDITORS CERTIFICATE
[HEADED NOTEPAPER OF AUDITORS]
To: Credit Lyonnais as Facility Agent
For and on behalf of the Finance Parties (each as defined in the
Facilities Agreement referred to below)
Dear Sirs,
This certificate (this "CERTIFICATE") relates to a facilities agreement
dated 26 June, 2003 between, AGZ Holding (the "OBLIGORS"), the banks and
financial institutions named in that agreement as lenders and Credit
Lyonnais as Facility Agent and Security Agent (as from time to time
amended, the "FACILITIES AGREEMENT"). Terms defined in the Facilities
Agreement shall, unless otherwise defined in this Certificate, have the
same meanings when used in this Certificate.
In accordance with clause 19.10(d)(ii) of the Credit Agreement, we hereby
confirm that as at the date on which the Annual Accounts for the year
ended [__________] were prepared, the Parent was in compliance with the
financial covenants contained in clause 19.11 (Financial Covenants) of the
Credit Agreement.
(1) LEVERAGE:
We confirm that:
(i) as at [__________], Total Net Debt was [__________]; and
(ii) for the year ended [__________], EBITDA was [__________].
Therefore, as at [__________], the ratio of Total Net Debt to EBITDA
was [__________].
(2) NET INTEREST COVER:
We confirm that:
(i) for the year ended [__________], EBITDA was [__________]; and
(ii) for the year ended [__________], Net Interest was [_________].
Therefore, as at [__________], the ratio of EBITDA to Net Interest
was [__________].
- -----------------------
[Auditors]
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SCHEDULE 8
FORM OF EFFECTIVE GLOBAL RATE LETTER
[HEADED NOTE PAPER OF CREDIT LYONNAIS]
26 June, 2003
AGZ Holding
[INSERT ADDRESS]
Dear Sirs,
SENIOR FACILITIES AGREEMENT DATED 26 JUNE, 2003 BETWEEN AMONG OTHERS AGZ HOLDING
AS PARENT, CREDIT LYONNAIS AS ARRANGER, UNDERWRITER, FACILITY AGENT AND SECURITY
AGENT AND THE LENDERS NAMED THEREIN PURSUANT TO WHICH THE LENDERS AGREED TO MAKE
AVAILABLE TO THE BORROWERS EUR 270,000,000 IN TERM AND WORKING CAPITAL CREDIT
FACILITIES (THE "FACILITIES") TO THE BORROWERS (THE "FACILITIES AGREEMENT").
Unless otherwise defined in this letter, words and expressions defined in the
Facilities Agreement have the same meanings when used in this letter.
Pursuant to the terms of clause 7.8 (Effective global rate) of the Facilities
Agreement, it was agreed that the effective global rate (taux effectif global)
of the Facilities would be notified to the Parent by delivery of a separate
letter from the Facility Agent (acting for itself and on behalf of the other
Lenders) on or before the date of the Facilities Agreement.
This letter constitutes the separate letter referred to at clause 7.8 of the
Facilities Agreement and constitutes an integral part of the Facilities
Agreement.
We wish to draw your attention to the fact that, taking into account the nature
of the provisions of the Facilities Agreement, and in particular the variability
of the interest rate and the ability that you have to choose the length of
Interest Periods, it is not possible to determine the exact effective global
rate of the Facilities and we are asking you to acknowledge this fact by signing
this letter.
However, for the purposes of articles L.313-1 to L.313-6 of the French Consumer
Code (Code de la Consommation), we have calculated, by way of example, the
effective global rate applicable to the Facilities on the basis of: (i) the
making available of the entirety of the Facilities on the date of the Facilities
Agreement and (ii) the following factors as at 26 June 2003:
- 3 months EURIBOR is [__] per cent. per annum; and
- the arrangement fee and commitment fee provided for in the Facility
Agreement and the estimated legal fees which relate to the
transaction amount to the sums set out in a separate letter which
was addressed to you today.
112
In application of the foregoing:
(i) the effective global rate for the Term Facility is [__] per cent. per
annum, the rate for this period being [__] per cent. and the period being
of 1 month duration;
(ii) the effective global rate for the revolving facility is [__] per cent. per
annum, the rate for this period being [__] per cent. and the period being
of 1 month duration.
Please acknowledge receipt of this letter by counter-signing it where indicated
below.
Yours faithfully,
The Facility Agent
CREDIT LYONNAIS
(acting for itself and on behalf of the other Lenders)
________________________________
Name:
The Parent
AGZ HOLDING
________________________________
Name:
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SCHEDULE 9
PART 1 - DISTRIBUTION COMPANIES
NAME TYPE OF COMPANY NUMBER
Wogegal ("WOGEGAL") Societe anonyme 310 095 658
Gaz Est Distribution ("GAZ EST DISTRIBUTION") Societe anonyme 421 283 615
Nord GPL ("NORD GPL") Societe anonyme 422 265 504
Aquitaine-Pyrenees Gaz ("MIDI-PYRENEES Societe anonyme 410 968 770
GAZ")
Rhone Mediterranee Gaz - RMG ("RMG") Societe anonyme 382 151 272
114
PART 2 - STORAGE AND LOGISTICS COMPANIES
NAME TYPE OF COMPANY NUMBER
Geovexin ("GEOVEXIN") Societe anonyme 304 350 887
Societe Bearnaise des Gaz Liquefies ("SOBEGAL") Societe anonyme 095 880 894
Geogaz Lavera ("GEOGAZ") Societe anonyme 703 002 535
Floregaz ("FLOREGAZ") Groupement d' interets economiques 421 385 881
Societe des Gaz Liquefies de Groupement d' interets economiques 777 344 623
Normandie("NORGAL")
Societe en participation de Queven ("SP Societe en participation Not
QUEVEN") applicable
Compagnie Bordelaise des Gaz Liquides Societe anonyme 456 201 011
("COBOGAL")
Rhone Gaz ("RHONE GAZ") Societe anonyme 969 507 235
Societe Industrielle des Gaz de Petrole de l'Ouest Societe a responsabilite limitee 026 180 216
("SIGAP OUEST")
Societe en participation Bus Paris ("SEP BUS Societe en participation Not
PARIS") applicable
115
SCHEDULE 10
PART 1 - SUPPLY AGREEMENTS
(a) The supply agreement dated on or before the date of completion of the
Acquisition, as amended from time to time, between Elf Antar France and
the Parent for the supply by Elf Antar France to the Parent of butane and
propane (the "PRINCIPAL SUPPLY AGREEMENT"), together with each document
that is governed by, or entered into pursuant to that supply agreement
(including the statuts of, and the internal rules governing, the
Groupement Donges).
(b) The supply agreement dated 2 April 2001, between the Parent and Antargaz,
as amended from time to time, for the supply by the Parent to Antargaz of
butane and propane.
(c) The letter dated on or before the date of completion of the Acquisition
from the Parent to Elf Antar France in the agreed form relating to certain
circumstances in which the Parent may transfer the benefit of the
Principal Supply Agreement to Antargaz.
116
PART 2 - OTHER MATERIAL CONTRACTS
1. NORGAL STORAGE AGREEMENTS
The agreements relating to the storage and ancillary services provided by
Norgal,, each as amended from time to time, including:
(a) the contract governing the Groupement d' Interets Economiques Norgal
and the allocation of payments to and charges to the parties to the
Groupement d' Interets Economiques Norgal; and
(b) the technical assistance agreement between Norgal and certain of its
members, made between Norgal and Total Gaz dated 19 June 2000.
2. GEOGAZ STORAGE AGREEMENTS
The agreements relating to the storage and ancillary services provided by
Geogaz, each as amended from time to time, including:
(a) the agreement governing the invoicing by Geogaz to its shareholders
of payments calculated on the basis of the volume made available to
each of them and on their traffic accounted for according to the
different means of loading and unloading by applying fixed tariffs
decided upon by the Conseil d' Administration of Geogaz; and
(b) the business and technical assistance agreement made between Geogaz
and Geostock dated 28 May 1996.
3. GEOVEXIN STORAGE AGREEMENTS
The agreements relating to the storage and ancillary services provided by
Geovexin, each as amended from time to time, including:
(a) the agreement governing the allocation of payments by Geovexin to
shareholders on the basis of the volume made available to them and
the amount of their traffic;
(b) the agreement on tariffs for charging made in accordance with the
Geovexin shareholders agreement dated 8 August 1997;
(c) the business and technical assistance agreement made between
Geovexin and Geostock dated 27 March 1997;
(d) the business and services agreement made between Geovexin and Elf
Antar France (formerly Elf France) dated 29 June 1977;
(e) the framework agreement on the construction of new service
installations or the improvement of existing services installations
which Elf makes available exclusively to Geovexin, made between
Geovexin, Elf Antar France and Geostock dated 28 March 1993; and
(f) the agreement between Geovexin and Elf Antar France (formerly Elf
France) dated 26 April 1988 in relation to the lease to Geovexin of
a propane pipeline.
117
4. OTHER
(a) Contract for supply management and provision of storage at the
Centre d' Herrlisheim made between Rhone Gaz and Antargaz dated 15
December 1997, as amended from time to time.
(b) Contract for supply management and provision of storage at the
Centre de Feyzin made between Rhone Gaz and Antargaz dated 15
December 1997, as amended from time to time.
(c) Contract for supply management and provision of storage at the
Centre de Fos sur Mer made between Rhone Gaz and Antargaz dated 15
December 1997, as amended from time to time.
118
SCHEDULE 11
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank
of England and/or the Financial Services Authority (or, in either case,
any other authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Facility Agent shall calculate, as a percentage rate, a
rate (the "ADDITIONAL COST RATE") for each Lender, in accordance with the
paragraphs set out below. The Mandatory Cost will be calculated by the
Facility Agent as a weighted average of the Lenders' Additional Cost Rates
(weighted in proportion to the percentage participation of each Lender in
the relevant Advance) and will be expressed as a percentage rate per
annum.
3. The Additional Cost Rate for any Lender lending from a Lending Office in a
Participating Member State will be the percentage notified by that Lender
to the Facility Agent. This percentage will be certified by that Lender in
its notice to the Facility Agent to be its reasonable determination of the
cost (expressed as a percentage of that Lender's participation in all
Advances made from that Lending Office) of complying with the minimum
reserve requirements of the European Central Bank in respect of loans made
from that Lending Office.
4. The Additional Cost Rate for any Lender lending from a Lending Office in
the United Kingdom will be calculated by the Facility Agent as follows:
E x 0.01
-------- per cent. per annum.
300
Where:
E is designed to compensate Lenders for amounts payable under the Fees
Rules and is calculated by the Facility Agent as being the average
of the most recent rates of charge supplied by the Reference Banks
to the Facility Agent pursuant to paragraph 6 below and expressed in
pounds per GBP 1,000,000.
5. For the purposes of this Schedule:
(a) "FEES RULES" means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in
force from time to time in respect of the payment of fees for the
acceptance of deposits;
(b) "FEE TARIFFS" means the fee tariffs specified in the Fees Rules
under the activity group A.1 Deposit acceptors (ignoring any minimum
fee or zero rated fee required pursuant to the Fees Rules but taking
into account any applicable discount rate); and
(c) "TARIFF BASE" has the meaning given to it in, and will be calculated
in accordance with, the Fees Rules.
6. If requested by the Facility Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority, supply
to the Facility Agent, the rate of charge payable by that Reference Bank
to the Financial Services Authority pursuant to the Fees Rules in respect
of the relevant financial year of the Financial Services Authority
(calculated for this purpose by that Reference Bank as being the average
of the Fee Tariffs applicable to that Reference Bank for that financial
year) and expressed in pounds per GBP 1,000,000 of the Tariff Base of that
Reference Bank.
119
7. Each Lender shall supply any information required by the Facility Agent
for the purpose of calculating its Additional Cost Rate. In particular,
but without limitation, each Lender shall supply the following information
on or prior to the date on which it becomes a Lender:
(a) the jurisdiction of its Lending Office; and
(b) any other information that the Facility Agent may reasonably require
for such purpose.
Each Lender shall promptly notify the Facility Agent of any change to the
information provided by it pursuant to this paragraph.
8. The rates of charge of each Reference Bank for the purpose of E above
shall be determined by the Facility Agent based upon the information
supplied to it pursuant to paragraphs 6 above.
9. The Facility Agent shall have no liability to any person if such
determination results in an Additional Cost Rate which over or under
compensates any Lender and shall be entitled to assume that the
information provided by any Lender or Reference Bank pursuant to
paragraphs 3, 6 and 7 above is true and correct in all respects.
10. The Facility Agent shall distribute the additional amounts received as a
result of the Mandatory Cost to the Lenders on the basis of the Additional
Cost Rate for each Lender based on the information provided by each Lender
and each Reference Bank pursuant to paragraphs 3, 6 and 7 above.
11. Any determination by the Facility Agent pursuant to this Schedule in
relation to a formula, the Mandatory Cost, an Additional Cost Rate or any
amount payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all parties.
12. The Facility Agent may from time to time, after consultation with the
Parent and the Lenders, determine and notify to all parties any amendments
which are required to be made to this Schedule in order to comply with any
change in law, regulation or any requirements from time to time imposed by
the Bank of England, the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces all or
any of its functions) and any such determination shall, in the absence of
manifest error, be conclusive and binding on all parties.
120
SIGNATORIES TO THE FACILITIES AGREEMENT
PARENT
AGZ HOLDING
By: ________________________
NOTICE DETAILS
Address: 43 avenue de l'Opera
75002 Paris
France
Facsimile: 33 1 55 77 91 28
Attention: Finance Director
ANTARGAZ
By: ________________________
NOTICE DETAILS
Address: Immeuble Les Renardieres
3, place de Saverne
92400 Courbevoie
Facsimile: 33 1 41 88 73 13
Attention: Finance Director
ARRANGER, LENDER, FACILITY AGENT AND SECURITY AGENT
CREDIT LYONNAIS
By: ________________________
NOTICE DETAILS
Address: Investment / Banking / DPID / Leveraged Finance
81/83, rue de Richelieu,
75002 Paris
France
Facsimile: +33 1 42 95 14 72 / 88 21
Attention: Jerome Del Ben
Brigitte Chalaud
121