EXHIBIT 10.5
Dated 18 June 2004
AGZ HOLDING
as Parent
ANTARGAZ
THE ENTITIES NAMED HEREIN
as Lenders
CALYON
as Mandated Lead Arranger
CALYON
as Facility Agent
CALYON
as Security Agent
AMENDMENT AGREEMENT RELATING TO A
SENIOR FACILITIES AGREEMENT DATED 26 JUNE 2003 AS AMENDED AND RESTATED
Shearman & Sterling LLP
Paris
[SHEARMAN AND STERLING LLP LOGO]
CONTENTS
CLAUSE PAGE
1. INTERPRETATION.............................................. 3
2. AMENDMENTS TO THE FACILITIES AGREEMENT...................... 3
3. EFFECTIVENESS - CONDITIONS PRECEDENT........................ 5
4. STATUS OF DOCUMENTS......................................... 6
4.1 FACILITIES AGREEMENT.............................. 6
4.2 FINANCE DOCUMENT.................................. 6
5. REPRESENTATIONS AND WARRANTIES.............................. 6
5.1 RELIANCE.......................................... 6
5.2 POWERS AND CAPACITY............................... 7
5.3 AUTHORISATION..................................... 7
5.4 NO CONTRAVENTION.................................. 7
5.5 OBLIGATIONS BINDING............................... 7
5.6 CONSENTS.......................................... 7
5.7 NO DEFAULT........................................ 7
6. INVALIDITY OF ANY PROVISION................................. 8
7. GOVERNING LAW AND SUBMISSION TO JURISDICTION................ 8
7.1 GOVERNING LAW..................................... 8
7.2 SUBMISSION TO JURISDICTION........................ 8
SCHEDULE 1...................................................... 9
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THIS AMENDMENT AGREEMENT is made on 18 June 2004
BETWEEN:
(1) AGZ HOLDING (a company incorporated in France as a societe anonyme with
registered number 413 765108 RCS Nanterre) (the "PARENT");
(2) ANTARGAZ (a company incorporated in France as a societe anonyme with
registered number 572 126 043 RCS Nanterre) ("ANTARGAZ");
(3) CALYON (a company incorporated in France as a societe anonyme with
registered number 304 187 701 RCS Nanterre) as mandated lead arranger (the
"ARRANGER");
(4) THE FINANCIAL INSTITUTIONS listed in schedule 1 as Lenders;
(5) CALYON as a in its capacity as facility agent for the Lenders under the
Senior Finance Documents (the "FACILITY AGENT"); and
(6) CALYON 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, (ii) an amendment agreement dated
1 August 2003 and (iii) an amendment agreement dated 15 January 2004,
pursuant to which the Lenders agreed to make available to the Parent a
(euro)220,000,000 term facility and to the Borrowers a (euro)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
2.1 The parties to this amendment agreement hereby agree for themselves and
for their successors, transferees and assigns pursuant to the Facilities
Agreement that the Facilities Agreement shall be amended as follows with
effect from the Date of Effect (as such term is defined in Clause 3
below).
(a) The definition of "Financial Year" in Clause 1.1 (Definitions) shall read
as follows:
""FINANCIAL YEAR" means (i) until 31 March 2004, the period of 12 months
ending on March 31 in each
year, (ii) the period of 6 months ending on 30 September 2004 and (iii)
thereafter, the period of 12 months ending on 30 September in each year;"
(b) After the definition of "UGI" in Clause 1.1 (Definitions), the definition
of "UGI Bordeaux" is added as follows:
""UGI BORDEAUX" means UGI Bordeaux Holding, a French societe par actions
simplifiee, with a share capital of (euro)85,568,435, having its
registered office at 3 place de Saverne, Immeuble Les Renardieres, 92400
Courbevoie, registered under number 452 431 232 RCS Nanterre;".
(c) After the definition of "UGI Bordeaux" in Clause 1.1 (Definitions), the
definition of "UGI Bordeaux Letter of Undertakings" is added as follows:
""UGI BORDEAUX LETTER OF UNDERTAKINGS" means the letter dated 18 June 2004
(which constitutes a Senior Finance Document) by UGI Bordeaux Holding to
the Parent and the Facility Agent, acting on behalf of the Lenders,
whereby UGI Bordeaux undertakes to make certain payments to the Parent in
connection with the Tax Consolidation Agreement;".
(d) After the definition of "Taxes" in Clause 1.1 (Definitions), the
definition of "Tax Consolidation Agreement" is added as follows:
""TAX CONSOLIDATION AGREEMENT" means the tax consolidation agreement in
French language called convention d'integration fiscale dated 18 June 2004
and as amended from time to time, between UGI Bordeaux and its
Subsidiaries;"
2.3 PREPAYMENT AND CANCELLATION
(a) In the last paragraph (b)(i) of Clause 11.3 (Sale, Change of Control and
Listing), the words "any of the provisions of paragraph (B)(1) or (3)" are
replaced by "the provisions of paragraph (B)(3)".
(b) Paragraph (b)(iii)(B)(1) of Clause 11.3 (Sale, Change of Control and
Listing) is removed.
2.4 UNDERTAKINGS
(a) The first paragraph (ii) of Clause 19.9(c) (Restriction on payment
of dividends) shall read as follows:
"(ii) Notwithstanding the provisions of paragraph (i) of this clause
19.9(c), the provisions of clause 19.9(b) (Redemption and
acquisition of own shares) and the provisions of clause 19.9(d)
(Shareholder payments), the Parent may (x) redeem, purchase, retire
or otherwise acquire any shares or warrants issued by it or
otherwise reduce its capital or (y) declare or pay any dividend or
make any other distribution or pay any interest or other amounts,
whether in cash or otherwise, on or in respect of its share capital
or any class of its share capital or set apart any sum for any such
purpose or (z) make any repayment of principal of, or payment of
interest on, or any other payment with respect to any shareholder
investment by way of indebtedness in the Parent or (zz) reimburse
subsidies (subventions) paid by UGI Bordeaux to the Parent in
connection with the Tax Consolidation Agreement (each such
transaction described in (x), (y), (z) and (zz) above being referred
to as a "RESTRICTED PAYMENT") if at the time the Parent makes any
such Restricted Payment:"
(b) The following paragraph (iii) is added after paragraph (ii) of Clause
19.9(c) (Restriction on payment of dividends):
"(iii) By exception to the provision of paragraph (ii)(B) above of this
clause 19.9(c), but without prejudice to the other conditions set
forth in paragraph (ii) of this clause 19.9(c), Restricted Payments
may be made up to an aggregate amount not exceeding(euro)44,000,000
during the Financial Year ending on 30 September 2004, provided that
the Parent shall have delivered to the
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Facility Agent, prior to any such Restricted Payment is made, (i) a
certificate of the Parent's auditors confirming that the aggregate
Consolidated Net Income for the Financial Years ending on 31 March
2003 and 31 March 2004 is at least equal to(euro)88,000,000 and that
(ii) annual audited consolidated accounts as of 31 March 2004
confirming that the amount of EBITDA for the Financial Year ending
on 31 March 2004 is at least equal to(euro)147,000,000 and the Cash
as at 31 March 2004 is at least equal to(euro)66,000,000."
(c) Paragraph (ii)(D) of Clause 19.9(c) (Restriction on payment of dividends)
is removed.
(d) The term "; and" is added at the end of paragraph (ii)(C) of Clause
19.9(c) (Restriction on payment of dividends) and paragraph (ii)(E) of
Clause 19.9(c) (Restriction on payment of dividends) is renumbered as
paragraph (ii)(D).
(e) Paragraph (g)(ii) of Clause 19.10 (Information and Accounting
Undertakings) shall read as follows:
"(ii) Each Obligor undertakes to procure that the consolidated tax group
status (integration fiscale) of UGI Bordeaux, the Parent and each of
the Parent's Subsidiaries which fulfils the conditions for inclusion
in the consolidated tax group of UGI Bordeaux will continue for so
long as any Obligor has any obligation under any Senior Finance
Document. Notwithstanding any provision to the contrary in this
Agreement, the Parent and its Subsidiaries shall be authorised to
make payments to UGI Bordeaux under the Tax Consolidation Agreement
(such payments being equal to the income tax that would be due by
the Parent and its Subsidiaries in the absence of the tax
consolidation regime) provided (x) that UGI Bordeaux will, in
accordance with the Tax Consolidation Agreement and the UGI Bordeaux
Letter of Undertakings, reallocate part of such payments to the
Parent and (y) that the Parent shall exercise and enforce all its
rights to obtain such reallocation in accordance with the Tax
Consolidation Agreement."
2.5 EVENTS OF DEFAULT
(a) Clause 20.1(u) (Tax consolidation) shall read as follows:
"(u) TAX CONSOLIDATION
(i) The Group loses, for whatever reason (including as a result of any
change of law or interpretation in law) the benefit of the tax
consolidation regime (integration fiscale) for the Group and UGI
Bordeaux, unless, within 30 days of the occurrence of the relevant
event causing the loss of the tax consolidation regime, the Parent
has provided written details to the Facility Agent of a solution to
that loss which is satisfactory to the Majority Lenders (acting
reasonably).
(ii) An amendment or waiver is made to the Tax Consolidation Agreement
without the prior consent of the Majority Lenders, which could
reasonably be expected to prejudice the interests of the Finance
Parties under the Senior Finance Documents or of the Parent."
(b) The following paragraph is added after Clause 20.1(u) (Tax consolidation)
as a new Clause 20.1(uu):
"(u) UGI BORDEAUX
UGI Bordeaux fails to comply with any of its obligations under the
UGI Bordeaux Letter of Undertakings or under the Intercreditor
Agreement."
3. EFFECTIVENESS - CONDITIONS PRECEDENT
The amendments set forth in Clause 2 of this amendment agreement shall
become effective on the date on which all the following documents have
been received in form and substance satisfactory to the Facility Agent
(the "DATE OF EFFECT"):
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(a) Tax Memorandum by Landwell & Associes;
(b) Tax Consolidation Agreement;
(c) a certified copy of the updated extrait K-bis of UGI Bordeaux;
(d) a certified copy of the updated statuts of UGI Bordeaux;
(e) a certified copy of the resolutions of the relevant corporate bodies of
UGI Bordeaux,
(f) the UGI Bordeaux Letter of Undertakings duly signed by UGI Bordeaux,
(g) a Creditor Accession Agreement (as defined in the Intercreditor Agreement)
duly signed by UGI Bordeaux;
The effectiveness of the amendments set forth in clause 2 of this amendment
agreement (other than the amendments provided in clauses 2.4 (b), 2.4 (c) and
2.4 (d) hereof) is subject to the additional condition precedent of the payment
by the Parent to the Facility Agent of a fee of 0.25 % of the Commitments
(including the Revolving Commitments) of those Lenders who have given their
consent to such amendments.
The effectiveness of the amendments set forth in clauses 2.4 (b), 2.4 (c) and
2.4 (d) of this amendment agreement is subject to the additional condition
precedent of the payment by the Parent to the Facility Agent of a fee of 0.25 %
of the Commitments (including the Revolving Commitments) of those Lenders who
have given their consent to such amendments.
The fees referred to in the two preceding paragraphs shall be paid only to those
Lenders that have given their consent to the amendments referred to in such
paragraphs. As of the date hereof the Total Commitments amount to
(euro)252,000,000, including Total Revolving Commitments of (euro)50,000,000.
4. STATUS OF DOCUMENTS
4.1 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.
4.2 FINANCE DOCUMENT
This agreement will constitute a Senior Finance Document for the purposes
of the Facilities Agreement.
5. REPRESENTATIONS AND WARRANTIES
5.1 RELIANCE
Each Obligor represents and warrants as set out in the following
provisions of this clause 5 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.
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5.2 POWERS AND CAPACITY
Each Obligor has the power and capacity to enter into and comply with its
obligations under this agreement.
5.3 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).
5.4 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.
5.5 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).
5.6 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.
5.7 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.
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6. 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.
7. GOVERNING LAW AND SUBMISSION TO JURISDICTION
7.1 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.
7.2 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
- ---------------------------------------------------
CALYON
By:
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SCHEDULE 1
LENDERS
Calyon
BNPParibas
Credit Industriel et Commercial
ING Bank (France) SA
Sumitomo Mitsui Banking Corporation, Paris Branch
Allied Irish Bank plc
Deutsche Bank AG London
West LB AG, Paris Branch
Credit du Nord
Compagnie Financiere du Credit Mutuel
Lloyds TSB Bank PLC
CDC Finance - CDC IXIS
IKB Deutsche Industriebank AG, Paris Branch
Credit Agricole d'Ile de France
Bank of Scotland, Paris Branch
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