Exhibit 10.6
TAX CONSOLIDATION AGREEMENT
AMENDMENT NO 2
BETWEEN
UGI BORDEAUX HOLDING
AND
ITS GROUP COMPANIES
BETWEEN THE UNDERSIGNED:
(1) UGI BORDEAUX HOLDING, societe par action simplifiee with a share capital of
EUR 85,568,435 having its registered office at Immeuble les Renardieres, 3
place de Saverne, 92400 Courbevoie and registered under the number 452 431
232 RCS Nanterre, duly represented for the purposes of the present
Agreement by Francois Varagne,
(hereafter referred to as the "PARENT COMPANY"),
firstly,
(2) AGZ HOLDING, societe anonyme with a share capital of EUR 35,126,800 having
its registered office at Immeuble les Renardieres, 3 place de Saverne,
92400 Courbevoie and registered under the number 413 765 108 RCS Nanterre,
duly represented for the purposes of the present Agreement by Francois
Varagne,
(hereafter referred to as "AGZ HOLDING"),
secondly,
(3) ANTARGAZ, societe anonyme with a share capital of EUR 3,935,349 having its
registered office at Immeuble les Renardieres, 3 place de Saverne, 92400
Courbevoie and registered under the number B 572 126 043 RCS Nanterre, duly
represented for the purposes of the present Agreement by Francois Varagne,
(hereafter referred to as "ANTARGAZ"),
thirdly,
(4) WOGEGAL S.A., societe anonyme with a share capital of EUR 596,600.28 having
its registered office at 19bis rue du Champ Martin, 35770 Vern Sur Seiche
and registered under the number 310 095 658 RCS Rennes, duly represented
for the purposes of the present Agreement by Francois Varagne,
(hereafter referred to as "WOGEGAL S.A."),
fourthly,
(5) GAZ EST DISTRIBUTION, societe anonyme with a share capital of EUR 152,400
having its registered office at 109 boulevard d'Haussonville, 54000 Nancy
and registered under the number 421 283 615 RCS Nancy, duly represented for
the purposes of the present Agreement by Francois Varagne,
(hereafter referred to as "GAZ EST DISTRIBUTION"),
fifthly,
(6) NORD GPL SA, societe anonyme with a share capital of EUR 304,800 having its
registered office at Le Marais d'Epinoy - Parc d'Activites du Chateau - Rue
Gay Lussac, 62220 Carvin and registered under the number 422 265 504 RCS
Bethune, duly represented for the purposes of the present Agreement by
Francois Varagne,
(hereafter referred to as "NORD GPL SA"),
sixthly,
(7) RHONE MEDITERRANEE GAZ, societe anonyme with a share capital of EUR
151,758.24 having its registered office at Centre d'activites du Chateau de
l'Ile - 6 rue Leon Blum, 69320 Feyzin and registered under the number 382
151 272 RCS Lyon, duly represented for the purposes of the present
Agreement by Francois Varagne,
(hereafter referred to as "RHONE MEDITERRANEE GAZ"),
seventhly,
AND
(8) AQUITAINE PYRENEES GAZ, societe anonyme with a share capital of EUR
135,163.56 having its registered office at 4 avenue de l'Escart, 33450
Saint Loubes and registered under the number 410 963 770 RCS Bordeaux, duly
represented for the purposes of the present Agreement by Francois Varagne,
(hereafter referred to as "AQUITAINE PYRENEES GAZ"),
eighthly,
WHEREAS:
By way of a private written agreement, dated June 18, 2004, as modified by an
amendment, dated December 15, 2004, UGI Bordeaux Holding, AGZ Holding, Antargaz,
Wogegal, Gaz Est Distribution, Nord GPL, Rhone Mediterranee Gaz and Aquitaine
Pyrenees Gaz entered into an Agreement intituled "Tax Consolidation Agreement
between UGI Bordeaux Holding and its Group Companies" (the "TAX CONSOLIDATION
AGREEMENT").
Pursuant to Article 1.6 of the Tax Consolidation Agreement, it is stipulated, in
particular, that for each tax year that falls within the Consolidation Period,
UGI Bordeaux Holding undertakes to retrocede to AGZ Holding an amount equal to
the tax saving that AGZ Holding would have recorded in its financial statements,
in its capacity as parent company of the AGZ Holding tax consolidation group, if
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it had remained the parent company of this group and had applied the tax
consolidation agreement, in effect prior to June 18, 2004, between AGZ Holding
and its subsidiaries. It is also stipulated that payments made by UGI Bordeaux
Holding to the Company with respect to these retrocessions must be made through
the medium of a subsidy or share capital increase, from a legal perspective.
Following the refinancing of the senior debt of AGZ Holding, which occurred on
December 7, 2005, the parties to the present Amendment decided to amend the
above-mentioned provision of the Tax Consolidation Agreement so as to enable UGI
Bordeaux Holding to also make payments due to the Company, with respect to
retrocessions of tax savings, through the medium of subordinated loans.
The parties have agreed to adopt this Amendment for the purposes of amending the
Tax Consolidation Agreement.
All of the clauses of the Tax Consolidation Agreement apply, with the exception
of the Articles that are redefined or completed hereafter, the effect of which
is restricted to the scope of this Amendment.
THE PARTIES AGREE AS FOLLOWS:
1. The parties agree, pursuant to this Amendment, to amend Article 1.6 of the
Tax Consolidation Agreement as follows:
"Notwithstanding the preceding provisions, and for the purposes of applying
Article 20.1 of the Senior Facilities Agreement, dated December 7, 2005,
between, in particular, AGZ Holding and Calyon (successor in the rights of
Credit Lyonnais), as amended from time to time (the "SENIOR FACILITIES
AGREEMENT"), the Parent Company undertakes, for each tax year that falls
within the Consolidation Period, to retrocede to AGZ Holding an amount
equal to the tax saving that AGZ Holding would have recorded in its
financial statements, in its capacity as parent company of the AGZ Holding
tax consolidation group, if it had remained the parent company of this
group and had applied the tax integration agreement previously in effect
between AGZ Holding and its subsidiaries. It is understood that this
reallocation must not result in placing AGZ Holding in a less favourable or
more favourable position than if it had remained at the head of the tax
consolidation group. This retrocession shall be implemented as follows:
Within fifteen (15) days following the annual approval of its financial
statements by its shareholders' General Meeting, AGZ Holding shall (i)
calculate the amount of accounting profit relating to the tax saving that
would have been triggered by the application of the tax consolidation
agreement previously in effect between AGZ Holding and its subsidiaries and
(ii) notify this amount to the Parent Company.
Within fifteen (15) days following receipt of this information, the Parent
Company shall pay the said amount to AGZ Holding by bank transfer. From a
legal point of view, this payment may be made through the medium of a
subsidy, share capital increase or intra-group loan, at the discretion of
the Parent Company. No interest shall be invoiced by the Parent Company to
AGZ Holding in respect of any payment made by the Parent Company to AGZ
Holding through the medium of a subsidy.
In the event of payment by way of a subsidy or loan, it is stipulated under
the terms of a letter of undertaking, signed between UGI Bordeaux Holding,
AGZ Holding and Calyon at the date of this Amendment, that the receivable
owed to UGI Bordeaux Holding by AGZ Holding pursuant to these subsidies or
loans (including interest and accessory amounts) shall be subordinated to
the full repayment of receivables of lenders under the Senior Facilities
Agreement.
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In the event of payment by way of a subsidy or intra-group loan, the Parent
Company and AGZ Holding agree that these amounts will not be taken into
consideration for the calculation of taxable profit serving as the basis
for determining the contribution due by AGZ Holding to the Parent Company.
Furthermore, within thirty (30) days following the annual approval by the
shareholders' General Meeting of the financial statements for the financial
year and payment of the said subsidies or intra-group loans, AGZ Holding
undertake to repay to the Parent Company an equal amount, subject to:
- AGZ being authorised to make such a prepayment under the
conditions stipulated by the Senior Facilities Agreement, dated
December 7, 2005;
- AGZ Holding not being in default with respect to the provisions
of the Senior Facilities Agreement;
- AGZ Holding having the cash necessary to make this repayment
without being required to have recourse to a loan.
These conditions are assessed at the date of the above-mentioned repayment.
If these condition are not fulfilled, the amount which cannot be repaid to
the Parent Company shall be carried forward and repayable in respect of the
following financial year, subject to the respect of the conditions set
forth above.
The provisions of this Article 1.6 shall cease to apply as soon as the
amounts due to the Lenders pursuant to the Senior Facilities Agreement are
repaid."
This Amendment comes into effect on December 7, 2005.
All the other terms and conditions of the Tax Consolidation Agreement
remain unchanged.
Executed in 8 originals
In Paris
December 7, 2005
UGI BORDEAUX HOLDING
Represented by Mr. Francois Varagne
AGZ HOLDING
Represented by Mr. Francois Varagne
ANTARGAZ
Represented by Mr. Francois Varagne
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WOGEGAL S.A.
Represented by Mr. Francois Varagne
GAZ EST DISTRIBUTION
Represented by Mr. Francois Varagne
NORD GPL SA
Represented by Mr. Francois Varagne
RHONE MEDITERRANEE GAZ
Represented by Mr. Francois Varagne
AQUITAINE PYRENEES GAZ
Represented by Mr. Francois Varagne
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