EXHIBIT 10.4
Dated as of 7 July 2003
AGZ HOLDING
as Parent
ANTARGAZ
AGZ FINANCE
as High Yield Issuer
THE ENTITIES NAMED HEREIN
as Senior Lenders
THE ENTITIES NAMED HEREIN
as Investors
CREDIT LYONNAIS
as Facility Agent
CREDIT LYONNAIS
as Security Agent
CERTAIN OTHER PARTIES NAMED HEREIN
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INTERCREDITOR AGREEMENT
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Shearman & Sterling LLP
Paris
[MAP]
CONTENTS
CLAUSE PAGE
1. INTERPRETATION............................................................. 1
2. RANKING OF DEBT............................................................ 8
3. HEDGING LIABILITIES........................................................ 8
4. INVESTOR DEBT.............................................................. 9
5. INTRA-GROUP DEBT AND VALUE TRANSFERS....................................... 10
6. TURNOVER................................................................... 13
7. PRIORITY OF SECURITY....................................................... 14
8. ENFORCEMENT OF SECURITY.................................................... 14
9. APPLICATION OF RECOVERIES.................................................. 15
10. STATUS OF OBLIGORS......................................................... 17
11. CONSENTS AND WAIVERS UNDER SENIOR FINANCE DOCUMENTS........................ 17
12. REPRESENTATIONS AND WARRANTIES............................................. 17
13. INFORMATION AND CO-OPERATION............................................... 17
14. HEDGING LENDERS............................................................ 18
15. LOSS SHARING............................................................... 19
16. APPOINTMENT AND DUTIES OF SECURITY AGENT................................... 21
17. COSTS AND EXPENSES......................................................... 26
18. NOTICES.................................................................... 26
19. CHANGES TO PARTIES......................................................... 27
20. MISCELLANEOUS.............................................................. 28
21. GOVERNING LAW AND SUBMISSION TO JURISDICTION............................... 29
SCHEDULE 1...................................................................... 30
The Investors................................................................... 30
SCHEDULE 2...................................................................... 31
Creditor Accession Agreement.................................................... 31
SCHEDULE 3...................................................................... 34
Obligor Accession Agreement..................................................... 34
THIS AGREEMENT is made on 7 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) AGZ FINANCE (a company incorporated under the laws of the Grand Duchy of
Luxembourg as a societe anonyme with registered number RC Luxembourg B
87.750) (the "HIGH YIELD ISSUER");
(4) THE SENIOR LENDERS (as defined below);
(5) THE INVESTORS (as defined below);
(6) CREDIT LYONNAIS as facility agent for the Senior Lenders under the Senior
Finance Documents (the "FACILITY AGENT"); and
(7) CREDIT LYONNAIS as security agent for the Finance Parties under the
Security Documents (the "SECURITY AGENT").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this agreement:
"BENEFICIARY" means a Finance Party in its capacity as a beneficiary of
security held on its behalf by the Security Agent;
"BORROWERS" means the Parent, Antargaz and each other Group Company which
becomes a borrower under any Senior Finance Document;
"CLAWBACK" means any payment or repayment by any of the Senior Lenders,
the Hedging Lenders, the Investors or the Intra-Group Creditors (as the
case may be) of moneys received (whether or not in breach of any provision
of any of the Senior Finance Documents) in or towards the payment and
discharge of any of the Senior Debt, the Investor Debt or the Intra-Group
Debt (as the case may be) required by any agreement, law or regulation;
"CONSTITUTIONAL DOCUMENTS" means the constitutional documents of the
Parent in the agreed form;
"CREDITOR ACCESSION AGREEMENT" means a properly authorised and executed
agreement substantially in the form set out in schedule 2;
"CREDITORS" means each Finance Party and each Investor;
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"DEBT" means the Senior Debt, the Investor Debt and:
(a) when used in clause 2 (Ranking of Debt), the High Yield Intra-Group
Debt; and
(b) when used in any other provision of this agreement, the Intra-Group
Debt;
"DEFAULT" has the meaning given to it in the Senior Facility Agreement;
"DEFAULT RATE" means the rate at which default interest is payable under
clause 7.4 (Default interest) of the Senior Facility Agreement;
"DESIGNATED PAYEE" means the Security Agent;
"EARLY TERMINATION DATE" means an Early Termination Date (as defined in a
Hedging Document) resulting from an Event of Default (as defined in the
relevant Hedging Document);
"ENFORCEMENT ACTION" means:
(a) in relation to any Debt (other than the Hedging Debt) any action
whatsoever to:
(i) declare prematurely due and payable or otherwise seek to
accelerate payment of or place on demand all or any part of
the Debt;
(ii) recover all or any part of the Debt (including by exercising
any right of set-off or combination of accounts);
(iii) exercise or enforce any security right against sureties or any
other rights under any other document or agreement in relation
to (or given in support of) all or any part of the Debt
(including under the Security Documents);
(iv) petition for (or take any other steps which may lead to) an
Insolvency Event in relation to any Group Company; or
(v) commence legal proceedings against any Group Company; and
(b) in relation to the Hedging Debt:
(i) any action to declare an Early Termination Date under any
Hedging Agreement or demand payment of any amount which would
become payable following an Early Termination Date; or
(ii) the occurrence of an Early Termination Date as a result of
Automatic Early Termination for which an Obligor is the
Defaulting Party (and for this purpose "EARLY TERMINATION
DATE", "AUTOMATIC EARLY TERMINATION" and "DEFAULTING PARTY"
shall have the meanings given to them in the ISDA Master
Agreement);
"ENFORCEMENT DATE" means the date on which a Finance Party first takes
Enforcement Action in accordance with this agreement;
"FINANCE PARTIES" has the meaning given to it in the Senior Facility
Agreement;
"GUARANTORS" means the Parent, Antargaz and each other Group Company which
becomes a guarantor under any Senior Finance Document;
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"HEDGING AGREEMENTS" has the meaning given to it in the Senior Facility
Agreement;
"HEDGING DEBT" means all liabilities due to any Hedging Lender under any
Hedging Agreement;
"HEDGING LOSS" means the loss suffered by a Hedging Lender as a result of
any relevant Hedging Agreement being terminated in accordance with clause
3.3(b) (Permitted Hedging Enforcement Action) such loss being calculated
in accordance with the Market Quotation and Second Method as contemplated
by the ISDA Master Agreement as at the Enforcement Date;
"HEDGING RECOVERIES" means the aggregate of all moneys received or
recovered (whether by set-off, combination, netting of payments or
otherwise) from time to time by any of the Hedging Lenders on or after the
Enforcement Date from any Group Company or other person under or in
connection with any of the Hedging Agreements;
"HIGH YIELD DEBT" means all money and liabilities now or in the future
due, owing or incurred by any Obligor under any High Yield Documents in
any currency, whether actual or contingent, whether incurred solely or
jointly with any other person and whether as principal or surety, together
with all accruing interest and all related losses and charges incurred
under any agreement evidencing High Yield Debt;
"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 INTRA-GROUP BOND DOCUMENTS" means the terms and conditions of
the Intra-Group Bonds set out in the Parent's resolution having decided on
their issue and all related and ancillary documents;
"HIGH YIELD INTRA-GROUP BONDS" means the subordinated bonds issued by the
Parent to the High Yield Issuer in an aggregate principal amount equal to
the aggregate principal amount of the High Yield Notes;
"HIGH YIELD INTRA-GROUP DEBT" means all money and liabilities now or in
the future due, owing or incurred by the Parent under the High Yield
Intra-Group Bond Documents in any currency, whether actual or contingent,
whether incurred solely or jointly with any other person and whether as
principal or as surety, together with all accruing interest and all
related losses and charges incurred under any agreement evidencing High
Yield Intra-Group Debt;
"HIGH YIELD MATURITY DATE" means 19 July 2011;
"HIGH YIELD NOTES" means the high yield notes issued by the High Yield
Issuer on 23 July 2002 in an aggregate principal amount of E 165,000,000;
"HIGH YIELD TRUST DEED" means the trust deed and/or other instrument
pursuant to which the High Yield Notes are 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;
"INSOLVENCY EVENT" means any of the events described in clauses 20.1(e)
(Insolvency) to (k) (Similar Events Elsewhere) (inclusive) of the Senior
Facility Agreement;
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"INTRA-GROUP CREDITORS" means any Group Companies which are creditors in
relation to any Intra-Group Debt (including without limitation the High
Yield Issuer);
"INTRA-GROUP DEBT" means any money or liabilities now or in the future due
or owing to or incurred from a Group Company by the Parent (including
without limitation the High Yield Intra-Group Debt) in any currency,
whether actual or contingent, whether incurred solely or jointly with any
other person and whether as principal or surety, together with all
accruing interest and all related costs, charges and expenses and any
Reports Loan (including any reinstatement of such liabilities resulting
from the operation of a Clawback);
"INTRA-GROUP RECOVERIES" means the aggregate of all assets received or
recovered and all monies received or recovered (whether by set-off,
combination, netting of payments or otherwise) from time to time by any
Intra-Group Creditor in connection with any Intra-Group Debt from any
Group Company or other person;
"INVESTOR DEBT" means all money and liabilities now or in the future due,
owing or incurred to any Investor by any Group Company under any Investor
Document in any currency, whether actual or contingent, whether incurred
solely or jointly with any other person and whether as principal or
surety, together with all accruing interest and all related costs, charges
and expenses;
"INVESTOR DOCUMENTS" means the Shareholders Agreement, the Constitutional
Documents and any other document or agreement (including constitutional
documents and minutes of meetings of shareholders of any member of the
Group) providing for the payment of any amount by any member of the Group
to an Investor in its capacity as such;
"INVESTOR RECOVERIES" means the aggregate of all distributions (whether in
cash or in kind) and all monies received or recovered (whether by set-off,
combination, netting of payments or otherwise) from time to time by any
Investor under or in connection with any of the Investor Documents and the
Investor Debt from any Group Company;
"INVESTORS" means P.A.I., U.G.I. and Medit and any assignee or transferee
of any of their respective interests under or in respect of the Investor
Documents;
"ISDA MASTER AGREEMENT" means the 1992 or the 2002 Multicurrency - Cross
Border Master Agreement published by the International Swaps and
Derivatives Association;
"MAJORITY SENIOR CREDITORS" means, at any time, Finance Parties whose
Senior Credit Participations at that time aggregate more than 66.66 per
cent of the total Senior Credit Participations at that time;
"MAJORITY SENIOR LENDERS" means the Majority Lenders under and as defined
in the Senior Facility Agreement;
"MEDIT" means Medit Mediterranea GPL SpA or any of its Affiliates;
"OBLIGOR ACCESSION AGREEMENT" means an agreement substantially in the form
set out in schedule 3 under which a Group Company becomes a party to this
agreement;
"OBLIGORS" means the Parent, each Borrower, each Guarantor, the High Yield
Issuer and each other Group Company which has any obligation to any
Finance Party under any Senior Finance Document;
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"OUTSTANDINGS" means, in relation to a Senior Lender at any time, the
aggregate of that Senior Lender's participation in all Drawings
outstanding at that time (including interest on those Drawings and all
Contingent Liabilities and amounts due and payable (but unpaid) by the
Parent under the Hedging Agreements);
"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 other fund or entity which is established and
managed or advised by P.A.I. Partners;
"PERMITTED HEDGING PAYMENTS" means payments permitted under clause 3.1(a)
(Prohibited Hedging Payments, Guarantees and Security);
"PERMITTED INTRA-GROUP ENFORCEMENT ACTION" means Enforcement Action
permitted under clause 5.5 (Permitted Intra-Group Enforcement Action);
"PERMITTED INTRA-GROUP PAYMENTS" means payments permitted under clause 5.2
(Permitted Intra-Group Payments) or clause 5.6 (Value Transfers) (but
excluding for the avoidance of doubt any such payment received pursuant to
any Enforcement Action);
"PERMITTED INVESTOR PAYMENTS" means payments permitted under clause 4.2
(Permitted Investor Payments);
"RECOVERIES" means the aggregate of:
(a) the Senior Recoveries;
(b) the Hedging Recoveries;
(c) the Reports Recoveries;
(d) the Investor Recoveries;
(e) the Intra-Group Recoveries; and
(f) payments to the Designated Payee under clause 6 (Turnover) and all
moneys received or recovered under any of the Security Documents
(whether as a result of any enforcement of security or other action
under such documents);
"REPORTS LOAN" has the meaning given to it in clause 9.2 (Application of
Reports Recoveries);
"REPORTS RECOVERIES" has the meaning given to it in clause 9.2
(Application of Reports Recoveries);
"SECURITY DOCUMENTS" has the meaning given to it in the Senior Facility
Agreement;
"SECURITY INTEREST" has the meaning given to it in the Senior Facility
Agreement;
"SENIOR ACCELERATION NOTICE" means a demand by the Facility Agent under
clause 20.2 (Cancellation and repayment) of the Senior Facility Agreement;
"SENIOR COMMITMENT" means:
(a) in relation to a Senior Lender which is not a Hedging Lender, the
aggregate of its Commitments under the Senior Facility Agreement;
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(b) in relation to a Senior Lender which is also a Hedging Lender, the
aggregate of its Commitments under the Senior Facility Agreement and
its Hedging Loss; and
(c) in relation to a Senior Lender which is only a Hedging Lender, its
Hedging Loss.
"SENIOR CREDIT PARTICIPATION" means, in relation to a Finance Party, the
aggregate of:
(a) its Term Commitments (as defined in the Senior Facility Agreement)
(if any);
(b) its Revolving Commitment (as defined in the Senior Facility
Agreement) (if any); and
(c) the Settlement Amounts, if any, which would be payable to it under
any Hedging Agreement if the date on which the calculation is made
was deemed to be an Early Termination Date for which the relevant
Obligor is the Defaulting Party (and for this purpose "SETTLEMENT
AMOUNT" and "DEFAULTING PARTY" shall have the meanings given to them
in the relevant Hedging Agreement) such amount to be certified by
the relevant Finance Party in reasonable detail (including the
quotations obtained in connection therewith);
"SENIOR DEBT" means all money and liabilities now or in the future due,
owing or incurred to any Finance Party by any Obligor under any Senior
Finance Document in any currency, whether actual or contingent, whether
incurred solely or jointly with any other person and whether as principal
or surety, together with all accruing interest and all related losses and
charges (including any increase or reinstatement of such liabilities
resulting from the operation of a Clawback);
"SENIOR DECLARED DEFAULT" means a Default which has resulted in the
Facility Agent exercising any of its rights under clause 20.2
(Cancellation and Repayment) of the Senior Facility Agreement;
"SENIOR DISCHARGE DATE" means the date on which all Senior Debt has been
fully discharged and all commitments of the Finance Parties to the
Obligors have expired in accordance with the Senior Finance Documents;
"SENIOR FACILITY AGREEMENT" means the facilities agreement dated 26 June
2003, as amended on 2 July 2003, under which the Senior Lenders agreed to
make available a term credit facilities of E 220,000,000 and revolving
credit facility of E 50,000,000 to the Borrowers (as defined therein);
"SENIOR FINANCE DOCUMENTS" has the meaning given to it in the Senior
Facility Agreement;
"SENIOR LENDER" means a Lender under, and as defined in, the Senior
Facility Agreement;
"SENIOR PAYMENT DEFAULT" means a failure by an Obligor to pay any sum
under any Senior Finance Document;
"SENIOR RECOVERIES" means the aggregate of all assets received or
recovered and all monies received or recovered (whether by set-off,
combination, netting of payments or otherwise) from time to time by any
Senior Lender in relation to any Senior Debt on or after the Enforcement
Date from any Obligor, Group Company or other person, except amounts
received by any Senior Lenders in accordance with the Senior Facility
Agreement and clause 9 (Application of Recoveries) and/or clause 15.3
(Loss Sharing) of this agreement;
"SHAREHOLDERS AGREEMENT" has the meaning given to it in the Senior
Facility Agreement;
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"SPECIFIED DEFAULT" means, in relation to a Hedging Document:
(a) the failure by a Borrower to make a payment due under the relevant
Hedging Document on its due date or within any applicable grace
period;
(b) the occurrence of any of the Events of Default specified in clauses
20.1(a) (Payment default), (b)(i) (Breach of other Obligations) or
(c) (Insolvency) to (1) (Cessation of business) (inclusive) of the
Senior Facility Agreement; or
(c) the occurrence of an Illegality or a Tax Event (each as defined in
the ISDA Master Agreement);
"TRANSFEREE" has the meaning given to it in clause 19.2(a)(Assignments and
Transfers by Creditors);
"TRANSFEROR" has the meaning given to it in clause 19.2(a) (Assignments
and Transfers by Creditors); and
"U.G.I." means UGI France, Inc. a company incorporated under the laws of
Delaware, USA, which is a Subsidiary of UGI Corporation, or any of its
Affiliates.
1.2 CONSTRUCTION
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 a Senior Finance Document) 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 Senior provision of any Finance
Document;
(d) a reference to a statute, other legislation or accounting standard
or any provision thereof is to be construed as a reference to that
statute, other legislation 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;
(g) words importing the plural shall include the singular and vice
versa; and
(h) words and expressions defined in the Senior Facility Agreement shall
have the same meanings when used in this agreement.
1.3 MAJORITY CONSENTS
Any consent required to be given under this agreement by the Facility
Agent will only be given upon the instructions of the Majority Senior
Creditors, unless otherwise specified.
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2. RANKING OF DEBT
The Debt will rank for all purposes and at all times in the following
order:
(a) first, the Senior Debt;
(b) second, the High Yield Intra-Group Debt; and
(c) third, the Investor Debt.
3. HEDGING LIABILITIES
3.1 PROHIBITED HEDGING PAYMENTS, GUARANTEES AND SECURITY
Until after the Enforcement Date:
(a) no Obligor will make any payment or distribution in respect of any
Hedging Debt, except for:
(i) scheduled payments arising under the original terms of the
relevant Hedging Agreement; and
(ii) any payment made within the period of four months following
the date of this Agreement for the purposes of any adjustment
in the interest rate hedging under the Hedging Agreements to a
coverage level no lower than that referred to in 19.5(d)(ii)
(Hedging) of the Senior Facility Agreement; and
(b) no Obligor will and each Obligor will procure that none of its
Subsidiaries will, create or permit to subsist, and no Hedging
Lender will receive from any Group Company, any Security Interest
over any asset of any Group Company or give or permit to subsist any
guarantee in respect of any part of the Hedging Debt, other than
under the Security Documents,
in either case, without the prior consent of the Facility Agent.
3.2 RESTRICTIONS ON HEDGING ENFORCEMENT ACTION
Subject to clauses 3.3 (Permitted Hedging Enforcement Action) and 8
(Enforcement of Security), no Hedging Lender may take Enforcement Action
in relation to any Hedging Debt, unless a Senior Declared Default has
occurred.
3.3 PERMITTED HEDGING ENFORCEMENT ACTION
(a) If a Specified Default occurs, a Hedging Lender may exercise its
rights to designate an Early Termination Date in accordance with the
relevant Hedging Agreement or otherwise terminate the relevant
Hedging Agreement, provided that no other Enforcement Action is
taken.
(b) If a Senior Declared Default has occurred, each Hedging Lender will
promptly following request by the Security Agent designate an Early
Termination Date or otherwise terminate each Hedging Agreement to
which it is a party.
(c) On or following the designation of an Early Termination Date under
clause 3.3(a) or (b), any amount which falls due from a Hedging
Lender to any Group Company shall be paid by that Hedging Lender to
the Security Agent for application under clause 9 (Application of
Recoveries).
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4. INVESTOR DEBT
4.1 PROHIBITED INVESTOR PAYMENTS, GUARANTEES AND SECURITY
Subject to clause 4.2 (Permitted Investor Payments), until the Senior
Discharge Date:
(a) no Obligor will, and each Obligor will procure that none of its
Subsidiaries will, make, and no Investor will receive, any payment,
dividend or distribution of any kind whatsoever in respect or on
account of the Investor Debt; and
(b) no Obligor will, and each Obligor will procure that none of its
Subsidiaries will, create or permit to subsist, and no Investor will
receive from any Group Company, any Security Interest over any asset
of any Group Company or give or permit to subsist any guarantee in
respect of any part of the Investor Debt,
in each case, without the prior consent of the Facility Agent.
4.2 PERMITTED INVESTOR PAYMENTS
Subject to clause 4.3 (Suspension of Permitted Investor Payments) the
Parent may make any Restricted Payments (as defined in the Senior Facility
Agreement) in accordance with, and subject to, the provisions of clause
19.9(c) of the Senior Facility Agreement.
4.3 SUSPENSION OF PERMITTED INVESTOR PAYMENTS
Without the prior consent of the Facility Agent, no payment which would
otherwise be permitted under clause 4.2 (Permitted Investor Payments) may
be made (or demand for payment by an Investor made) following the
occurrence of a Major Default (as defined in the Senior Facility
Agreement), so long as it is continuing.
4.4 RESTRICTIONS ON INVESTOR ENFORCEMENT ACTION
(a) Subject to clauses 4.4(b) and 4.5 (Permitted Investor Enforcement
Action), until after the Senior Discharge Date, no Investor may take
Enforcement Action in relation to any Investor Debt without the
prior consent of the Facility Agent.
(b) Each Investor will, if required to do so by the Facility Agent, take
Enforcement Action in respect of the Investor Debt and will apply
any proceeds from such Enforcement Action in accordance with clause
6 (Turnover).
4.5 PERMITTED INVESTOR ENFORCEMENT ACTION
The restrictions in clause 4.4(a) (Restrictions on Investor Enforcement
Action) will not apply to the Investors if an order is made for the
winding up (liquidation) of the Parent, except that in these circumstances
the Investors may only exercise the rights set out in paragraph (a)(i) of
the definition of Enforcement Action in clause 1.1 (Definitions).
4.6 NO REDUCTION OR DISCHARGE
As between the Parent and the Investors, the Investor Debt will be deemed
not to have been reduced or discharged to the extent of any payment or
distribution to the Security Agent under clause 6 (Turnover).
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4.7 AMENDMENTS TO INVESTOR DOCUMENTS
No Obligor nor any Investor will, on or before the Senior Discharge Date,
without the prior consent of the Facility Agent:
(a) agree to or take any action which would make any principal,
interest, distribution or other sum payable under any Investor
Document on a date earlier or more frequently than that provided in
the relevant Investor Document at the date of this agreement, save
for the purposes of any payment permitted under clause 4.2
(Permitted Investor Payments);
(b) agree to or take any action to amend any Investor Document which
would result in any Obligor being subject to more onerous
obligations (including financial covenants) as a whole than those
existing at the date of this agreement or which would conflict with
any provision of this agreement; or
(c) charge, assign or otherwise transfer rights and/or obligations under
any Investor Document, unless simultaneously with that charge,
assignment or transfer the relevant transferee agrees to be bound by
the provisions of this agreement by entering into a Creditor
Accession Agreement.
5. INTRA-GROUP DEBT AND VALUE TRANSFERS
5.1 PROHIBITED INTRA-GROUP PAYMENTS, GUARANTEES AND SECURITY
Subject to clauses 5.2 (Permitted Intra-Group Payments) and 5.6 (Value
Transfers), until after the Senior Discharge Date:
(a) no Obligor will, and each Obligor will procure that none of its
Subsidiaries will, make, and no Intra-Group Creditor will receive,
any payment or distribution of any kind whatsoever in respect or on
account of the Intra-Group Debt (including without limitation the
High Yield Intra-Group Debt); and
(b) no Obligor will, and each Obligor will procure that none of its
Subsidiaries will, create or permit to subsist, and no Intra-Group
Creditor will receive from any Group Company, any Security Interest
over any asset of any Group Company or give or permit to subsist any
guarantee in respect of any part of the Intra-Group Debt (including
without limitation the High Yield Intra-Group Debt),
in each case without the prior consent of the Facility Agent.
5.2 PERMITTED INTRA-GROUP PAYMENTS
Subject to clause 5.3 (Suspension of Permitted Intra-Group Payments):-
(a) in the case of Intra-Group Debt (other than the High Yield
Intra-Group Debt), a Group Company may pay interest on, repay or
prepay principal of or make any other payment due in respect of any
Intra-Group Debt and an Intra-Group Creditor may receive any such
sum;
(b) in the case of High Yield Intra-Group Debt, the Parent may make
payments to the High Yield Issuer in respect of:
(i) semi-annual interest (but not principal) at a rate not
exceeding 0.130 per cent, per annum above the aggregate
interest rate payable by the High Yield Issuer in cash on the
High Yield Notes in order to enable the High Yield Issuer to
make a payment of
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interest in respect of the High Yield Notes and which falls
due for payment within five Business Days of receipt of the
corresponding payment by the High Yield Issuer;
(ii) amounts equal to taxes payable by the High Yield Issuer in
respect of payments of interest on any High Yield Debt
(including in respect of any withholding or deduction of any
amount for or on account of applicable taxes); and
(iii) repayment of the principal amount of the High Yield
Intra-Group Debt on or at any time after the High Yield
Maturity Date.
5.3 SUSPENSION OF PERMITTED INTRA-GROUP PAYMENTS
(a) No payment which would otherwise be permitted under clause 5.2(a)
(Permitted Intra-Group Payments) may be made (or demand for
repayment by an Intra-Group Creditor made) following the occurrence
of a Default without the prior consent of the Facility Agent.
(b) No payment which would otherwise be permitted under clause 5.2(b)
(Permitted Intra-Group Payments) in respect of the High Yield
Intra-Group Debt or clause 5.6 (Value Transfers) may be made (or
demand for repayment by the High Yield Issuer made) without the
prior consent of the Majority Senior Creditors:
(i) if a Senior Payment Default occurs, from the date of such
Senior Payment Default until the date the Facility Agent
notifies the Parent and the High Yield Issuer that the Senior
Payment Default has been waived or remedied (and the Facility
Agent undertakes to provide such notification promptly after
the Facility Agent becomes aware that the Senior Payment
Default has been waived or remedied); and
(ii) if a Default other than a Senior Payment Default occurs, from
the date the Facility Agent serves a notice (a "PAYMENT
BLOCKAGE NOTICE") on the Parent and the High Yield Issuer
suspending payments under the High Yield Intra-Group Bond
Documents until the earliest of:-
(A) the date falling 179 days after service of the Payment
Blockage Notice;
(B) the date the Facility Agent notifies the Parent and the
High Yield Issuer in writing that the Default has been
waived or remedied or has ceased to exist; and
(C) the Senior Discharge Date,
provided that a Payment Blockage Notice (other than the first
Payment Blockage Notice) may not be delivered:
(iii) unless and until 360 days have elapsed since delivery of the
immediately prior Payment Blockage Notice; or
(iv) in respect of circumstances which resulted in a Default which
was the subject of a previous Payment Blockage Notice.
5.4 RESTRICTION ON INTRA-GROUP ENFORCEMENT ACTION
(a) Subject to clause 5.4(b) and to clause 5.5 (Permitted Intra-Group
Enforcement Action), until after the Senior Discharge Date, no
Intra-Group Creditor may take Enforcement Action in
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relation to any Intra-Group Debt (including without limitation the
High Yield Intra-Group Debt) without the prior consent of the
Facility Agent.
(b) If a Senior Declared Default has occurred, each Intra-Group Creditor
(other than the High Yield Issuer) will take any Enforcement Action
in relation to the Intra-Group Debt which the Security Agent acting
on the instructions of the relevant Finance Parties directs it to
take.
5.5 PERMITTED INTRA-GROUP ENFORCEMENT ACTION
The restrictions in clause 5.4 (Restriction on Intra-Group Enforcement
Action) will not apply to the High Yield Issuer taking Enforcement Action
of a type set out in paragraph (a)(i) to (iii) of the definition of
Enforcement Action in clause 1.1 (Definitions) against the Parent in
respect of the High Yield Intra-Group Debt if there has been an event of
default under the High Yield Notes and, following that default and
provided it is then continuing unremedied and unwaived, the Intra-Group
Standstill Period has expired.
For the purposes of this clause 5.5, the "INTRA-GROUP STANDSTILL PERIOD"
means the period commencing on the date on which the Facility Agent has
received notice from the High Yield Issuer or the High Yield Trustee of
the relevant event of default under the High Yield Notes (the "DEFAULT
NOTIFICATION DATE") and ending on the first to occur of:
(a) the expiry of 179 days after the Default Notification Date;
(b) the date on which the Finance Parties apply to any applicable court
to enforce any of the security granted by the Parent under the
Security Documents (other than any such security in respect of
receivables, rights under the Acquisition Documents and the Special
Cash Collateral Account); and
(c) any of the following events:
(i) the shareholders or the directors of the Parent (other than at
the request of the beneficiaries of the High Yield Guarantee)
pass a resolution for the insolvency, dissolution, liquidation
or winding-up of the Parent; or
(ii) an order is made for the commencement of an insolvency
dissolution, liquidation, administration, winding-up or
similar proceeding relating to the Parent.
5.6 VALUE TRANSFERS
Subject to clause 5.3 (Suspension of Intra-Group Permitted Payments) and
except with the consent of the Facility Agent (prior to the Senior
Discharge Date), no Obligor shall, and each Obligor shall procure that
none of its Subsidiaries shall, make any payment to the High Yield Issuer
(whether of principal, interest or otherwise) or transfer any assets to
the High Yield Issuer, other than:
(a) payments permitted by clause 5.2 (Permitted Intra-Group Payments);
or
(b) unless a Default has occurred which is continuing, payments lawfully
made to the High Yield Issuer if and only to the extent that the
High Yield Issuer requires the monies for one or more of the
following purposes:
(i) legal fees and any filing, listing, registration or similar
fees, costs and expenses incurred in connection with the
issuing, listing and/or registration of any High Yield
Documents issued by the High Yield Issuer;
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(ii) fees, costs and expenses payable by the High Yield Issuer
under the High Yield Documents, or
(iii) fees, costs and expenses payable to auditors and legal
advisers of the High Yield Issuer and other operating costs
and expenses of the High Yield Issuer, in each case properly
incurred in the ordinary course of business,
provided that the aggregate of all such amounts paid in any
Financial Year of the Group shall not exceed E 200,0000 (or its
equivalent in other currencies) without the prior consent of the
Facility Agent and, if the sums to be paid under this clause 5.6(b)
exceed E 50,000 (or its equivalent) on any one occasion or aggregate
more than E 100,000 (or its equivalent) in any Financial Year, the
Parent has given not less than 10 Business Days' notice of the
proposed payment in writing to the Facility Agent.
5.7 AMENDMENTS TO HIGH YIELD INTRA-GROUP BOND DOCUMENTS
Neither the High Yield Issuer nor the Parent will, on or before the Senior
Discharge Date, without the prior consent of the Facility Agent:
(a) agree to or take any action which would make any principal,
interest, distribution or other sum payable under the High Yield
Intra-Group Bond Documents on a date earlier or more frequently than
that provided in the relevant High Yield Intra-Group Bond Document
at the date of this agreement;
(b) agree to or take any action to amend any High Yield Intra-Group Bond
Document which would result in the Parent being subject to more
onerous obligations as a whole than those existing at the date of
this agreement or which would conflict with any provision of this
agreement; or
(c) charge, assign or otherwise transfer rights and/or obligations under
any High Yield Intra-Group Bond Document.
6. TURNOVER
6.1 INTRA-GROUP CREDITORS' TURNOVER OBLIGATIONS
Each of the Intra-Group Creditors agrees with each of the Creditors and
hereby declares that, except for Permitted Intra-Group Payments, all
Intra-Group Recoveries (all together the "INTRA-GROUP CREDITOR TURNOVER
RECEIPTS") shall, during any period before the Senior Discharge Date, be
paid by the relevant Intra-Group Creditor to the Designated Payee for
application by the Designated Payee in accordance with clause 9
(Application of Recoveries), and that Intra-Group Creditor shall,
forthwith after receipt or discharge, pay, transfer, assign or deliver all
such Intra-Group Creditor Turnover Receipts to the Designated Payee.
6.2 INVESTOR TURNOVER OBLIGATIONS
Each of the Investors agrees with each of the other Creditors and hereby
declares that, except for Permitted Investor Payments, all Investor
Recoveries (all together the "INVESTOR TURNOVER RECEIPTS") shall, during
any period before the Senior Discharge Date, be paid by the Investor to
the Designated Payee for application by the Designated Payee in accordance
with clause 9 (Application of Recoveries) and that Investor shall,
forthwith after receipt or discharge, pay, transfer, assign or deliver all
such Investor Turnover Receipts to the Designated Payee.
6.3 HEDGING LENDERS' TURNOVER OBLIGATIONS
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Each of the Hedging Lenders agrees with the other Finance Parties and
hereby declares that, except for Permitted Hedging Payments, all Hedging
Recoveries, (all together the "HEDGING LENDER TURNOVER RECEIPTS") shall,
during any period before the Senior Discharge Date, be paid by the Hedging
Lender to the Designated Payee for application by the Designated Payee in
accordance with clause 9 (Application of Recoveries), and that Hedging
Lender shall, forthwith after receipt or discharge, pay, transfer, assign
or deliver all such Hedging Lender Turnover Receipts to the Designated
Payee.
6.4 REVIVAL OF LIABILITY
For the avoidance of doubt, amounts equal to any Intra-Group Creditor
Turnover Receipts, Investor Turnover Receipts and Hedging Lender Turnover
Receipts shall be treated as a Clawback and as such shall be reinstated
pro tanto as Intra-Group Debt, Investor Debt or Hedging Debt (as the case
may be). The Parent will fully indemnify each of the Hedging Lenders upon
demand if (and to the extent that) any purported re-instatement of a
Clawback as Hedging Debt contemplated by this clause 6.4 proves to be
ineffective for any reason.
6.5 PRESERVATION OF DEBT
Notwithstanding any term of this agreement postponing, subordinating or
preventing the payment of any of the High Yield Intra-Group Debt or the
Investor Debt, the High Yield Intra-Group Debt and the Investor Debt
concerned shall, solely as between the Obligors and the Investors, be
deemed to remain owing or due and payable in accordance with the terms of
the High Yield Intra-Group Bond Documents and the Investor Documents (as
the case may be) in order that interest and default interest and indemnity
payments will accrue thereon in accordance with and to the extent provided
for in the High Yield Intra-Group Bond Documents and the Investor
Documents respectively. No delay in exercising rights and remedies under
any of the High Yield Intra-Group Bond Documents or the Investor Documents
by reason of any term of this agreement postponing, restricting or
preventing such exercise shall operate as a permanent waiver or any of
those rights and remedies or otherwise deprive the High Yield Issuer or
any of the Investors (as the case may be) of any of their respective
rights against any Obligor or any other person.
7. PRIORITY OF SECURITY
7.1 RANKING
All guarantees, indemnities and security conferred on the Finance Parties
by the Security Documents will for all purposes and at all times secure
the Senior Debt only.
7.2 HEDGING LIABILITIES
The security constituted by the Security Documents shall secure the
Hedging Debt and the remainder of the Senior Debt on a pari passu basis.
8. ENFORCEMENT OF SECURITY
8.1 ENFORCEMENT BY THE SECURITY AGENT
The Security Agent shall act in relation to the Security Documents in
accordance with the instructions of the Majority Senior Creditors, which
shall override any conflicting instructions given by or on behalf of any
other person.
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8.2 EXEMPTION
No Finance Parties shall be responsible to the Investors or any other
person for any instructions given or not given to the Security Agent in
relation to the Security Documents, provided in each case they act in good
faith.
8.3 RELEASE OF SECURITY ON ENFORCEMENT
If, pursuant to or for the purpose of effecting any Enforcement Action
taken or to be taken by the Security Agent in accordance with the
provisions of this agreement, the Security Agent requires any release of
any guarantee or security granted by any Group Company or Obligor, each of
the parties to this agreement shall promptly enter into such documents as
the Security Agent shall reasonably require as being necessary to enable
such Enforcement Action to be effected.
8.4 AUTHORITY OF SECURITY AGENT
(a) If, in connection with any Enforcement Action:
(i) the Security Agent sells or otherwise disposes of (or proposes
to sell or otherwise dispose of) any asset under any Security
Document; or
(ii) a Group Company sells or otherwise disposes of (or proposes to
sell or otherwise dispose of) any asset at the request of the
Security Agent,
the Security Agent is hereby authorised by each Creditor and
Intra-Group Creditor:
(A) to release in any manner whatsoever any Security
Interest created by the Security Documents over the
relevant asset; and
(B) (if the relevant asset comprises all of the shares in
the capital of a Group Company) to release in any manner
whatsoever that Group Company from all past, present and
future liabilities (both actual and contingent) and/or
the obligations in its capacity as a Guarantor or
Borrower of the whole or any part of the financial
instruments account (or equivalent) of the Debt and to
release any Security Interest granted by that Group
Company over any asset under any Security Document.
(b) Each Creditor and Intra-Group Creditor hereby undertakes in favour
of the Security Agent to execute any releases or other documents and
take any action which the Security Agent may reasonably require in
order to give effect to the provisions of clause 8.4(a).
(c) The release of any Group Company as contemplated in clause 8.4(a)
will not affect or otherwise reduce the obligations and/or
liabilities of any other Group Company to the Creditors and
Intra-Group Creditor.
9. APPLICATION OF RECOVERIES
9.1 APPLICATION
All proceeds of enforcement of the security conferred by the Security
Documents, all recoveries by the Security Agent under guarantees of the
Debt and all amounts paid to the Designated Payee under this agreement
(whether under the turnover provisions or otherwise) shall be applied in
the following order:
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(a) first, in payment of unpaid fees, costs and expenses (including
interest on them recoverable under the Security Documents) incurred
by or on behalf of the Security Agent (and any adviser or agent
appointed by it) and the remuneration of the Security Agent and its
advisers and agents under the Security Documents;
(b) second, in payment of unpaid costs and expenses incurred by or on
behalf of the Finance Parties in connection with enforcement of the
Security Documents;
(c) third, in payment to the Facility Agent for application towards
unpaid and outstanding Senior Debt (including amounts due to the
Facility Agent); and
(d) fourth, in payment of the surplus (if any) to the Parent or other
person entitled to it (including any other Obligors).
PROVIDED THAT:
if the application of any recoveries ("AFFECTED RECOVERIES") under this
clause 9 in or towards the discharge of any Debt would result in or have
the effect of an unlawful payment or discharge then, subject to clause 15
(Loss Sharing), those Affected Recoveries will be applied in or towards
the discharge in full only of the Senior Debt (but subject at all times to
the provisions of this agreement) guaranteed or secured by the rights
(whether guarantee, indemnity or security) the enforcement or realisation
of which gave rise to the Affected Recoveries:
9.2 APPLICATION OF REPORTS RECOVERIES
If any of the Creditors (other than the Senior Lenders) receives any
money:
(a) before the Enforcement Date, as a result of making any claim for
costs, damages or other losses incurred in connection with any of
the transactions contemplated in any of the Senior Finance Documents
and the Transaction Documents in relation to any of the Reports
(such moneys, whether received before, on or after the Enforcement
Date, "REPORTS RECOVERIES"), it shall pay an amount equal to the
amount of such moneys (less the costs and expenses directly incurred
in making such claim) to the Parent by way of a loan (a "REPORTS
LOAN") (but subject at all times to the provisions of this
agreement) which shall form part of the liabilities owing to that
Creditor and, as such, shall be subordinated to and otherwise
restricted in accordance with the provisions of this agreement and
those moneys shall be applied in prepayment of the Senior Debt in
accordance with the Senior Facility Agreement as though such moneys
were Net Proceeds; or
(b) on or after the Enforcement Date, it shall pay an amount equal to
the Reports Recoveries (less the costs and expenses directly
incurred in making the relevant claim) to the Designated Payee for
application under clause 9.1 (Application), PROVIDED THAT, as
between the relevant Creditor and any Group Company such Reports
Recoveries shall be deemed to be the proceeds of a loan to the
relevant Group Company of an amount equal to such Reports Recoveries
for the purpose of assisting such Group Company to discharge its
obligations and liabilities in accordance with this agreement and
where such loan is repayable on demand (but subject at all times to
the provisions of this agreement) which shall form part of the Debt
owing to such Creditor and, as such, shall be subordinated in
accordance with the provisions of this agreement.
9.3 APPROPRIATIONS
Subject to clause 15 (Loss Sharing), each Creditor may (subject in each
case to the provisions of this agreement and the other Senior Finance
Documents) apply any moneys received under this agreement
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to any item of account or liability in respect of the indebtedness owed to
it, as the case may be, in such order or manner as it may determine (save
as expressly provided in the relevant Senior Finance Document); and
10. STATUS OF OBLIGORS
10.1 OBLIGORS' ROLE
Each Obligor and Investor is party to this agreement in order to
acknowledge the priorities, rights and obligations set out in this
agreement and undertakes not to take or agree to take any action which may
in any way prejudice or affect the enforcement of the provisions of this
agreement or do anything which would be inconsistent with any provision of
this agreement.
10.2 NO RIGHTS
No Obligor nor any Investor (except pursuant to clause 4.5 (Permitted
Investor Enforcement Action)) shall have any rights under this agreement
and none of the undertakings in this agreement on the part of the Finance
Parties (or deemed to be given) to or for the benefit of any Obligor or
Investor.
11. CONSENTS AND WAIVERS UNDER SENIOR FINANCE DOCUMENTS
If a Finance Party or the Majority Senior Creditors (as the case may be)
gives a consent or waive a right under or in relation to any Senior
Finance Document in circumstances where the relevant Obligor is required
to obtain a corresponding consent or waiver under or in relation to the
provisions of any Investor Document or High Yield Intra-Group Bond
Document, that consent or waiver, if given under the relevant Senior
Finance Document, shall automatically operate as a consent or waiver (as
the case may be) given under the relevant Investor Document or High Yield
Intra-Group Bond Document.
12. REPRESENTATIONS AND WARRANTIES
Each party to this agreement represents and warrants to and for the
benefit of each of the other parties to this agreement that it:
(a) is duly established and (if a company) duly incorporated and validly
existing with limited liability under the laws of the place of its
incorporation and has the power to own its assets and carry on its
business;
(b) has the power and capacity to enter into and comply with its
obligations under this agreement; and
(c) has taken all necessary action:
(i) to authorise the entry into and compliance with its
obligations under this agreement;
(ii) to ensure that its obligations under this agreement are valid,
legally binding and enforceable in accordance with their
terms; and
(iii) to make this agreement admissible in evidence in the courts of
France and in the jurisdiction in which it is incorporated.
13. INFORMATION AND CO-OPERATION
13.1 OTHER INFORMATION
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The Parent (on behalf of itself and each other Group Company) authorises
each Creditor to disclose to each other Creditor all information relating
to it or the Group as a whole coming into the possession of that Creditor
in connection with any Senior Finance Document or Investor Document
(including the respective amounts of Debt outstanding from time to time).
13.2 CO-OPERATION
Each party to this agreement undertakes to use all reasonable endeavours
to ensure that any and all Security Interests now or in the future held or
obtained from any Group Company in relation to the Senior Debt shall be
constituted by the Security Documents and held by the Security Agent as
agent, for the benefit of the Senior Lenders. If for any reason it is not
possible for any such Security Interests to be held by the Security Agent
in that way, the parties shall procure that any alternative holder of
security shall, as a condition precedent to its accepting any such
Security Interest, adhere to this agreement by accepting obligations
mutatis mutandis identical in all material respects to those incumbent on
the Security Agent under this agreement.
13.3 CONSULTATION
The Finance Parties shall, so far as practicable in the circumstances,
consult with each other:
(a) before taking any formal steps to exercise any remedy against any
Group Company or take other Enforcement Action; and
(b) generally with regard to significant matters affecting the rights of
the parties as regulated by this agreement, but nothing in this
clause 13.3 or elsewhere in this agreement will invalidate or
otherwise affect any action or step taken without any such
consultation.
13.4 NOTIFICATION OF BREACH
Each party to this agreement will notify the Facility Agent and the
Investors of any breach of the provisions of this agreement promptly upon
that party becoming aware of that breach.
14. HEDGING LENDERS
14.1 IDENTITY OF HEDGING LENDERS
(a) Each Hedging Lender shall be a Senior Lender or an Affiliate of a
Senior Lender.
(b) The Parent shall procure that no Group Company shall enter into any
Hedging Agreement until the proposed Hedging Lender has entered into
a Creditor Accession Agreement in that capacity.
14.2 HEDGING AGREEMENT
Each Hedging Lender will promptly provide to the Security Agent copies of
the relevant Hedging Agreement to which it is a party. The Hedging
Agreement entered into by the Hedging Lenders shall:
(a) be based on the ISDA Master Agreement;
(b) include an election that the "Second Method" (as contemplated in the
ISDA Master Agreement) will apply; and
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(c) provide that the relevant Hedging Lender will, if so requested by
the Facility Agent under clause 3.3(b) (Permitted Hedging
Enforcement Action), following the occurrence of a Senior Declared
Default, designate an Early Termination Date or otherwise be
entitled to terminate any hedging transaction entered into under the
relevant Hedging Agreement.
14.3 AMENDMENTS
No Hedging Lender shall amend or vary any Hedging Agreement to which it is
party:
(a) so that that Hedging Agreement ceases to comply with the
requirements of this clause 14; or
(b) in a manner which is prejudicial to the interests of the Finance
Parties under the Senior Finance Documents,
in each case without the consent of the Security Agent acting on the
instructions of the Majority Senior Creditors (for this purpose excluding
that Hedging Lender in its capacity as such).
15. LOSS SHARING
15.1 NORMAL RECOVERIES
The Security Agent will apply all sums to be applied by it against the
Senior Debt in accordance with clause 9.1 (Application).
15.2 EXCEPTIONAL RECOVERIES
(a) If a Senior Lender (a "RECOVERING LENDER") makes a Senior Recovery
in respect of any amounts owed by any Obligor otherwise than under
clause 15.1 (Normal Recoveries):
(i) that Recovering Lender shall within three Business Days of
receipt notify the Facility Agent and the Security Agent in
writing of the amount of such Senior Recovery, the Obligor
from which the Senior Recovery was made (the "RELEVANT
OBLIGOR") and when the Senior Recovery was received;
(ii) the Security Agent shall then calculate what adjusting
payments (if any) are required to be made by the Recovering
Lender to the other Senior Lenders in order to ensure that the
Senior Recovery is shared amongst all Senior Lenders with
Outstandings at the Enforcement Date pro rata to their
respective Outstandings; and
(iii) the Security Agent shall promptly notify the Recovering Lender
and the other Lenders in writing of the amount of such
adjusting payments (if any) and how they were calculated.
(b) Within two Business Days of receipt by the Recovering Lender of the
notice referred to in clause 15.2(a)(iii), the Recovering Lender
shall pay to the Security Agent the amounts specified in such notice
and following receipt the Security Agent shall promptly redistribute
such amounts to the Senior Lenders for the purposes specified in
clause 15.2(a)(iii), save that the Recovering Lender shall be
treated as having already received its share of the relevant
redistribution.
15.3 LOSS SHARING
If following:
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(a) the procedures set out in clauses 15.1 (Normal Recoveries) and/or
15.2 (Exceptional Recoveries); or
(b) receipt by the Security Agent and the Facility Agent of a request in
writing from a Senior Lender after the Enforcement Date,
it transpires that any portion of the Senior Debt will not be repaid
and/or discharged (a "LOSS") and that the amount of such Loss is not
shared between the Senior Lenders in the proportion that the Senior
Commitments of each Senior Lender bears to the Total Commitments as at the
Enforcement Date (taking no account for these purposes of any cancellation
or reduction in Commitments under the Senior Facility Agreement due to
such Enforcement Action), the Senior Lenders shall make such payments
amongst themselves (as notified to them by the Security Agent) as are
necessary to procure that the Loss is shared between them in such
proportion.
15.4 OBLIGORS
(a) If a Recovering Lender makes a payment to the Security Agent under
clause 15.2(b) (Exceptional Recoveries) or any Senior Lender makes a
payment under clause 15.3 (Loss Sharing) then, to the extent
permitted by law:
(i) the liability of the Obligor to the relevant Senior Lender
shall be increased (or treated as not having been reduced) by
an amount equal to the payment so made; and
(ii) the Obligors will indemnify the relevant Senior Lender for all
loss it may suffer as a result of making such payment.
(b) Any indemnity payment received by a Senior Lender under clause
15.4(b) will itself be subject to the provisions of clauses 15.1
(Normal Recoveries) to 15.3 (Loss Sharing) (inclusive).
15.5 CURRENCY CALCULATIONS
For the purposes of this clause 15, if any amount needs to be converted
into another currency it shall be converted by the Facility Agent at the
spot rate of exchange of the Facility Agent (as determined by the Facility
Agent) for the purchase of that other currency with that amount in the
relevant foreign exchange market at the relevant time.
15.6 EXCEPTIONS TO SHARING OF RECOVERIES
Notwithstanding the foregoing provisions of this clause 15, no Recovering
Lender will be obliged to share any Senior 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).
15.7 NO SECURITY
The provisions of this clause 15 shall not, and shall not be construed so
as to, constitute a Security Interest by any Senior Lender over all or any
part of any amount received or recovered by it under any of the
circumstances mentioned in this clause 15.
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15.8 SENIOR FACILITY AGREEMENT
The provisions of this agreement will apply in place of clause 22 (Pro
Rata Payments) of the Senior Facility Agreement as from the Enforcement
Date.
16. APPOINTMENT AND DUTIES OF SECURITY AGENT
16.1 APPOINTMENT
(a) Each Finance Party:
(i) appoints Credit Lyonnais as Security Agent to act as its
security agent for the purposes of the Security Documents and
this agreement and to execute the Security Documents on its
behalf; and
(ii) irrevocably authorises the Security Agent for and on its
behalf to exercise the rights, powers and discretions which
are specifically delegated to it by the terms of the Security
Documents and this agreement, together with all rights, powers
and discretions which are incidental thereto and to give a
good discharge for any moneys payable under the Security
Documents.
(b) The Security Agent will act solely as agent for the Finance Parties
in carrying out its functions as agent under the Security Documents
and this agreement and will exercise the same care as it would in
dealing with a credit for its own account.
(c) The relationship between the Finance Parties and the Security Agent
is that of principal and agent only. The Security Agent shall not
have, nor be deemed to have, assumed any obligations to, or
fiduciary relationship with, any party to this agreement other than
those for which specific provision is made by the Security Documents
and this agreement.
16.2 SECURITY AGENT'S DUTIES
The Security Agent shall:
(a) send to each Beneficiary details of each communication delivered to
it by an Obligor for that Beneficiary under this agreement or any
Security Document as soon as reasonably practicable after receipt;
(b) subject to those provisions of this agreement which require the
consent of all Beneficiaries or all of a particular category of the
Beneficiaries, act in accordance with any instructions given as
provided in clause 8 (Enforcement of Security) or, if so instructed
under clause 8 (Enforcement of security), refrain from exercising a
right, power or discretion vested in it under this agreement or any
Security Document; and
(c) have only those duties, obligations and responsibilities expressly
specified in this agreement or the Security Documents.
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16.3 SECURITY AGENT'S RIGHTS
The Security Agent may:
(a) perform any of its duties, obligations and responsibilities under
this agreement or the Security Documents by or through its
personnel, delegates or agents (on the basis that the Security 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 this agreement or
any Security Document, refrain from exercising any right, power or
discretion vested in it under this agreement or the Security
Documents until it has received instructions in accordance with this
agreement;
(c) refrain from doing anything which would or might in its opinion be
contrary to any law, regulation or judgment 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 judgment;
(d) assume that no Default has occurred, unless an officer of the
Security Agent while active on the account of the Obligors acquires
actual knowledge to the contrary;
(e) refrain from taking any step (or further step) to protect or enforce
the rights of any Beneficiary under this agreement or any Security
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;
(f) rely on any communication or document believed by it to be genuine
and correct and assume it to have been communicated or signed by the
person by whom it purports to be communicated or by whom it purports
to be signed;
(g) rely as to any matter of fact which might reasonably be expected to
be within the knowledge of any Group Company on a statement by or on
behalf of that Group Company;
(h) obtain and pay for any legal or other expert advice or services
which may seem necessary to it or desirable and rely on any such
advice;
(i) 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
(j) hold or deposit any document of title, 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 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 sums required to
be paid on account or in respect of any such deposit.
16.4 EXONERATION OF THE SECURITY AGENT
Neither the Security Agent nor any of its personnel or agents shall be:
(a) responsible for the adequacy, accuracy or completeness of any
representation, warranty, statement or information in this agreement
or the Security Documents or any notice or other document delivered
under this agreement or the Security Documents;
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(b) responsible for the execution, delivery, validity, legality,
adequacy, enforceability or admissibility in evidence of this
agreement or any Security Document;
(c) obliged to enquire as to the occurrence or continuation of any
Default or as to the accuracy or completeness of any representation
or warranty made by any person;
(d) responsible for any failure of any Obligor or any of the
Beneficiaries duly and punctually to observe and perform their
respective obligations under this agreement or any Security
Document;
(e) responsible for the consequences of relying on the advice of any
professional advisers selected by any of them in connection with
this agreement or any Security Document;
(f) liable for acting (or refraining from acting) in what it believes in
good faith to be in the best interests of the Beneficiaries in
circumstances where it has been unable, or it is not practicable, to
obtain instructions in accordance with this agreement; or
(g) liable for anything done or not done by it under or in connection
with this agreement or any Security Document, save in the case of
its own negligence or wilful misconduct.
16.5 THE SECURITY AGENT INDIVIDUALLY
(a) For so long as it is a Finance Party, the Security Agent shall have
the same rights and powers under the Senior Finance Documents as any
other Finance Party and may exercise those rights and powers as if
it were not also acting as Security Agent.
(b) The Security Agent may:
(i) retain for its own benefit and without liability to account
any fee or other sum 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).
16.6 COMMUNICATIONS AND INFORMATION
(a) All communications to an Obligor in connection with the Security
Documents are to be made by or through the Security Agent. Each
Beneficiary will notify the Security Agent of, and provide the
Security Agent with a copy of, any communication between that
Beneficiary, an Obligor or any other Finance Party on any matter
concerning this agreement or the Security Documents.
(b) The Security Agent will not be obliged to transmit to the
Beneficiaries any information relating to any party to this
agreement or any Security Document which the Security Agent may have
acquired otherwise than in its capacity as Security Agent.
Notwithstanding anything to the contrary expressed or implied in
this agreement or any Security Document, the Security Agent shall
not, as between itself and the Beneficiaries, be bound to disclose
to any Beneficiary or other person any information, disclosure of
which might in the opinion of the Security Agent result in a breach
of any law or regulation or be otherwise actionable at the suit of
any person.
(c) In acting as Security Agent for the Beneficiaries, the Security
Agent's banking division shall be treated as a separate entity from
any other of its divisions (or similar unit of the Security
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Agent in any subsequent re-organisation) or subsidiaries (the "OTHER
DIVISIONS") and, if the Security Agent acts for any Group Company in
a corporate finance or other advisory capacity ("ADVISORY
CAPACITY"), any information given any Group Company to one of the
Other Divisions is to be treated as confidential and will not be
available to the Beneficiaries without the consent of the Parent,
except that:
(i) the consent of the Parent shall not be required in relation to
any information which the Security Agent in its discretion
determines relates to a Default or in respect of which the
Beneficiaries have given a confidentiality undertaking in a
form satisfactory to the Security Agent and the relevant Group
Company (acting reasonably); and
(ii) if representatives or employees of the Security 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 the Security
Agent in their capacity as Security Agent or to any of the
Beneficiaries, if to do so would breach any rule or regulation
or fiduciary duty imposed upon those persons.
16.7 NON-RELIANCE ON SECURITY AGENT
Each Beneficiary 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 Security 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;
(b) to check or enquire into the adequacy, accuracy or completeness of
any information provided by any Group Company under or in connection
with this agreement or any Security Document (whether or not such
information has been or is at any time circulated to it by the
Security Agent); or
(c) to assess or keep under review the business, operations, financial
condition, creditworthiness, status or affairs of any Group Company.
16.8 SECURITY AGENT'S INDEMNITY
(a) Each Finance Party shall on demand indemnify the Security Agent (in
the proportion which that Finance Party's Senior Credit
Participation bears to the total Senior Credit Participations)
against any loss incurred by the Security Agent in complying with
any instructions from the Finance Parties or the Majority Senior
Creditors (as the case may be) or otherwise incurred in connection
with this agreement or the Security Documents or its duties,
obligations and responsibilities under this agreement or the
Security Documents, except to the extent that they are incurred as a
result of the gross negligence or wilful misconduct of the Security
Agent or any of its personnel.
(b) The provisions of clause 16.8(a) are without prejudice to the
obligations of the Parent to indemnify the Security Agent, and the
Parent will reimburse each Beneficiary on demand for any payment
made by that Beneficiary under clause 16.8(a), unless, where the
Security Agent's loss was incurred as a result of instructions
received from that Beneficiary, those instructions were
unreasonable.
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16.9 TERMINATION AND RESIGNATION OF SECURITY AGENT
(a) The Security Agent may resign its appointment at any time by giving
notice to the Beneficiaries and the Parent.
(b) A successor Security Agent shall be selected:
(i) by the retiring Security Agent nominating one of its
Affiliates (following consultation with the Parent) as
successor Security Agent in its notice of resignation;
(ii) if the retiring Security Agent makes no such nomination, by
the Beneficiaries nominating a Beneficiary acting through an
office in France or London as successor Security Agent
(following consultation with the Parent); or
(iii) if the Beneficiaries have failed to nominate a successor
Security Agent within 30 days of the date of the retiring
Security Agent's notice of resignation, by the retiring
Security Agent (following consultation with the Parent)
nominating a financial institution of good standing acting
through an office in France or London to be the successor
Security Agent.
(c) The Majority Senior Creditors may, at any time with the consent of
the Parent (such consent not to be unreasonably withheld or delayed)
by 30 days prior notice to the Security Agent and the Parent,
terminate the appointment of the Security Agent and appoint a
successor Security Agent.
(d) The resignation or termination of the retiring Security Agent and
the appointment of the successor Security Agent will become
effective only upon the successor Security Agent accepting its
appointment as Security Agent, and upon the execution of all
documents necessary to substitute the successor as holder of the
security comprised in the Security Documents, at which time:
(i) the successor Security Agent will become bound by all the
obligations of the Security Agent and become entitled to all
the rights, privileges, powers, authorities and discretions of
the Security Agent under this agreement;
(ii) the agency of the retiring Security Agent will terminate (but
without prejudice to any liabilities which the retiring
Security Agent may have incurred prior to the termination of
its agency);
(iii) the retiring Security Agent will be discharged from any
further liability or obligation under or in connection with
this agreement or the Security Documents.
(e) The retiring Security Agent will co-operate with the successor
Security Agent in order to ensure that its functions are transferred
to the successor Security Agent without disruption to the service
provided to the Beneficiaries and the Parent and will promptly make
available to the successor Security Agent the documents and records
which have been maintained if connection with this agreement and the
Security Documents in order that the successor Security Agent is
able to discharge its functions.
(f) The provisions of this agreement will continue in effect for the
benefit of any retiring Security Agent in respect of any actions
taken or omitted to be taken by it or any event occurring before the
termination of its agency.
16.10 ROLE OF THE SECURITY AGENT
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The Security Agent will execute and manage all Security Documents on
behalf of all the Finance Parties and will apply all payments and other
benefits received by it under the Security Documents in accordance with
this agreement.
16.11 PAYMENTS TO FINANCE PARTIES
The Security Agent may retain for its own use and benefit, and will not be
liable to account to any person for all or any part of, any sums received
by way of agency or arrangement fee or by way of reimbursement of expenses
incurred by it.
16.12 CHANGE OF OFFICE OF SECURITY AGENT
The Security Agent may at any time in its sole discretion by notice to
each Beneficiary and the Parent designate a different office in France or
London from which its duties as Security Agent will be performed from the
date of notification.
17. COSTS AND EXPENSES
17.1 INDEMNITY
The Parent will indemnify each of the Creditors on demand from and against
any loss which any such party may reasonably incur in connection with the
negotiation, preparation, execution, amendment, release and/or enforcement
or attempted enforcement of, or preservation of any such parties rights'
under this agreement, including any present or future stamp or other taxes
or duties and any penalties or interest with respect thereto which may be
imposed by any competent jurisdiction in connection with the execution or
enforcement of this agreement or in consequence of any loss being incurred
as a result of any payment made under this agreement (whether made by an
Obligor or a third person) being impeached or declared void for any reason
whatsoever (upon production of duly documented evidence).
17.2 INTEREST
Amounts payable under clause 17.1 (Indemnity) which are not paid on demand
shall carry default interest at the Default Rate both before and after
judgment, from the date of demand and shall form part of the relevant
Debt. All such default interest shall be compounded in accordance with
article 1154 of the French Civil Code.
18. NOTICES
18.1 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 the Senior
Finance Documents 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 18.1(a) are:
(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);
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(ii) the address and facsimile number notified by that party for
this purpose to the Security 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 Security 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 18.1(b).
18.2 DEEMED SERVICE
(a) Subject to clause 18.2(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 under clause 18.2(a) but received on a non-Business
Day or after business hours in the place of receipt will only be
deemed to be given on the next Business Day in that place.
18.3 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.
19. CHANGES TO PARTIES
19.1 ASSIGNMENT AND TRANSFERS BY THE OBLIGORS
No Obligor may assign or transfer all or any part of its rights, benefits
or obligations under this agreement.
19.2 ASSIGNMENTS AND TRANSFERS BY CREDITORS
(a) A Creditor (in this capacity the "TRANSFEROR") may at any time
assign any of its rights under this agreement or transfer any of its
rights and obligations under this agreement to any person (a
"TRANSFEREE") to whom a Transferor is permitted to assign or
transfer rights, benefits and obligations under the Senior Finance
Documents or the Investor Documents (as the case may be).
(b) An assignment or transfer will only be effective if the Security
Agent executes a Creditor Accession Agreement duly completed and
signed on behalf of the Transferee under which the
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Transferee agrees to be bound by all of the terms of this agreement
as if it had originally been party to this agreement as a Finance
Party or an Investor (as the case may be).
(c) Each of the parties to this agreement (other than the Transferee)
irrevocably authorises the Security Agent to execute on its behalf
any Creditor Accession Agreement which has been duly completed and
executed on behalf of the Transferee.
(d) The Security Agent will promptly notify the other parties to this
agreement of the receipt and execution by it on their behalf of any
Creditor Accession Agreement.
19.3 ACCESSION OF NEW OBLIGORS
(a) The Parent will procure that any Group Company or other person (a
"NEW OBLIGOR") which grants any Security Interest or guarantee in
respect of, or otherwise becomes liable for, any Debt after the date
of this agreement will promptly complete, sign and deliver to the
Security Agent an Obligor Accession Agreement under which the New
Obligor agrees to be bound by all of the terms of this agreement as
if it had originally been party to this agreement as an Obligor.
(b) The Security Agent will promptly notify the other parties to this
agreement of the receipt by it of any Obligor Accession Agreement.
19.4 ACCESSION OF NEW INTRA-GROUP CREDITORS
The Parent will procure that any Group Company which is an Intra-Group
Creditor of the Parent will become an Intra-Group Creditor for the purpose
of this agreement by executing an Obligor Accession Agreement in such
capacity.
19.5 BENEFIT OF AGREEMENT
This agreement will be binding upon, and ensure for the benefit of, each
party to it and its or any subsequent successors or assigns.
20. MISCELLANEOUS
20.1 CERTIFICATES CONCLUSIVE
Save as expressly provided otherwise in any Senior Finance Document, a
certificate, determination, notification or opinion of the Facility Agent,
the Security Agent or any Senior Lender stipulated for in this agreement
as to any amount payable under any Senior Finance Document will be
conclusive and binding on the Parent, except in the case of manifest
error.
20.2 NO IMPLIED WAIVERS
(a) No failure or delay by any of the Senior Lenders in exercising any
right, power or privilege under this agreement 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 this agreement 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 this agreement, be available to the Finance Parties
severally
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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 consent granted by any Finance Party under this
agreement will be effective only if given in writing and then only
in the instance and for the purpose for which it is given.
20.3 INVALIDITY OF ANY PROVISION
(a) 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.
(b) Without prejudice to the generality of clause 20.3(a) above, the
obligations of the Parent under this agreement will not extend
beyond a point where they would cause the infringement of article
L225-216 of the New French Commercial Code.
21. GOVERNING LAW AND SUBMISSION TO JURISDICTION
21.1 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.
21.2 SUBMISSION TO JURISDICTION
For the benefit of each party to this agreement, each other party to this
agreement irrevocably submits to the exclusive jurisdiction of the
Commercial Court 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 judgment against its assets.
- 29 -
SCHEDULE 1
THE INVESTORS
NAME PLACE OF INCORPORATION
PAI Europe III - A FCPR France
PAI Europe III - B FCPR France
PAI Europe III - C FCPR France
PAI Europe III - D FCPR France
PAI Europe III - D2 FCPR France
Medit Mediterranea GPL SpA Italy
UGI France, Inc. Delaware, USA
- 30 -
SCHEDULE 2
CREDITOR ACCESSION AGREEMENT
[referred to in clause 19.2 (Assignments and Transfers by Creditors)]
THIS AGREEMENT is made on [_______]
BETWEEN:
(1) [_______] (the "NEW [FINANCE PARTY/HEDGING LENDER/INVESTOR]"); and
(2) [_______] in its capacity as Security Agent under the Intercreditor
Agreement.
RECITALS:
(A) This agreement is supplemental to an intercreditor agreement dated 7 July
2003, (the "INTERCREDITOR AGREEMENT") between, among others, AGZ Holding
and the entities named therein as Senior Lenders, High Yield Issuer and
Investors.
(B) This agreement has been entered into to record the accession of the New
[Finance Party/Hedging Lender/Investor] as a [Finance Party/Hedging
Lender/Investor] under the Intercreditor Agreement.
IT IS AGREED as follows:
1. DEFINITIONS
Words and expressions defined in the Intercreditor Agreement have the same
meanings when used in this agreement.
2. ACCESSION OF NEW CREDITOR
2.1 The New [Finance Party/Hedging Lender/Investor] agrees to become, with
immediate effect, a party to, and agrees to be bound by the terms of, the
Intercreditor Agreement as if it had originally been party to the
Intercreditor Agreement as a [Finance Party/Hedging Lender/Investor].
2.2 The New [Finance Party/Hedging Lender/Investor] confirms that its address
details for notices in relation to clause 18 (Notices) are as follows:
Address: [_______]
Facsimile: [_______]
Attention of: [_______]
2.3 The Security Agent for itself and the other parties to this agreement
other than the New [Finance Party/Hedging Lender/Investor] confirms the
acceptance of the New [Finance Party/Hedging Lender/Investor] as a
[Finance Party/Hedging Lender/Investor] for the purposes of the
Intercreditor Agreement.
3. LAW
3.1 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.
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3.2 For the benefit of each Financial Party, each of the parties hereto
irrevocably submits to the exclusive 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.
- 32 -
SIGNATORIES TO THE CREDITOR ACCESSION AGREEMENT
THE NEW [FINANCE PARTY/HEDGING LENDER/INVESTOR]
Executed by )
[Name] )
)
)
THE SECURITY AGENT
Executed by )
[Name] )
)
)
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SCHEDULE 3
OBLIGOR ACCESSION AGREEMENT
[referred to in clause 19.3 (Accession of New Obligors)
and clause 19.4 (Accession of New Intra-Group Creditors)]
THIS AGREEMENT is made on [_______]
BETWEEN:
(1) [_______] (the "NEW OBLIGOR"); and
(2) [_______] in its capacity as Security Agent under the Intercreditor
Agreement
RECITALS:
(A) This agreement is supplemental to an intercreditor agreement dated 7 July
2003, (the "INTERCREDITOR AGREEMENT") between amongst others, AGZ Holding
and the entities named therein as Senior Lenders, High Yield Issuer and
Investors.
(B) This agreement has been entered into to record the accession of the New
Obligor as an [Obligor / Intra-Group Creditor] under the Intercreditor
Agreement.
IT IS AGREED as follows:
1. DEFINITIONS
Words and expressions defined in the Intercreditor Agreement have the same
meanings when used in this agreement.
2. ACCESSION OF NEW OBLIGOR
2.1 The New Obligor agrees to become, with immediate effect, a party to, and
agrees to be bound by the terms of the Intercreditor Agreement as if it
had originally been party to the Intercreditor Agreement as an [Obligor /
Intra-Group Creditor].
2.2 The New Obligor confirms that its address details for notices in relation
to clause 18 (Notices) are as follows:
Address: [_______]
Facsimile: [_______]
Attention of: [_______]
3. LAW
3.1 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.
3.2 For the benefit of each Financial Party, each of the parties hereto
irrevocably submits to the exclusive 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.
- 34 -
SIGNATORIES TO THE OBLIGOR ACCESSION AGREEMENT
THE NEW OBLIGOR
Executed by )
[Name] )
)
)
THE SECURITY AGENT
Executed by )
[Name] )
)
)
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SIGNATORIES TO THE INTERCREDITOR AGREEMENT
PARENT
AGZ HOLDING
By __________________________
NOTICE DETAILS
Address: 43 avenue de l'Opera
75002 Paris
France
Facsimile: 33 1 55 77 91 28
Attention of: Finance Director
ANTARGAZ
ANTARGAZ
By __________________________
NOTICE DETAILS
Address: Immeubles Les Renardieres
3, Place de Saverne
92400 Courbevoie
Facsimile: 01 41 88 73 13
Attention of: Finance Director
HIGH YIELD ISSUER
AGZ FINANCE
By __________________________
NOTICE DETAILS
Address: 398, route d'Esch
L-1471 Luxembourg
Luxembourg
Facsimile: +352 48 18 63
+33 1 55 77 91 28
+33 1 41 88 73 13
Attention of: the Directors
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SENIOR LENDERS
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
INVESTORS
PAI EUROPE III - A FCPR
PAI EUROPE III - B FCPR
PAI EUROPE III - C FCPR
PAI EUROPE III - D FCPR
PAI EUROPE III - D2 FCPR
Represented by PAI Management
By ____________________
NOTICE DETAILS
Address: 43, avenue de l'Opera
75002 Paris
France
Facsimile: +33 1 55 77 91 28
Attention of: Herve Couffin, Olivier de Vregille, Frederic Stevenin,
Lionel Mestre
UGI FRANCE, INC.
By ____________________
NOTICE DETAILS
Address: 460 North Gulph Road
King of Prussia
PA 19406
USA
Facsimile: 001 610 992 3259
Attention of: Vice President and General Counsel
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MEDIT MEDITERANEA GPL SPA
By ____________________
NOTICE DETAILS
Address: Via Tadini 2
Novara
Italy
Facsimile: 39 0321 39 14 36
Attention of: Antonio Careri
FACILITY AGENT
CREDIT LYONNAIS
By ____________________
NOTICE DETAILS
Address:
London
England
Facsimile:
Attention of:
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
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