Exhibit 10.3
Dated 7 December 2005
ANTARGAZ
as Pledgor
CALYON
as Security Agent
and
THE REVOLVING LENDERS
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PLEDGE OF FINANCIAL INSTRUMENTS ACCOUNTS
RELATING TO FINANCIAL INSTRUMENTS
HELD BY ANTARGAZ IN CERTAIN SUBSIDIARY COMPANIES
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SHEARMAN & STERLING LLP
CONTENTS
1. DEFINITIONS AND INTERPRETATION....................................... 2
2. PURPOSE.............................................................. 3
3. REPRESENTATIONS AND WARRANTIES....................................... 4
4. UNDERTAKINGS......................................................... 5
5. ENFORCEMENT.......................................................... 5
6. DURATION............................................................. 6
7. NOTICE............................................................... 6
8. MISCELLANEOUS........................................................ 6
9. EXPENSES............................................................. 6
10. FURTHER ASSURANCES................................................... 7
11. APPLICABLE LAW AND JURISDICTION...................................... 7
SCHEDULE 1 THE ORIGINAL REVOLVING LENDERS............................... 9
SCHEDULE 2 THE COMPANIES................................................ 10
SCHEDULE 3 DECLARATION DE GAGE DE COMPTE D'INSTRUMENTS FINANCIERS
SOUMISE A L'ARTICLE L. 431-4 DU CODE MONETAIRE ET FINANCIER.. 11
SCHEDULE 4 DECLARATION OF PLEDGE OF A FINANCIAL INSTRUMENTS ACCOUNT IN
ACCORDANCE WITH ARTICLE L. 431-4 OF THE FRENCH MONETARY AND
FINANCIAL CODE............................................... 16
SCHEDULE 5 ATTESTATION DE CONSTITUTION DE GAGE DE COMPTE D'INSTRUMENTS
FINANCIERS................................................... 19
SCHEDULE 6 CERTIFICATE OF REGISTRATION OF A PLEDGE OF FINANCIAL
INSTRUMENTS ACCOUNT.......................................... 20
SCHEDULE 7 MODELE DE NOTIFICATION DE LA SURVENANCE D'UN CAS DE DEFAUT AU
TENEUR DU COMPTE ESPECES SPECIAL............................. 21
SCHEDULE 8 FORM OF NOTIFICATION OF THE OCCURRENCE OF AN EVENT OF DEFAULT
TO THE SPECIAL CASH ACCOUNT HOLDER........................... 22
SCHEDULE 9 FORM OF CONFIRMATION OF PLEDGE - SPECIAL CASH ACCOUNT........ 23
SCHEDULE 10 CERTIFICATE CONFIRMING THE OPENING OF THE SPECIAL CASH
ACCOUNT...................................................... 24
THIS PLEDGE OF FINANCIAL INSTRUMENTS ACCOUNTS (THE "PLEDGE AGREEMENT") IS MADE
ON 7 DECEMBER 2005
BETWEEN:
(1) ANTARGAZ, a French societe anonyme with a share capital of E3,935,349,
having its registered office at Immeuble Les Renardieres - 3, Place de
Saverne, 92400 Courbevoie, France and registered in France with number 572
126 043 RCS Nanterre;
(hereinafter referred to as the "PLEDGOR");
(2) CALYON, a company (societe anonyme) incorporated under the laws of France,
having its registered office 9 quai du president Paul Doumer, 92920 Paris
la Defense Cedex (France), registered under number 304 187 701 RCS
Nanterre, represented by Jacques Pochon and Jerome Del Ben duly empowered
for the purposes hereof,
(hereinafter referred to as the "SECURITY AGENT");
(3) The banks and financial institutions named in schedule 1 (the "ORIGINAL
REVOLVING LENDERS") and any bank or financial institution which may from
time to time become a Revolving Lender under the Senior Facilities
Agreement;
(hereinafter, together, referred to as the "REVOLVING LENDERS").
WHEREAS:
(A) Pursuant to a senior facilities agreement dated 7 December 2005
(hereinafter, as amended and restated from time to time, the "SENIOR
FACILITIES AGREEMENT") and entered into between, among others, (i) AGZ
Holding as the Parent (the "PARENT"), (ii) the persons named therein as
Borrowers and/or Guarantors, (iii) the Original Revolving Lenders and (iii)
Calyon as Mandated Lead Arranger, Facility Agent and Security Agent, the
Original Revolving Lenders have agreed to make available to the Parent, the
Pledgor and certain of its subsidiaries a revolving credit facility in a
maximum aggregate principal amount of E50,000,000 (the "REVOLVING
FACILITY").
(B) The Pledgor is a party to the Senior Facilities Agreement as Borrower and
Guarantor under the Revolving Facility.
(C) It is a condition precedent to the availability of the Revolving Facility
that the Pledgor grant in favour of the Beneficiaries a pledge over each of
the Accounts.
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IT IS AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Pledge
"ACCOUNT" means the (i) special financial instruments account ("compte
special") the details of which are specified in each Declaration de Gage,
opened in the name of the Pledgor in the books of the relevant Company as
account holder (teneur de compte), in which the relevant Financial
Instruments are registered and (ii) the relevant Special Cash Account;
"ARTICLE L. 431-4" means article L. 431-4 of the French Monetary and
Financial Code (Code Monetaire et Financier);
"BENEFICIARIES" means the entities identified in paragraph III of each
Declaration de Gage;
"BORROWER" means a Borrower under, and as defined in, the Senior Facilities
Agreement;
"COMPANY" means each company listed in schedule 2 and "Companies" means all
of them;
"CONFIRMATION OF PLEDGE" means, for each Pledge, the confirmation of pledge
(attestation de nantissement de compte d'instruments financiers) in the
form attached as Schedule 5;
"DECLARATION DE GAGE" has the meaning which is given to it in clause 2.4 of
this Pledge Agreement;
"DISCHARGE DATE" means the date on which all of the Secured Liabilities
have been irrevocably and unconditionally discharged in full and none of
the Beneficiaries has any continuing obligation to any company in the Group
under or in connection with the Revolving Facility;
"EVENT OF DEFAULT" means an event defined as an Event of Default in the
Senior Facilities Agreement;
"FINANCIAL INSTRUMENTS" means, in respect of each Company listed in
schedule 2, (i) the number of shares (as set out opposite the name of that
Company in schedule 2 of this Pledge) equal to the total number of shares
held by the Pledgor in that Company minus a maximum of ten (10) shares and
(ii) all other financial instruments which would be registered in the
Pledged Account in accordance with this Pledge;
"GUARANTOR" has the meaning given to it in the Senior Facilities Agreement;
"SECURED LIABILITIES" means all money and liabilities now or hereafter due,
owing or incurred to the Beneficiaries (or any of them) by the Pledgor
under the Senior Finance Documents (or any of them), and under this Pledge
in whatsoever manner in any currency or currencies whether present or
future, actual or contingent, whether incurred solely or jointly with any
other person and whether as principal or surety together with all interest
accruing thereon and all costs, charges and expenses incurred in connection
therewith;
"SECURITY PERIOD" means the period beginning on the date hereof and ending
on the Discharge Date;
"SENIOR FINANCE DOCUMENTS" has the meaning given to it in the Senior
Facilities Agreement;
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"SPECIAL ACCOUNT HOLDER" means Calyon; and
"SPECIAL CASH ACCOUNT" means, for each Pledge, the relevant special bank
account opened in the name of the Pledgor in the books of the relevant
Special Account Holder, which pursuant to Article L. 431-4 of the French
Code Monetaire et Financier, forms part of the relevant Account, and the
reference of which are specified in the relevant Declaration de Gage.
1.2 Capitalised terms used in this Pledge (including the Recitals) and not
otherwise defined herein shall have the meaning ascribed thereto in the
Senior Facilities Agreement.
2. PURPOSE
2.1 As security for the repayment, discharge and performance of all the Secured
Liabilities, the Pledgor hereby pledges each of the Accounts in favour of
the Beneficiaries.
2.2 (a) In accordance with Article L. 431-4, all Financial Instruments
initially registered in the relevant Pledged Account, those which may
be substituted therefor or added thereto in any manner whatsoever, as
well as any income and proceeds (fruits et produits) therefrom in any
currency whatsoever are automatically incorporated in the scope of the
relevant Pledge without any such operation constituting in any manner
a novation of the rights or the security granted to the Beneficiaries
under the Pledge.
(b) In addition, if the Pledgor subsequently subscribes or purchases in
any manner whatsoever other financial instruments (instruments
financiers) issued by the Company that are not automatically included
in the scope of the relevant Pledge pursuant to paragraph (a) of this
Clause 2, the Pledgor shall transfer the said financial instruments to
the relevant Pledged Account and the said financial instruments shall
therefore be included in the scope of the relevant Pledge in
accordance with I of Article L. 431-4. The Pledgor shall execute all
such documents and take all such other actions as may be necessary or
appropriate to effect such transfer.
2.3 In accordance with Article L. 431-4, the Financial Instruments and the sums
in any currency whatsoever subsequently registered in the relevant Pledged
Account, as a security for the performance by the Pledgor of the Secured
Obligations, are subject to the same terms as those initially registered
and are considered as if they were so registered at the date of the initial
Declaration de Gage.
2.4 All income and proceeds (fruits et produits) in cash payable in respect to
the Financial Instruments, including without limitation all dividends and
other distributions in cash to which the Financial Instruments give right
as well as all cash amounts payable in respect of or in substitution for
any of the relevant Financial Instruments shall be paid to the relevant
Special Cash Account. By executing the relevant Confirmation of Pledge, the
Company shall accept to make such payments to the relevant Special Cash
Account. So long as no Event of Default has occurred and has been notified
to the Pledgor, the Pledgor is hereby authorised by the Lenders to withdraw
from the relevant Special Cash Account all income and proceeds (fruits et
produits) which have been credited therein. This authorisation may be
revoked by the Security Agent on behalf of the Beneficiaries, by simple
notice (substantially in the form of Schedule 6) of the Security Agent to
the relevant Special Account Holder (with a copy to the Pledgor) upon the
occurrence of an Event of Default, for so long it is not remedied, waived
or ended in any way whatsoever. Upon receipt of such notice by the relevant
Special Account Holder, all amounts standing to the credit of the relevant
Special Cash Account, shall become unavailable for the
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Pledgor until a notification to the contrary is received from the Security
Agent (which shall occur at the Pledgor's expense as soon as reasonably
practicable when such Event of Default is no longer continuing). In
accordance with Article L. 431-4, the relevant Special Cash Account is
considered to be part of the Pledged Account at the date of the relevant
signature of the Declaration de Gage.
2.5 The Pledgor shall take all necessary steps requested by the Security Agent
(including, without limitation, signature of a "Declaration de Gage de
compte d'instruments financiers" in the form set out in schedule 3 in
relation to each Company) (each a "DECLARATION DE GAGE"), as soon as
possible, so that following execution of this Pledge:
(a) the Financial Instruments are transferred to the relevant Pledged
Account opened in the name of the Pledgor with the relevant Company
and indicating the pledge in favour of the Beneficiaries;
(b) the pledge granted over each of the Accounts under this Pledge is
registered in the share transfer register of the relevant Company; and
(c) an "Attestation de constitution de gage de compte d'instruments
financiers" in the form set out in schedule 5 is delivered by each
Company to the Security Agent.
3. REPRESENTATIONS AND WARRANTIES
The Pledgor represents and warrants to the Security Agent and to each of
the Beneficiaries as at the date hereof and for the duration of the
Security Period, that:
(a) the Financial Instruments are registered, have been fully paid up, and
represent at the date hereof the percentage of the share capital of
each such Company as indicated in schedule 2 and will at all time
represent at least 95% of the share capital of each such Company (or
85% with respect to Rhone Mediterrannee Gaz-RMG);
(b) it is the owner of the Accounts and the registered owner of the
Financial Instruments and it has not created, incurred or permitted to
subsist any Security Interest or other encumbrance whatsoever over the
Accounts (or any of them) or the Financial Instruments (or any of
them) other than the Security Interest granted pursuant to this
Pledge;
(c) there is no purchase option outstanding or in existence in relation to
all or part of the Financial Instruments, no scheme exists for the
purchase or subscription of Financial Instruments in such Companies
(or any of them), and more generally there exists no agreement by
which any such Company has undertaken to issue new financial
instruments or securities giving access to the share capital of that
Company, all except as permitted under the Finance Documents;
(d) the Pledge has been approved by each Company (save as indicated in
schedule 2) in accordance with its Statuts;
(e) the payment of, or the provision of security for, the Secured
Liabilities by the Pledgor does not require any authorisation of any
authority whatsoever, including, without limitation, from the
administrative bodies of the Pledgor other than those previously
obtained and no authorisation from the administrative bodies of the
Pledgor or any of the
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Companies or of any authority whatsoever is required for the
enforcement of this Pledge; and
(f) this Pledge is valid and enforceable in accordance with its terms and
creates a pledge ranking above the rights that any other person may
have over the Accounts or the Financial Instruments, or any of them,
or over the proceeds of any sale of the Financial Instruments or any
of them.
4. UNDERTAKINGS
4.1 For the duration of the Security Period, the Pledgor undertakes:
(a) not to transfer nor to sell the Financial Instruments, or any of them,
without the prior written consent of the Security Agent acting on
behalf of the Beneficiaries;
(b) not to create, incur or permit to subsist any Security Interest or
encumbrance of any sort whatsoever over the Accounts or the Financial
Instruments, or any of them, other than in favour of the
Beneficiaries;
(c) save as otherwise permitted by the Finance Documents, to procure that
no Company shall issue new Financial Instruments and more generally to
procure that no Company shall change its share capital;
(d) to the extent permitted under French law, not to exercise the voting
rights or to pass any resolutions attached to the Financial
Instruments (or any of them) which may adversely change the terms of
the Financial Instruments (or any class of them) or prejudice the
Security Interest created hereunder; and
(e) to take any action, carry out any formalities and more generally do
anything the Security Agent may reasonably consider necessary in order
to permit the Security Agent or the other Beneficiaries to exercise,
at any time, the rights and claims which it or the other Beneficiaries
hold by virtue of this Pledge.
(f) Instruct the Special Account Holder to deliver to the Security Agent,
with respect to the Special Cash Account, an attestation de
constitution de gage de compte especes special substantially in the
form set out in Schedule 9 duly executed by the relevant Special
Account Holder.
4.2 Notwithstanding anything contained herein, the Pledgor shall remain liable
to observe and perform all of the conditions and obligations assumed by it
in respect of the Financial Instruments and the Accounts (or any of them)
and none of the Beneficiaries shall be required in any manner to perform or
fulfill any obligation of the Pledgor in respect of the Financial
Instruments or the Accounts (or any of them) or to make any payment
received by them, or to receive any enquiry as to the nature or sufficiency
of any payment received by them, or to present or to file any claim or take
any other action to collect or enforce the payment of any amount to which
they may have been or to which they may be entitled hereunder at any time
or times.
5. ENFORCEMENT
Following the occurrence of a payment default under the Secured Liabilities
and without prejudice to any other right or action whatsoever which may be
exercised or taken independently
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or concurrently, the Security Agent, acting on behalf of the Beneficiaries,
may enforce its rights under the Pledge up to the limit of the Secured
Liabilities in accordance with article L. 521-3 of the Code de Commerce and
article 2078 of the French Civil Code.
6. DURATION
6.1 This Pledge shall remain in full force and effect throughout the Security
Period.
6.2 The Security Agent acting upon instructions of the Beneficiaries undertakes
to procure the release of the Pledge on or as soon as practicable after the
Discharge Date.
7. NOTICE
Except as specifically provided otherwise in this Pledge, any notice,
demand or other communication to be served under or in connection with this
Pledge shall be made in accordance with clause 24 (Notices) of the Senior
Facilities Agreement.
8. MISCELLANEOUS
8.1 This Pledge does not exclude or limit in any way the other rights of the
Security Agent or the other Beneficiaries and does not affect the nature or
the extent of the liabilities which have been or which may exist between
the Pledgor and the Security Agent or the other Beneficiaries.
8.2 Where any clause of this Pledge shall be or become illegal, invalid or
unenforceable it is agreed that the other provisions of this Pledge shall
remain legal, valid and enforceable against the parties to this Pledge
independently of the said illegal, invalid or unenforceable clauses.
8.3 No payment to the Security Agent and/or the other Beneficiaries whether
under any judgment or court order or otherwise shall discharge the
obligation or liability of the Pledgor unless and until the Security Agent
and/or the other Beneficiaries shall have received payment in full in the
currency in which the obligation or liability was incurred and to the
extent that the amount of any such payment shall on actual conversion into
such currency fall short of such obligation or liability expressed in that
currency the Security Agent and/or the other Beneficiaries shall have a
further cause of action against the Pledgor to recover the amount of the
shortfall.
8.4 In the event of a transfer by way of a novation of all or part of the
rights and obligations by the Beneficiaries under the Senior Facilities
Agreement, the Beneficiaries expressly reserve (and all the parties to this
Pledge expressly agree to that), the rights, powers, privileges and actions
that they enjoy under this Pledge in favour of their successors, in
accordance with the provisions of articles 1278 and following of the French
Civil Code.
9. EXPENSES
The Pledgor will promptly following demand pay to each of the Security
Agent and/or the other Beneficiaries any expense (including legal fees and
other out of pocket expenses and any Taxes thereon) or loss which the
Security Agent and/or the other Beneficiaries may have properly incurred in
connection with the preservation, enforcement or attempted preservation or
enforcement of, the Security Agent's or the other Beneficiaries rights
under, this Pledge 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 Pledge all upon presentation of duly documented
evidence.
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10. FURTHER ASSURANCES
The Pledgor agrees that from time to time, at its own expense, it will
promptly execute and deliver all further instruments and documents, and
take all further action, that the Security Agent may reasonably request, in
order to perfect and protect any Security Interest granted or purported to
be granted hereby or to enable the Security Agent to exercise and enforce
its rights and remedies hereunder with respect to the relevant Account.
11. APPLICABLE LAW AND JURISDICTION
11.1 This Pledge shall be governed by and construed in all respects in
accordance with French law.
11.2 Any dispute arising out of or in connection with this Pledge shall be
submitted to 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 Pledge.
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Made in three (3) originals on 7 December 2005.
THE PLEDGOR: THE SECURITY AGENT:
ANTARGAZ CALYON
Acting by: /s/ Francois Varagne Acting by: /s/ Jacques Pochon and Jerome Del Ben
------------------------- -------------------------------------
Name: Francois Varagne or any duly Name: Jacques Pochon and Jerome Del Ben
empowered person under a power of Title: Head of Acquisition Finance
attorney France and Associate Director
Title: President-Directeur General Address: CALYON
Address: 3, Place de Saverne Leverage and Financial Sponsors
92400 Courbevoie Group
Fax: +33 1 41 88 73 15 9 quai du President Paul Doumer
For the attention of Francois 92920 Courbevoie Cedex
Varagne France
Fax: +33 1 41 89 39 53 / 14 33
For the attention of Jerome Del Ben /
Victoria Becq-Giraudon
THE ORIGINAL LENDERS:
CALYON
Acting by: /s/ Jacques Pochon and Jerome Del Ben
-------------------------------------
Name: Jacques Pochon and Jerome Del Ben
Title: Head of Acquisition Finance
France and Associate Director
Address CALYON
Leverage and Financial
Sponsors Group
9 quai du President Paul
Doumer
92920 Courbevoie Cedex
France
Fax: +33 1 41 89 39 53 / 14 33
For the attention of Jerome Del Ben /
Victoria Becq-Giraudon
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SCHEDULE 1
THE ORIGINAL REVOLVING LENDERS
CALYON, 9 quai du president Paul Doumer, 92920 Paris La Defense cedex, France
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