EXHIBIT 10.1(a)
Dated 15 January 2004
AGZ HOLDING
as Parent
ANTARGAZ
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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AMENDMENT AGREEMENT RELATING TO A
SENIOR FACILITIES AGREEMENT DATED 26 JUNE 2003 AS AMENDED AND RESTATED
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Shearman & Sterling LLP
Paris
[MAP]
CONTENTS
PAGE
CLAUSE
1. INTERPRETATION....................................................................... 3
2. AMENDMENTS TO THE FACILITIES AGREEMENT............................................... 3
3. STATUS OF DOCUMENTS.................................................................. 4
3.1 FACILITIES AGREEMENT....................................................... 4
3.2 FINANCE DOCUMENT........................................................... 4
4. REPRESENTATIONS AND WARRANTIES....................................................... 4
4.1 RELIANCE................................................................... 4
4.2 POWERS AND CAPACITY........................................................ 4
4.3 AUTHORISATION.............................................................. 4
4.4 NO CONTRAVENTION........................................................... 4
4.5 OBLIGATIONS BINDING........................................................ 5
4.6 CONSENTS................................................................... 5
4.7 NO DEFAULT................................................................. 5
5. INVALIDITY OF ANY PROVISION.......................................................... 5
6. GOVERNING LAW AND SUBMISSION TO JURISDICTION......................................... 5
6.1 GOVERNING LAW.............................................................. 5
6.2 SUBMISSION TO JURISDICTION................................................. 5
SCHEDULE 1............................................................................... 7
ii
THIS AMENDMENT AGREEMENT is made on [___] January, 2004
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:
(A) The parties to this agreement are parties to a senior facilities agreement
dated 26 June 2003 as amended and restated by (i) an amendment and
restatement agreement dated 2 July 2003 and (ii) an amendment agreement
dated 1 August 2003, pursuant to which the Lenders agreed to make
available to the Parent a EUR 220,000,000 term facility and to the
Borrowers a EUR 50,000,000 revolving facility (the "FACILITIES
AGREEMENT").
(B) The parties to this agreement have agreed to enter into this agreement in
order to amend the terms of the Facilities Agreement in the manner set out
below.
NOW IT IS HEREBY AGREED:
1. INTERPRETATION
In this agreement:
(a) words and expressions defined in the Facilities Agreement shall,
unless otherwise defined herein or save to the extent the context
otherwise requires, have the same meaning when used herein;
(b) the provisions of Clauses 1.2 (Construction) and 1.3 (Other
References) of the Facilities Agreement will be deemed to be set out
in full in this agreement, but as if references in those clauses to
the Facilities Agreement were references to this agreement.
2. AMENDMENTS TO THE FACILITIES AGREEMENT
Clause 11.3(b)(i) (Change of Control) shall be amended from (and
including) the date hereof:
(a) by adding the following words and expressions in the end of
paragraph (E):
", provided however that a Change of Control will not occur in the
event that a third party being neither the Parent nor any of its
Subsidiaries makes the Change of Control Offer as defined in the
High Yield Documents and purchases all High Yield Notes tendered
under the conditions set forth in Section 4.19, and in particular
paragraph (g), of the High Yield Trust Deed;"
(b) by adding the following words and expressions in the end of the last
paragraph:
"and if a Change of Control is triggered by the occurrence under the
High Yield Documents of a Change of Control as defined in the High
Yield Documents referred to in paragraph (E) above, the date of such
Change of Control shall be the date the Parent or any of its
Subsidiaries makes the Change of Control Offer under the High Yield
Documents or purchases all or part of the High Yield Notes."
3. STATUS OF DOCUMENTS
3.1 FACILITIES AGREEMENT
Except as varied by the terms of this agreement, the Facilities Agreement
will remain in full force and effect and any reference in the Facilities
Agreement to "this Agreement", "herein", "Senior Facilities Agreement" and
similar references or to any provision of the Facilities Agreement will be
construed as a reference to the Facilities Agreement, or that provision,
as amended by this agreement.
3.2 FINANCE DOCUMENT
This agreement will constitute a Finance Document for the purposes of the
Facilities Agreement.
4. REPRESENTATIONS AND WARRANTIES
4.1 RELIANCE
Each Obligor represents and warrants as set out in the following
provisions of this clause 4 and acknowledges that each Finance Party has
entered into this agreement and has agreed to the amendment and other
matters effected by this agreement in full reliance on those
representations and warranties.
4.2 POWERS AND CAPACITY
Each Obligor has the power and capacity to enter into and comply with its
obligations under this agreement.
4.3 AUTHORISATION
Each Obligor has taken (or will take within any requisite time period) all
necessary action:
(a) to authorise the entry into of and compliance with its obligations
under this agreement;
(b) to ensure that its obligations under this agreement are valid,
legally binding and enforceable in accordance with their terms;
(c) to make this agreement admissible in evidence in the courts of
France (other than a certified translation of this agreement into
French).
4.4 NO CONTRAVENTION
The entry into by the Obligors, the exercise of its rights under and the
compliance with its obligations under this agreement do not:
(a) contravene any law, regulation, judgment or order to which any Group
Company is subject;
(b) conflict with its constitutional documents; or
(c) breach any agreement or the terms of any consent binding upon any
Group Company or any assets of any Group Company.
4.5 OBLIGATIONS BINDING
The obligations expressed to be assumed by the Obligors under this
agreement constitute or when executed will constitute its valid and
legally binding obligations and are enforceable in accordance with their
terms (subject to any applicable insolvency, bankruptcy or similar laws
affecting creditors' rights generally).
4.6 CONSENTS
All consents and filings required for the entry into of this agreement and
the performance by the Obligors of their obligations hereunder have been
obtained (or, where applicable, will be obtained within the required time
period) and are in full force and effect.
4.7 NO DEFAULT
(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
consequence of which could reasonably be expected to have a Material
Adverse Effect.
5. 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.
6. GOVERNING LAW AND SUBMISSION TO JURISDICTION
6.1 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.
6.2 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 and determining any dispute arising
out of this agreement and for the purpose of enforcement of any judgement
against its assets.
Executed on the date first written above, in six (6) original copies.
THE PARENT
AGZ HOLDING
By:___________________________
ANTARGAZ
By:___________________________
ARRANGER, LENDER, FACILITY AGENT AND SECURITY AGENT
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CREDIT LYONNAIS
By: Jerome Del Ben
SCHEDULE 1
LENDERS
Credit Lyonnais S.A.
BNP Paribas
Credit Industriel et Commercial
Deutsche Bank AG, London
ING Bank (France) SA
Sumitomo Mitsui Banking Corporation
WestLB AG
AIB Capital Markets plc
Bank of Scotland
CDC IXIS
Compagnie Financiere du Credit Mutuel
Credit Agricole d'Ile de France
Credit du Nord
IKB Deutsche Industriebank AG
Lloyds TSB Bank PLC, Brussels Branch