Exhibit 10.1
Dated 7 December 2005
AGZ HOLDING
as Parent
THE COMPANIES NAMED HEREIN
as Borrowers and/or Guarantors
THE ENTITIES NAMED HEREIN
as Lenders
CALYON
as Mandated Lead Arranger
CALYON
as Facility Agent
CALYON
as Security Agent
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SENIOR FACILITIES AGREEMENT
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SHEARMAN & STERLING LLP
CONTENTS
CLAUSE PAGE
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1. INTERPRETATION....................................................... 1
2. THE FACILITIES....................................................... 16
3. PARTICIPATION OF LENDERS............................................. 17
4. CONDITIONS PRECEDENT................................................. 18
5. DRAWDOWN PROCEDURES.................................................. 19
6. DEMANDS UNDER BANK GUARANTEES........................................ 23
7. INTEREST............................................................. 26
8. SELECTION OF INTEREST PERIODS........................................ 28
9. MARKET DISRUPTION.................................................... 29
10. REPAYMENT OF DRAWINGS................................................ 30
11. PREPAYMENT AND CANCELLATION.......................................... 30
12. PAYMENTS............................................................. 35
13. TAXES................................................................ 37
14. CHANGE IN CIRCUMSTANCES.............................................. 39
15. FEES, EXPENSES AND STAMP DUTIES...................................... 41
16. GUARANTEE AND INDEMNITY.............................................. 43
17. CHANGES TO OBLIGORS AND SECURITY..................................... 45
18. REPRESENTATIONS AND WARRANTIES....................................... 46
19. UNDERTAKINGS......................................................... 50
20. EVENTS OF DEFAULT.................................................... 68
21. THE AGENTS AND THE OTHER FINANCE PARTIES............................. 74
22. PRO RATA PAYMENTS.................................................... 79
23. SET-OFF.............................................................. 80
24. NOTICES.............................................................. 81
25. CONFIDENTIALITY...................................................... 82
26. CHANGES TO PARTIES................................................... 82
27. LENDERS' DECISIONS................................................... 85
28. INDEMNITIES.......................................................... 86
29. MISCELLANEOUS........................................................ 87
30. GOVERNING LAW AND SUBMISSION TO JURISDICTION......................... 87
SCHEDULE 1............................................................... 89
Lenders 89
SCHEDULE 2............................................................... 90
Security Documents....................................................... 90
SCHEDULE 3............................................................... 91
Documentary Conditions Precedent......................................... 91
SCHEDULE 4............................................................... 94
Part 1 - Drawdown Request - Advances..................................... 94
Part 2 - Drawdown Request - Bank Guarantees.............................. 95
SCHEDULE 5............................................................... 96
Transfer Certificate..................................................... 96
Schedule 1 to Transfer Certificate....................................... 99
Schedule 2 to Transfer Certificate....................................... 100
Particulars relating to the Transferee................................... 100
SCHEDULE 6............................................................... 101
Accession Document....................................................... 101
SCHEDULE 7............................................................... 104
Auditors certificate..................................................... 104
SCHEDULE 8............................................................... 105
Form of effective global rate letter..................................... 105
SCHEDULE 9............................................................... 107
Part 1 - Distribution Companies.......................................... 107
Part 2 - Storage and Logistics Companies................................. 108
SCHEDULE 10.............................................................. 109
Part 1 - Supply Agreements............................................... 109
Part 2 - Other Material Contracts........................................ 110
SCHEDULE 11.............................................................. 111
Mandatory Cost Formulae.................................................. 111
THIS FACILITIES AGREEMENT is made on 7 December 2005
BETWEEN:
(1) AGZ HOLDING (a company incorporated in France as a societe anonyme with
registered number 413 765 108 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 as mandated lead arranger (the "ARRANGER");
(4) THE FINANCIAL INSTITUTIONS listed in schedule 1 as Lenders;
(5) CALYON 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:
The Parent has requested the Lenders to make available to it a EUR
380,000,000 Term Facility for the purpose of discharging indebtedness under
the Existing Term Facility (as defined below) and the Intra-Group Bonds and
High Yield Notes (as defined below) and for other general corporate
purposes and the Parent and Antargaz have requested the Lenders to make
available to them and to other Borrowers (as defined below) a EUR
50,000,000 Revolving Facility.
THE PARTIES TO THIS AGREEMENT AGREE as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this agreement:
"ACCESSION DOCUMENT" means an agreement substantially in the form set out
in schedule 6 under which a Group Company becomes a Borrower and/or a
Guarantor;
"ACCOUNTING HALF-YEAR" means each period of approximately 26 weeks ending
on the last day of September and March in a Financial Year;
"ADVANCES" means the Term Advance and the Revolving Advances;
"AFFILIATE" means a Subsidiary or a Holding Company of another person or
any other Subsidiary of a Holding Company of that other person;
"AGENTS" means the Facility Agent and the Security Agent;
"ANNUAL ACCOUNTS" means the audited annual accounts of the Group delivered
or to be delivered to the Facility Agent under clause 19.10(c)(i)
(Financial statements);
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"ANNUAL MANAGEMENT ACCOUNTS" means the annual consolidated management
accounts (before audit) of the Group delivered or to be delivered to the
Facility Agent under clause 19.10(c)(i) (Financial statements);
"APPROVED ACCOUNTING PRINCIPLES" means French gaap and, subject to those
principles, the accounting principles, standards and practices on the basis
of which the Original Audited Accounts were prepared;
"APPROVED PROJECTIONS" means the financial projections and forecast for the
business of the Group in the agreed form prepared on a basis consistent
with the Approved Accounting Principles;
"AUDITORS" means PricewaterhouseCoopers and Ernst & Young and/or any other
firm of accountants which the Parent appoints in accordance with clause
19.10(b) (Books of account and auditors);
"AVAILABILITY PERIOD" means the period starting on the Signing Date and
ending:
(a) on 31 January 2006 (inclusive) in the case of the Term Facility, and
(b) one month before the Revolving Facility Repayment Date in the case of
the Revolving Facility;
"BANK GUARANTEE" means a guarantee or letter of credit issued by an Issuing
Lender under the Revolving Facility in the form agreed by the Parent, the
Facility Agent and the relevant Issuing Lender;
"BENEFICIARY" means the person approved by the relevant Issuing Lender in
whose favour a Bank Guarantee has been or is to be issued;
"BORROWERS" means the Parent, Antargaz and each other Group Company which
becomes a borrower under this agreement in accordance with clause 17.1
(Additional Borrowers);
"BUSINESS DAY" means a day (other than a Saturday or a Sunday) on which
banks and financial markets are open in Paris and London for the
transaction of business of the nature required by this agreement and:
(a) in relation to a transaction involving Euros, a day which is a Target
Day; and
(b) in relation to a transaction involving the Optional Currency, a day on
which banks and financial institutions are open in the principal
financial centre of the country of the Optional Currency;
"CASH COLLATERAL ACCOUNT" means an account with the Security Agent opened
in the name of an Obligor into which amounts are to be paid for the
purposes of clause 1.4 (Cash cover) and over which the Security Agent has
or shall have a first priority security interest under the Security
Documents;
"CASH EQUIVALENTS" has the meaning given to it in clause 19.12 (Financial
definitions);
"CERTAIN FUNDS PERIOD" means the period commencing on the Signing Date and
ending on the earlier of (a) the first Drawdown Date (inclusive) and (b)
the last day of the Availability Period of the Term Facility (inclusive);
"COMMITMENT" means, in relation to a Lender, its Term Commitment or its
Revolving Commitment;
"CONSTITUTIONAL DOCUMENTS" means the statuts and k-bis of the Parent in the
agreed form;
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"CONTINGENT LIABILITY" means:
(a) the maximum actual and/or contingent liability of an Issuing Lender
under a Bank Guarantee at any time; or
(b) the maximum actual and/or contingent liability of a Lender in relation
to a Bank Guarantee at any time under clause 6.4(b) (Indemnities);
"CORE BUSINESS" means the existing core business of the Group as at the
Signing Date, consisting of (i) the purchase, storage, transport and
distribution of gas and liquefied petroleum gas (including butane and
propane-based LPG and their substitutes and derivatives, (ii) the
manufacture, trade and repairing of equipment relating to the making,
storage, transport, distribution and use of gas and liquefied petroleum gas
(including butane and propane-based LPG) and their substitutes and
derivatives, (iii) the purchase and sale of patents, licences,
manufacturing processes, trademarks and factory models and designs in
connection with (i) and (ii) and (iv) all other ancillary and related
activities in relation to (i) to (iii);
"DEFAULT" means an Event of Default or a Potential Event of Default;
"DERIVATIVE INSTRUMENT" means any forward rate agreement, option, swap,
cap, floor, any combination or hybrid of the foregoing and any other
financial derivative agreement;
"DISTRIBUTION COMPANIES" means the companies and other corporate entities
listed in part 1 of schedule 9;
"DRAWDOWN DATE" means the date for the making of a Drawing, as specified by
the relevant Borrower in the relevant Drawdown Request;
"DRAWDOWN REQUEST" means a notice requesting an Advance or the issue of a
Bank Guarantee in the form set out in part 1 or 2 (as appropriate) of
schedule 4;
"DRAWING" means a utilisation by a Borrower of a Facility;
"EBITDA" has the meaning given to it in clause 19.12 (Financial
definitions);
"ENVIRONMENT" means any and all living organisms (including man),
ecosystems, gases, air, vapours, liquids, water, land, surface and
sub-surface soils, rock and all other natural resources or part of such
resources, including artificial or man-made buildings, structures or
enclosures;
"ENVIRONMENTAL APPROVAL" means any consent required under or in relation to
Environmental Laws;
"ENVIRONMENTAL LAWS" means all international, European Union, national,
federal, state or local statutes, orders, regulations or other law or
subordinate legislation or common law or guidance notes or regulatory codes
of practice, circulars and equivalent controls (including judicial
interpretation of any of the foregoing) concerning the Environment or
health and safety which are in existence now or in the future and are
binding at any time on any Group Company in the relevant jurisdiction in
which that Group Company has been or is operating (including by the export
of its products or its waste to that jurisdiction);
"EONIA" means in relation to a Business Day and any amount in Euro:
(a) the overnight rate per annum calculated by the European Banking
Federation for the relevant Business Day which appears on Telerate
Screen page 247 or any other service which displays such rate which
the Facility Agent, after consultation with the Lenders and the
Parent, selects; or
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(b) if the rate referred to in paragraph (a) above is not available for
that Business Day, the arithmetic mean of the rates (rounded upwards
to four decimals places) as supplied to the Facility Agent at its
request quoted by the Reference Banks to the leading banks in the
European interbank market;
at or about 7.00 pm (Brussels time) on such day for offering of deposits in
Euro for the period from one Business Day to the immediately following
Business Day;
"EQUITY CONTRIBUTION" means:
(a) any increase in the share capital of the Parent by way of cash
contribution; or
(b) the incurrence by the Parent of Financial Indebtedness provided to it
pursuant to an unsecured loan or other debt or debt equity instrument
in each case deeply subordinated (with capitalised interests) on terms
acceptable to the Facility Agent acting reasonably;
"EURIBOR" means, in relation to any Advance or overdue amount in Euro, the
rate per annum equal to the offered quotation which appears on Telerate
Screen page 248 (or any replacement page on that service) as of 11.00 am on
the applicable Rate Fixing Day for a period comparable to its Interest
Period or, if no Telerate service is available, on any other service which
displays an average European Banking Federation Interest Settlement Rate
for Euro which the Facility Agent, after consultation with the Lenders and
the Parent, selects;
"EURO", "EUR" and "E" means the single currency of the Participating Member
States of the European Union;
"EURO EQUIVALENT" means, in relation to an amount denominated in a currency
other than Euro, the amount of that currency converted into the relevant
amount of Euros at the Euro Spot Rate;
"EURO SPOT RATE" means the spot rate of exchange of the Facility Agent (as
determined by the Facility Agent) for the purchase of the aggregate amount
of Euros with a currency other than Euro in the European foreign exchange
market in the ordinary course of business at or about 10:00 am on a
particular day;
"EVENT OF DEFAULT" means any event specified in clause 20.1 (List of
events);
"EXISTING FACILITIES" means the Existing Term Facility and the Existing
Revolving Facility;
"EXISTING FACILITIES AGREEMENT" means the senior facilities agreement dated
26 June 2003, as amended and restated on 2 July 2003 and as amended on 1
August 2003, 15 January 2004 and 18 June 2004 between, inter alia, the
Parent, Antargaz, the lenders named therein and Calyon as facility agent
and security agent in relation to the Existing Facilities;
"EXISTING REVOLVING FACILITY" means the revolving credit facility in the
principal amount of EUR 50,000,000 granted to the Borrowers under the
Existing Facilities Agreement;
"EXISTING TERM FACILITY" means the term facilities in the initial principal
amount of EUR 220,000,000 granted to the Parent under the Existing
Facilities Agreement;
"EXISTING INDEBTEDNESS" means the Existing Facilities, the High Yield Notes
and the Intra-Group Bonds;
"FACILITIES" means the Term Facility and the Revolving Facility;
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"FEES LETTER" means the letter from the Facility Agent to the Parent dated
on or about the Signing Date setting out details of certain fees payable by
the Parent in connection with the Facilities;
"FINANCE DOCUMENTS" means the Senior Finance Documents, the High Yield
Documents and the Intra-Group Bond Documents;
"FINANCE PARTIES" means the Arranger, each Agent, each Lender and each
Issuing Lender;
"FINANCIAL INDEBTEDNESS" means (without double counting) any indebtedness
in relation to or arising under or in connection with:
(a) any money borrowed (including any overdraft);
(b) any debenture, bond (other than a performance bond issued in the
ordinary course of trading by one Group Company in relation to the
obligations of another Group Company), note or loan stock or other
similar instrument;
(c) any acceptance or documentary credit;
(d) any receivable sold or discounted (other than to the Security Agent
pursuant to any Security Document) provided that, for the purposes of
any calculation of the amount of Financial Indebtedness, the amount of
indebtedness to be taken into account under this paragraph (d) will be
the amount of the consideration received by the relevant Group Company
for the sale or discounting of the relevant receivable;
(e) the purchase price of any asset or service to the extent payable by a
Group Company after the time of sale or delivery to a Group Company,
where the deferred payment is:
(i) arranged as a method of raising vendor financing; and
(ii) paid more than six months after the sale or delivery date;
(f) the sale price of any asset or service to the extent paid before the
time of sale or delivery by the Group Company liable to effect that
sale or delivery, where the advance payment is arranged as a method of
raising finance;
(g) any finance lease, hire purchase, credit sale or conditional sale
agreement which in each case would be treated as such in accordance
with French gaap;
(h) Derivative Instruments (provided that, for the purpose of any
calculation of the amount of Financial Indebtedness to be taken into
account under this paragraph (h) in respect of the relevant Derivative
Instrument, that amount shall be the net amount of the payment
obligations outstanding from the relevant Group Company under that
Derivative Instrument, less the amount of any margin then placed by
that Group Company with the relevant counterparty in connection with
that Derivative Instrument);
(i) any amount payable by any Obligor in relation to the reduction of any
share capital or redemption of any securities issued by it or any
other Group Company, other than amounts payable to another Obligor;
(j) any amount raised under any other transaction having the commercial
effect of a borrowing (other than refundable deposits payable and
consigned containers accrual liability); or
(k) any guarantee issued by a Group Company of indebtedness of any person
of a type referred to in paragraphs (a) to (j) (inclusive) above;
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for the avoidance of doubt, the amount of indebtedness to be taken into
account for the purpose of any calculation of the amount of Financial
Indebtedness shall not double-count guarantees granted by any Group Company
in respect of Financial Indebtedness incurred by any Group Company and will
not include guarantees of obligations incurred by any Group Company which
obligations do not constitute indebtedness of a type referred to in
paragraphs (a) to (j) (inclusive) above;
"FINANCIAL YEAR" means the period of 12 months ending on 30 September in
each year;
"XXXXX" means AGZ Finance, a company incorporated under the laws of the
Grand Duchy Luxembourg as a societe anonyme with registered number RC
Luxembourg B 87.750;
"FRENCH GAAP" means accounting principles, standards and practices
generally accepted from time to time in France;
"FINAL REFINANCING DATE" means the date of full redemption of the High
Yield Notes and the Intra-Group Bonds which shall not be later than the
60th day following the first Drawdown Date;
"GEOGAZ" has the meaning given to it in part 2 of schedule 9;
"GEOVEXIN" has the meaning given to it in part 2 of schedule 9;
"GROUP" means the Parent and its Subsidiaries from time to time;
"GROUP COMPANY" means a member of the Group;
"GROUPEMENT XXXXXX" means the groupement d'interets economiques Groupement
Xxxxxx which has been established by Total and Antargaz pursuant to the
Principal Supply Agreement referred to in part 1 of schedule 10;
"GUARANTORS" means the Parent, Antargaz and each other Group Company which
becomes a guarantor under this agreement;
"HALF-YEAR ACCOUNTS" means the semi-annual consolidated management accounts
of the Group delivered or to be delivered to the Facility Agent under
clause 19.10(c)(ii)(Financial statements);
"HEDGING AGREEMENTS" means Derivative Instruments entered into with the
Hedging Lenders for the purpose of managing or hedging currency and/or
interest rate risk in relation to the Term Facility;
"HEDGING LENDER" means a Lender (or an Affiliate of a Lender) or an entity
that is a party to an existing derivative instrument entered into by the
Parent in relation to the Existing Term Facility, in its capacity as
provider of currency and/or interest rate hedging under any Hedging
Agreement;
"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 GUARANTEE" means the subordinated guarantee set out in the High
Yield Trust Deed and provided by the Parent in favour of the High Yield
Trustee and the holders of the High Yield Notes pursuant to which the
Parent guarantees the obligations of Xxxxx under the High Yield Notes;
"HIGH YIELD NOTES" means the high yield notes issued on 23 July 2002 by
Xxxxx in an aggregate principal amount of EUR 165,000,000, bearing interest
at the rate of 10 per cent. per annum payable semi-annually on 15 January
and 15 July in each year, and maturing on 15 July 2011, the proceeds of
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which have been made available to the Parent through the subscription by
Xxxxx of the Intra-Group Bonds in accordance with the Intra-Group Bond
Documents;
"HIGH YIELD TRUST DEED" means the trust deed and/or other instrument
pursuant to which the High Yield Notes have been 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;
"HOLDING COMPANY" means, in relation to any body corporate, any other body
corporate of which it is a Subsidiary;
"INTELLECTUAL PROPERTY" means the Intellectual Property Rights owned or
used by Group Companies throughout the world or the interests of any Group
Company in any of those Intellectual Property Rights, together with the
benefit of all agreements entered into or the benefit of which is enjoyed
by any Group Company relating to the use or exploitation of any of those
Intellectual Property Rights;
"INTELLECTUAL PROPERTY RIGHTS" means all patents and patent applications,
trade and service marks and trade and/or service xxxx applications (and all
goodwill associated with any such applications), all brand and trade names,
all copyrights and rights in the nature of copyright, all design rights,
all registered designs and applications for registered designs, all trade
secrets, know-how and all other intellectual property rights;
"INTERCREDITOR AGREEMENT" means the intercreditor agreement dated on or
before the first Drawdown Date entered into between, amongst others, each
of the parties to the Senior Finance Documents, Xxxxx and the Parent;
"INTEREST PERIOD" means a period by reference to which interest is
calculated and payable on an Advance or overdue amount;
"INTRA-GROUP BOND DOCUMENTS" means the Intra-Group Bonds, the terms and
conditions of the Intra-Group Bonds set out in the Parent's Board
resolution having decided on their issue and all related and ancillary
documents;
"INTRA-GROUP BONDS" means the subordinated bonds issued by the Parent to
Xxxxx in an aggregate principal amount equal to the aggregate principal
amount of the High Yield Notes;
"INVESTMENT AMOUNT" means the aggregate (without double-counting) of the
following amounts:
(a) any amount advanced, lent, contributed or subscribed for, or otherwise
invested in, a Joint Venture by any Group Company during any Financial
Year;
(b) the market value of any asset transferred (other than by way of a
transfer otherwise permitted under this agreement) or contributed to a
Joint Venture by any Group Company during any Financial Year; and
(c) the maximum liability under any guarantee given by any Group Company
during any Financial Year in respect of any Financial Indebtedness
incurred (whether by way of guarantee or otherwise) by a Joint
Venture;
"ISSUING LENDER" means any Lender in its capacity as issuer of a Bank
Guarantee;
"JOINT VENTURE" means any joint venture, partnership or similar arrangement
(including any Groupement d'interets economiques) or any company of which
the Parent directly or indirectly owns
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some (but not all or substantially all) of the equity share capital (but
excluding for the avoidance of doubt any Distribution Company);
"LENDERS" means the Term Lenders and the Revolving Lenders;
"LENDING OFFICE" means the office through which a Lender is acting for the
purposes of this agreement, which, subject to clause 3.2 (Lending Office),
will be the office set opposite the name of that Lender in schedule 1 (or
in any relevant Transfer Certificate);
"LIBOR" means, in relation to any Advance or overdue amount in the Optional
Currency, the rate per annum equal to the offered quotation which appears
on Telerate Screen page 3740 (or any replacement page on that service) as
of 11.00 am (London time) on the applicable Rate Fixing Day for the
Optional Currency for a period comparable to its Interest Period or, if no
Telerate service is available, on any other service which displays British
Bankers Association Interest Settlement Rate for the Optional Currency
which the Facility Agent, after consultation with the Lenders and the
Parent, selects;
"MAJORITY LENDERS" means, at any time:
(a) Lenders whose aggregate Commitments at that time aggregate more than
66.66 per cent. of the Total Commitments at that time; or
(b) if the Total Commitments have at that time been reduced to zero,
Lenders whose Commitments aggregated more than 66.66 per cent. of the
Total Commitments immediately before the relevant reduction;
"MANDATORY COST" means the percentage rate per annum calculated by the
Facility Agent in accordance with Schedule 11 (Mandatory Cost Formulae);
"MARGIN" means:
(a) in relation to the Term Facility, 0.80 per cent. per annum, subject to
clause 7.6 (Margin adjustment);
(b) in relation to the Revolving Facility, 0.80 per cent. per annum,
subject to clause 7.6 (Margin adjustment);
"MATERIAL ADVERSE EFFECT" means any effect, event or matter:
(a) which is materially adverse to:
(i) the business, assets or financial condition of the Group (taken
as a whole); and
(ii) the ability of any Obligor to perform any of its payment
obligations under any Senior Finance Document or any of its
obligations under clause 19.11 (Financial Covenant - Leverage
Ratio); or
(b) which results in any Security Document not providing to the Security
Agent security over the assets expressed to be secured under that
Security Document;
"MATERIAL COMPANY" means:
(a) each Obligor (other than the Parent), Xxxxx, each Distribution Company
which is marked as "Material Company" in part 1 of Schedule 9 and each
Storage and Logistics Company which is marked as "Material Company" in
part 2 of Schedule 9; and
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(b) any other Group Company (other than the Parent) whose profits, sales
or gross assets exceed five per cent. of the consolidated profits,
sales or gross assets (as the case of may be) of the Group and, for
this purpose, the calculation of profits, sales or gross assets shall:
(i) be made in accordance with the Approved Accounting Principles;
(ii) in the case of a company which itself has Subsidiaries, be made
by using the consolidated profits, consolidated sales or
consolidated gross assets (as the case may be) of it and its
Subsidiaries; and
(iii) be made by reference to:
(A) the latest accounts of the relevant Subsidiary used for the
purposes of the then latest Annual Accounts; and
(B) the then latest Annual Accounts;
"MATERIAL CONTRACTS" means the Supply Agreements and the agreements set out
in part 2 of schedule 10;
"MATURITY DATE" means the last day of an Interest Period for a Revolving
Advance;
"NET PROCEEDS" means the aggregate consideration received by any Group
Company in relation to the disposal of all or any part of the assets of any
Group Company (including the amount of any inter-company debt of any Group
Company disposed of which is repaid in connection with that disposal), but
after deducting all Taxes and other reasonable costs and expenses incurred
by continuing Group Companies in connection with that disposal;
"OBLIGORS" means each Borrower and each Guarantor;
"OPERATING BUDGET" means a budget, in such form and content as the Facility
Agent shall reasonably require, comprising projected balance sheet,
projected profit and loss account and projected cashflow statement
(including details of projected capital expenditure) for the Group and
forecast of the likely financial performance of the Group for a Financial
Year, delivered under clause 19.10 (Information and accounting
undertakings);
"OPTIONAL CURRENCY" means USD;
"ORIGINAL AUDITED ACCOUNTS" means the audited consolidated accounts of the
Group for the Financial Year ending 30 September 2005;
"ORIGINAL MANAGEMENT ACCOUNTS" means the consolidated management accounts
of the Group for the Financial Year ending 30 September 2005;
"PARTICIPATING MEMBER STATES" has the meaning given to it in council
Regulation EC No. 1103/97 of 17 June, 1997 made under Article 235 of the
Treaty on European Union;
"PARTLY OWNED STORAGE AND LOGISTICS COMPANY" means a Storage and Logistics
Company which is not a wholly-owned Subsidiary (whether directly or
indirectly) of the Parent;
"PERMITTED ACQUISITION" means any acquisition (the "PROPOSED ACQUISITION")
by a Group Company of all the shares in a company or substantially all of
the assets of a business, provided that:
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(a) the company or the business which is the subject of the Proposed
Acquisition carries on a similar or complementary business to that
carried on by the Group;
(b) the chief financial officer (or any board member) of the Parent
certifies to the Lenders (such certificate to contain calculations in
reasonable detail) that the ratio of Total Net Debt to EBITDA of the
Group tested by reference to the Testing Period ending on the Testing
Date immediately preceding the date on which the Proposed Acquisition
is completed but calculated including the Proposed Acquisition and
quantifiable synergies from the Proposed Acquisition (such as
purchasing synergies) will be no greater than the maximum level for
such ratio as at that Testing Date as provided under clause 19.11
(Financial Covenant - Leverage Ratio);
"POTENTIAL EVENT OF DEFAULT" means an event specified in clause 20.1
(Events of Default) which, with the giving of notice, the lapse of time or
the making of any determination would constitute an Event of Default;
"QUALIFYING LENDER" means, for the purposes of any Drawing by a Borrower, a
bank or financial institution which:
(a) is for the time being participating in that Drawing through a branch,
agency or Affiliate in the jurisdiction of residence of that Borrower;
or
(b) is resident in a country with which the jurisdiction of residence of
the Borrower has an appropriate double taxation treaty which, under
its terms, provides at the date on which that bank or financial
institution becomes a Lender for full relief from that jurisdiction's
income tax on that jurisdiction's source interest for an entity such
as that bank or other financial institution when acting through the
branch, agency of Affiliate through which it is acting for the
purposes of that Drawing;
"RATE FIXING DAY" means, in relation to any period for which EURIBOR or
LIBOR is to be determined:
(a) in the use of EURIBOR, two Target Days before the first day of that
period, or
(b) in the use of LIBOR, two Business Days before the first day of that
period;
unless market practice differs in the relevant interbank market for a
currency, in which case the Rate Fixing Day for that currency will be
determined by the Facility Agent in accordance with market practice in the
relevant interbank market;
"RECEIVABLES" means, in relation to a Borrower, at any time, the unpaid
portions of the obligations of any trade debtor of that Borrower in respect
of the supply of goods or services by that Borrower;
"REFINANCING" means the refinancing of the Existing Indebtedness;
"REFINANCING CASH COLLATERAL ACCOUNT" means the cash collateral account
(compte xx xxxx-especes) opened in the name of the Security Agent into
which the portion of the Term Advance which is not applied on the first
Drawdown Date as per paragraphs (i) and (ii) of clause 5.2(f) (Content of
Drawdown Requests) is to be paid. The amount credited on the Refinancing
Cash Collateral Account shall be released in accordance with the provisions
of the cash collateral agreement relating thereto either:
(a) by direct transfers:
(i) on the Business Day immediately preceding the Final Refinancing
Date: (A) to the Principal Paying Agent (as defined in the High
Yield Trust Deed), of an amount equal
10
to the redemption price payable for the full redemption of the
High Yield Notes together with all accrued interests, premiums
and other amounts, (B) to Xxxxx, of the remaining amount (in
addition to the amount referred to in (A)) payable for the full
redemption of the Intra-Group Bonds together with all accrued
interests, premiums and other amounts: and
(ii) on the Business Day following the date on which the Security
Agent has received from the Parent evidence of cancellation of
the High Yield Notes and a pay-off letter in respect of the
Intra-Group Bonds: to the Parent of the balance of the
Refinancing Cash Collateral Account; or
(b) for application to the prepayment of amounts due by the Parent under
this Agreement if the mandatory prepayment referred to in clause 11.6
(Final Refinancing Date) becomes due and payable;
"REFINANCING COSTS" means all fees, costs and expenses incurred by the
Group for the purpose of or in connection with the Refinancing;
"REPAYMENT DATES" means the Term Final Repayment Date and the Revolving
Facility Repayment Date;
"REVOLVING ADVANCE" means the principal amount of each advance made or to
be made under the Revolving Facility, as reduced from time to time by
repayment or prepayment;
"REVOLVING COMMITMENT" means:
(a) in relation to a Lender identified in schedule 1, the amount set
opposite its name under the heading "Revolving Commitment" in schedule
1 and the amount of any other Revolving Commitment transferred to it
under this agreement; or
(b) in relation to any other Lender, the amount of any Revolving
Commitment transferred to it under this agreement,
to the extent not cancelled, reduced or transferred by it under this
agreement;
"REVOLVING FACILITY" means the revolving credit facility made available by
the Revolving Lenders under clause 2.1(b) (Facilities);
"REVOLVING FACILITY REPAYMENT DATE" means 31 March 2011;
"REVOLVING LENDERS" means:
(a) the persons identified in schedule 1 as participating in the Revolving
Facility; and
(b) each Transferee which has become a party to this agreement in relation
to the Revolving Facility in accordance with clause 26 (Changes to
parties),
in each case until its entire participation in the Revolving Facility has
been assigned or transferred to a Transferee in accordance with clause 26
(Changes to parties) and all amounts owing to it under the Senior Finance
Documents in relation to the Revolving Facility have been paid in full;
"RHONE GAZ" has the meaning given to it in part 2 of schedule 9;
11
"SECURITY DOCUMENTS" means each of the security documents specified in
schedule 2 and all other documents creating, evidencing or granting a
Security Interest in favour of any Finance Party in relation to the
obligations of any Obligor under any Senior Finance Document;
"SECURITY INTEREST" means any mortgage, pledge, lien, right of set-off,
assignment by way of security, reservation of title, any other security
interest or any other agreement or arrangement (including a sale and
repurchase arrangement) having the commercial effect of conferring
security;
"SENIOR FINANCE DOCUMENTS" means this agreement, each Security Document,
the Intercreditor Agreement, each Accession Document, each Transfer
Certificate, the Fees Letter, the subordination provisions expressed to be
given for the benefit of the Finance Parties in the High Yield Documents
and any other document designated as a Senior Finance Document by the
Parent and the Facility Agent;
"SENIOR MANAGEMENT TEAM" means Xx. Xxxxxxxx Varagne and Xx. Xxxx xx Xxxxxx;
"SERVICE CONTRACTS" means the contracts of employment made between Antargaz
and each member of the Senior Management Team;
"SIGNING DATE" means the date of this agreement;
"SOBEGAL" has the meaning given to it in part 2 of schedule 9;
"STORAGE AND LOGISTICS COMPANIES" means the companies and other corporate
entities listed in part 2 of schedule 9;
"SUBSIDIARY" means:
(a) an entity of which a company or other entity has from time to time
direct or indirect control (as defined in article L.233-3 paragraphs I
and II of the French Commercial Code (as in force at the date of this
agreement)); or
(b) any other company or other entity in respect of which, in accordance
with the Approved Accounting Principles, the assets, liabilities,
income and expenses are added to those of the Parent in accordance
with the full consolidation method for the purposes of the preparation
of consolidated financial statements of the Parent;
"SUPPLY AGREEMENTS" means the agreements set out in part 1 of schedule 10;
"SYNDICATION DATE" means the earlier of:
(a) the date the Facility Agent notifies the Parent and the other Finance
Parties that primary syndication has been completed; and
(b) the date falling 90 days after the first Drawdown Date;
"SYNDICATION MEMORANDUM" has the meaning given to it in clause 3.4(a)
(Syndication);
"TARGET DAY" means a day on which the Trans-European Automated Real-Time
Gross Settlement Express Transfer system is operating;
"TAXES" means all present and future income and other taxes, levies,
assessments, imposts, deductions, charges, duties, compulsory loans and
withholdings (wherever imposed) and any charges in the nature of taxation
together with interest thereon and penalties and fines in relation thereto,
if any, and any payments made on or in relation thereof and "TAXATION"
shall be construed accordingly;
12
"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;
"TERM ADVANCE" means the principal amount of the advance made or to be made
under the Term Facility, as reduced from time to time by repayment or
prepayment;
"TERM COMMITMENT" means:
(a) in relation to a Lender identified in schedule 1, the amount set
opposite its name under the heading "Term Commitment" in schedule 1
and the amount of any other Term Commitment transferred to it under
this agreement; or
(b) in relation to any other Lender, the amount of any Term Commitment
transferred to it under this agreement,
to the extent not cancelled, reduced or transferred by it under this
agreement;
"TERM FACILITY" means the term loan facility made available by the Term
Lenders under clause 2.1(a) (Facilities);
"TERM FINAL REPAYMENT DATE" means 31 March 2011;
"TERM LENDERS" means:
(a) the persons identified in schedule 1 as participating in the Term
Facility; and
(b) each Transferee which has become a party to this agreement in relation
to the Term Facility in accordance with clause 26 (Changes to
parties),
in each case until its entire participation in the Term Facility has been
assigned, cancelled or transferred to a Transferee in accordance with
clause 26 (Changes to parties) and all amounts owing to it under the Senior
Finance Documents in relation to the Term Facility have been paid in full;
"TOTAL COMMITMENTS" means the aggregate of all the Commitments at any time;
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in part 1 of schedule 5;
"TRANSFEREE" has the meaning given to it in clause 26.2(a) (Assignments and
transfers by Lenders);
"TREATY ON EUROPEAN UNION" means the Treaty of Rome signed on 25 March 1957
as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty signed
on 7 February 1992;
"UGI" means UGI Corporation or any of its Affiliates;
"UGI BORDEAUX" means UGI Bordeaux Holding, a French societe par actions
simplifiee, with a share capital of E85,568,435, having its registered
office at 3 place de Saverne, Xxxxxxxx Xxx Xxxxxxxxxxx, 00000 Xxxxxxxxxx,
registered under number 452 431 232 RCS Nanterre;
"UGI BORDEAUX LETTER OF UNDERTAKINGS" means the letter to be executed by
UGI Bordeaux Holding prior to the first Drawdown Date and addressed 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;
13
"USD DOLLAR", "DOLLAR" or "USD" means the lawful currency for the time
being of the United States of America; and
"WARRANTY AGREEMENT" means the warranty agreement (convention de garantie)
dated 16 February 2001, as amended on 22 August 2001, made between Total
and the Parent in relation to the acquisition of Antargaz by the Parent.
1.2 CONSTRUCTION
In this agreement, unless a contrary intention appears, a reference to:
(a) a document being "IN THE AGREED FORM" means in a form agreed between
the Parent and the Facility Agent;
(b) an "AGREEMENT" includes any legally binding arrangement, concession,
contract, deed or franchise (in each case whether oral or written);
(c) an "AMENDMENT" includes any amendment, supplement, variation,
novation, modification, replacement or restatement and "amend",
"AMENDING" and "AMENDED" shall be construed accordingly;
(d) "ASSETS" includes property, business, undertaking and rights of every
kind, present, future and contingent (including uncalled share
capital) and every kind of interest in an asset;
(e) a "CONSENT" includes an authorisation, approval, exemption, licence,
order, permission or waiver;
(f) a "FILING" includes any filing, registration, recording or notice;
(g) a "GUARANTEE" includes:
(i) an indemnity;
(ii) a cautionnement simple, a cautionnement solidaire and a garantie
autonome; and
(iii) any other obligation (whatever called) of any person:
(A) to pay, purchase, provide funds (whether by the advance of
money, the purchase of or subscription for shares or other
investments, the purchase of assets or services, the making
of payments under an agreement or otherwise) for the payment
of, indemnify against the consequences of default in the
payment of, or otherwise be responsible for, any
indebtedness of any other person; or
(B) to be responsible for the performance of any obligations by
or the solvency of any other person,
and "GUARANTEED" and "GUARANTOR" shall be construed accordingly;
(h) "INCLUDING" means including without limitation and "INCLUDES" and
"INCLUDED" shall be construed accordingly;
(i) "INDEBTEDNESS" includes any obligation (whether incurred as principal,
guarantor or as surety) for the payment or repayment of money, whether
present or future, actual or contingent;
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(j) "LOSSES" includes losses, actions, damages, claims, proceedings,
costs, demands, expenses (including fees) and liabilities and "LOSS"
shall be construed accordingly;
(k) a "MONTH" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar
month, except that:
(i) if any such period would otherwise end on a day which is not a
Business Day, it shall end on the next Business Day in the same
calendar month or, if none, on the preceding Business Day; and
(ii) if a period starts on the last Business Day in a calendar month,
or if there is no numerically corresponding day in the month in
which that period ends, that period shall end on the last
Business Day in that later month,
and references to "MONTHS" shall be construed accordingly;
(l) a "PERSON" includes any person, individual, firm, company,
corporation, government, state or agency of a state or any undertaking
or other association (whether or not having separate legal
personality) or any two or more of the foregoing;
(m) a "REGULATION" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law) of any
governmental body, agency, department or regulatory, self-regulatory
or other authority or organisation; and
(n) the "WINDING-UP" of any person includes its dissolution and/or
termination and/or any equivalent or analogous proceedings under the
law of any jurisdiction in which that person is incorporated,
registered, established or carries on business or to which that person
is subject.
1.3 OTHER REFERENCES
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 the Senior Finance Documents) 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 provision of any Senior Finance
Document;
(d) a reference to a statute, statutory instrument or accounting standard
or any provision thereof is to be construed as a reference to that
statute, statutory instrument 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;
and
(g) words importing the plural shall include the singular and vice versa.
15
1.4 CASH COVER
(a) If a Borrower is obliged under this agreement to repay or prepay or
provide cash cover in relation to any contingent liability under a
Bank Guarantee, that Borrower shall, on the date for that repayment,
prepayment or provision of cash cover:
(i) by agreement with the relevant Beneficiary, reduce that
contingent liability by the relevant amount; or
(ii) pay the relevant amount to the credit of a Cash Collateral
Account.
(b) Any amounts standing to the credit of any Cash Collateral Account
shall bear interest at the rate normally offered to corporate
depositors on similar deposits by the Finance Party with which that
account is held.
1.5 CURRENCY CONVERSION
For the purposes of the Senior Finance Documents (other than clauses 19.11
(Financial Covenant - Leverage Ratio) to 19.14 (Calculation adjustments)
(inclusive)), if a Euro amount needs to be determined, any amount which is
denominated in a currency other than Euro will be converted into Euro using
the Euro Spot Rate on that date.
2. THE FACILITIES
2.1 FACILITIES
Subject to the other provisions of this agreement:
(a) the Term Lenders agree to make available to the Parent, a term loan
facility in a maximum aggregate principal amount not exceeding EUR
380,000,000, which shall be available by way of a single Term Advance
in Euro;
(b) the Revolving Lenders agree to make available to the Borrowers a
revolving credit facility in a maximum aggregate principal amount not
exceeding EUR 50,000,000 (or its equivalent in the Optional Currency),
which shall be available by way of Revolving Advances and Bank
Guarantees in Euro and/or the Optional Currency).
2.2 PURPOSE
(a) The proceeds of the Term Advance shall be applied in or towards
discharging existing indebtedness of the Parent under:
(i) the Existing Term Facility; and
(ii) the Intra-Group Bonds (so as to allow Xxxxx to discharge its
existing indebtedness under the High Yield Notes); and
(iii) other general corporate purposes (including payment of the
Refinancing Costs).
(b) The proceeds of the Revolving Advances and each Bank Guarantee shall
be used for the working capital requirements and other general
corporate purposes of Group Companies arising after the first Drawdown
Date (excluding any payment of the purchase price for the assets
acquired in accordance with clause 19.4 (Acquisition and investment
undertakings)), provided however that a Revolving Advance may be drawn
down by the Parent or Antargaz (as the case may be) on the first
Drawdown Date for the purpose of discharging existing
16
indebtedness of the Parent or Antargaz (as the case may be) under the
Existing Revolving Facility.
(c) No Finance Party shall be obliged to enquire about, or be responsible
for, the use or application of amounts borrowed under this agreement.
2.3 PARENT AS OBLIGORS' AGENT
Each Obligor irrevocably appoints the Parent as its agent for the purpose
of:
(a) executing and delivering on its behalf any Accession Document and any
other agreement or document capable of being entered into by that
Obligor under or in connection with the Senior Finance Documents;
(b) giving and receiving any notice or instruction under or in connection
with any Senior Finance Document (including any Drawdown Request); and
(c) agreeing and executing all consents, waivers, agreements and
amendments (however fundamental and notwithstanding any increase in
obligations of or other effect on an Obligor) entered into in
connection with the Senior Finance Documents (including confirmation
of continuation of guarantee obligations in connection with any
amendment or consent in relation to the Facilities).
The appointment of the Parent as the agent of an Obligor for any purpose
set out above does not prevent that Obligor from taking the relevant action
in its own name.
3. PARTICIPATION OF LENDERS
3.1 BASIS OF PARTICIPATION
Subject to the other provisions of this agreement:
(a) each relevant Lender will participate in the Term Advance in the
proportion which its Term Commitment bears to the total Commitments in
relation to the Term Facility as at the relevant Drawdown Date; and
(b) each Revolving Lender will participate in each Drawing of the
Revolving Facility (in the case of a Bank Guarantee by way of
indemnity in favour of the Issuing Lender under clause 6.4(b)
(Indemnities)) in the proportion which its Revolving Commitment bears
to the total Commitments in relation to the Revolving Facility as at
the relevant Drawdown Date.
3.2 LENDING OFFICE
(a) Each Lender will participate in each Drawing through its Lending
Office.
(b) If any Lender changes its Lending Office for the purpose of the
Facilities, that Lender will, as soon as reasonably practicable after
that change, notify it to the Facility Agent and the Parent and, until
it does so, the Agents and the Parent will be entitled to assume that
no such change has taken place.
(c) Any Lender may nominate a different Lending Office for the purposes of
making a particular Drawing or a particular type of Drawing to an
Obligor in which event such Lending Office shall be, for the purposes
of this agreement, its Lending Office for that Drawing or type of
Drawing but not otherwise.
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3.3 RIGHTS AND OBLIGATIONS OF FINANCE PARTIES
(a) The rights and obligations of each of the Finance Parties under the
Senior Finance Documents are several (conjointes mais non solidaires).
The failure by a Finance Party to comply with its obligations under
any Senior Finance Document shall not:
(i) result in any other Finance Party incurring any liability; or
(ii) relieve any Obligor or any other Finance Party from its
obligations under the Senior Finance Documents.
(b) Subject to the other provisions of the Senior Finance Documents, each
Finance Party has the right to protect and enforce its rights arising
out of the Senior Finance Documents and it will not be necessary for
any other Finance Party to be joined as an additional party in any
proceedings brought for the purpose of protecting or enforcing those
rights.
3.4 SYNDICATION
The Facilities are being made available by the Lenders with the intention
(but not the obligation) that the Facility Agent should co-ordinate primary
syndication. Each Obligor undertakes to assist and co-operate with the
Facility Agent in syndication in such a manner and to such an extent as the
Facility Agent may reasonably request, including by:
(a) the preparation, review and approval of a syndication information
memorandum in relation to the Group and the business, trading,
prospects, financial condition, assets and liabilities of the Group as
a whole and of each Group Company;
(b) participating in presentations to potential Lenders concerning the
activities of the Group as a whole and of each Group Company; and
(c) selecting Interest Periods in relation to Advances no longer than one
month in relation to all Advances made on or before the date falling
90 days after the first Drawdown Date.
4. CONDITIONS PRECEDENT
4.1 INITIAL CONDITIONS PRECEDENT
(a) The Lenders shall not be under any obligation to make the first
Drawing available to any Borrower unless:
(i) the Facility Agent has received all of the documents and
information specified in schedule 3 (Documentary Conditions
Precedent) in form and substance satisfactory to it (acting
reasonably) (or the Facility Agent is satisfied that, immediately
after the making of the Term Advance to be made on the first
Drawdown Date, it will receive those documents and that
information in form and substance satisfactory to it (acting
reasonably)); and
(ii) the relevant funds are available in the relevant money markets to
make the relevant Drawing available.
(b) The Facility Agent shall deliver to the Parent on the Signing Date a
letter containing the list of the documents and information specified
in schedule 3 (Documentary Conditions Precedent) which it has received
in form and substance satisfactory to it on or before the Signing
Date.
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4.2 FAILURE TO SATISFY INITIAL CONDITIONS PRECEDENT
Except as the Facility Agent (acting on the instructions of all the
Lenders) agrees otherwise, if the conditions referred to in clause 4.1
(Initial conditions precedent) have not been fulfilled or waived in writing
on or before the last day of the Availability Period for the Term Facility:
(a) all the Commitments will automatically be cancelled; and
(b) the Lenders will cease to have any obligation to make any Drawing
available.
4.3 ADDITIONAL CONDITIONS PRECEDENT TO DRAWINGS
Subject to clause 4.4 (Rollover Advances) and subject (in respect of the
first Drawing) to clause 20.3 (Certain Funds Period), the obligations of
the Lenders to make any Drawing available are subject to the conditions
precedent that, on both the date of the relevant Drawdown Request and the
relevant Drawdown Date:
(a) no Default has occurred and is continuing or will occur as a result of
making that Drawing;
(b) the representations and warranties set out in clause 18
(Representations and Warranties) which are made or repeated on those
dates are true and accurate in all material respects by reference to
the facts and circumstances then subsisting and will remain true and
accurate in all material respects immediately after that Drawing is
made; and
(c) the relevant funds are available in the relevant money markets to make
the relevant Drawing available.
4.4 ROLLOVER ADVANCES
If, in relation to a Revolving Advance (the "ROLLOVER ADVANCE"):
(a) either of the conditions specified in clause 4.3(a) or (b) (Additional
conditions precedent to Drawings) is not satisfied on the Drawdown
Date for the new Revolving Advance;
(b) the amount of the Rollover Advance does not exceed the amount of an
existing Revolving Advance (the "EXISTING REVOLVING ADVANCE") which is
due to be repaid on the Drawdown Date of the new Revolving Advance;
and
(c) the proceeds of the Rollover Advance are applied in repaying the
existing Revolving Advance,
then, unless any notice is then outstanding under clause 20.2 (Cancellation
and repayment), the Lenders may not refuse to advance the Rollover Advance
by reason of the conditions specified in clause 4.3(a) or (b) (Additional
conditions precedent to Drawings) not being satisfied.
5. DRAWDOWN PROCEDURES
5.1 DELIVERY OF DRAWDOWN REQUESTS
In order to utilise a Facility, the relevant Borrower must deliver to the
Facility Agent a duly completed Drawdown Request:
(a) in the case of any Advance to be borrowed on the first Drawdown Date,
not later than 10:00 am on that date; and
19
(b) in the case of any other Advance, not later than 10:00 am three
Business Days before the proposed Drawdown Date.
5.2 CONTENT OF DRAWDOWN REQUESTS
Each Drawdown Request delivered to the Facility Agent must be in the
applicable form set out in schedule 4 and must specify (or attach, as
appropriate) the following:
(a) which Facility is to be utilised;
(b) the identity of the Borrower;
(c) the proposed Drawdown Date, which must be a Business Day during the
relevant Availability Period;
(d) if the Drawing is by way of Advance, the amount and currency of that
Advance, which must:
(i) in the case of a Term Advance, be an amount in Euro equal to the
undrawn Term Commitments;
(ii) in the case of a Revolving Advance, be in an amount equal to or
less than (and in the case of a Revolving Advance in the Optional
Currency have a Euro Equivalent equal to or less than) the
undrawn portion of the total Commitments in relation to the
Revolving Facility and, if less (save for a Revolving Advance
made in accordance with clause 6.9 (Revolving Advance to fund
demands under Bank Guarantees)):
(A) in the case of a Revolving Advance in Euro, a minimum of EUR
2,500,000 and an integral multiple of EUR 500,000; and
(B) in the case of a Revolving Advance in the Optional Currency,
an amount in the Optional Currency having an Euro Equivalent
of not less than EUR 2,500,000 or, if higher, being the Euro
Equivalent of an integral multiple of EUR 500,000; or
(e) if the Drawing is by way of an Advance, the duration of the Interest
Period applicable to the Revolving Advance or the first Interest
Period applicable to the relevant Term Advance (as the case may be),
which must comply with clause 8 (Selection of Interest Periods);
(f) if the Drawing is by way of an Advance, details of the payee and the
account to which the proceeds of the Drawing are to be paid, provided
that the proceeds of the Term Advance will be paid as follows:
(i) for the portion of the Term Advance to be used for the
refinancing of the Existing Term Facility, by direct payment to
the agent under the Existing Facilities;
(ii) for the portion of the Term Advance to be used for the payment of
fees and expenses incurred by the Parent in connection with the
Senior Finance Documents, by transfer to the Parent's account
specified in the Drawdown Request;
(iii) for the balance the Term Advance, by transfer to the Refinancing
Cash Collateral Account.
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(g) if the Drawing is by way of a Bank Guarantee:
(i) the amount and currency of that Bank Guarantee, which must be in
an amount equal to or less than (and in the case of a Bank
Guarantee in the Optional Currency have a Euro Equivalent equal
to or less than) the undrawn portion of the total Commitments in
relation to the Revolving Facility and, if less:
(A) in the case of a Bank Guarantee denominated in Euro, a
minimum of EUR 100,000; or
(B) in case of a Bank Guarantee denominated in the Optional
Currency, an amount in the Optional Currency having an Euro
Equivalent of not less than EUR 100,000;
(ii) the Beneficiary of that Bank Guarantee;
(iii) the expiry date of that Bank Guarantee, which must be a date on
or before the Revolving Facility Repayment Date;
(iv) the obligation to which the issue of that Bank Guarantee relates;
and
(v) the execution copy of the Bank Guarantee to be issued (which must
be in a form previously agreed by the Parent, the Facility Agent
and the relevant Issuing Lender).
5.3 REQUESTS IRREVOCABLE
A Drawdown Request once given may not be withdrawn or revoked.
5.4 NUMBER AND FREQUENCY OF REQUESTS
(a) No more than one Term Advance in respect of the Term Facility may be
borrowed.
(b) No more than one Drawing of the Revolving Facility may be requested in
any period of five consecutive Business Days and not more than three
Drawings of the Revolving Facility may be borrowed in any calendar
month. No more than eight Revolving Advances (excluding any Revolving
Advance made in accordance with clause 6.9 (Revolving Advance to fund
demands under the Bank Guarantees) and fifteen Bank Guarantees (or, in
each case, any higher number agreed by the Facility Agent) may be
outstanding at any one time.
(c) No Revolving Advance may be borrowed unless the Term Advance has been,
or is being, advanced in full on or before the proposed Drawdown Date
of the relevant Revolving Advance.
5.5 NOTICE TO THE LENDERS OF A PROPOSED DRAWING
The Facility Agent will promptly give each Lender details of each Drawdown
Request received and of the amount of that Lender's participation in the
Drawing referred to in that Drawdown Request.
5.6 MAKING OF ADVANCES
Subject to the provisions of this agreement, each Lender will make
available to the Facility Agent its participation in the relevant Advance
on the relevant Drawdown Date.
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5.7 ISSUE OF BANK GUARANTEES
(a) Subject to the provisions of this agreement, the Issuing Lender will
issue the relevant Bank Guarantee requested by delivery of that Bank
Guarantee to (or to the order of) the relevant Beneficiary on the
relevant Drawdown Date.
(b) No Bank Guarantee shall be issued for the account of a Group Company
which is not a Borrower.
(c) Any Lender which agrees with the Parent and the Facility Agent that it
will issue Bank Guarantees will be the Issuing Lender. The Facility
Agent shall notify the Lenders of any such agreement.
5.8 EXPIRY
No Drawing of the Revolving Facility will be permitted which gives rise to
an actual or contingent liability of the relevant Borrower to any Lender
which may mature after or otherwise extend beyond the Revolving Facility
Repayment Date.
5.9 AUTOMATIC CANCELLATION
Any part of the Term Commitments undrawn on the last day of the
Availability Period for the Term Facility will be automatically cancelled.
5.10 REVOLVING FACILITY COMMITMENT
On the date on which any Drawing is requested (whether or not in the
Optional Currency) under the Revolving Facility, the Facility Agent shall
determine whether the aggregate of:
(a) the amount in Euro of that Drawing or, if denominated in the Optional
Currency, the Euro Equivalent (determined as at or about 11:00 am
three Business Days prior to the relevant Drawing Date) of that
Drawing; and
(b) the Euro Equivalent (determined as at or about 11:00 am three Business
Days prior to the relevant Drawing Date) of each existing Revolving
Advance denominated in the Optional Currency which will be outstanding
on the relevant Drawing Date; and
(c) each existing Revolving Advance denominated in Euro which will be
outstanding on the relevant Drawing Date; and
(d) the Euro Equivalent (determined as at or about 11:00 am two Business
Days prior to the relevant Drawing Date) of the total Contingent
Liability of all the Lenders under Bank Guarantees already issued and
denominated in the Optional Currency which will be outstanding on the
relevant Drawing Date; and
(e) the total Contingent Liability of all the Lenders under Banks
Guarantees already issued and denominated in Euro which will be
outstanding on the relevant Drawing Date,
exceeds the total Commitments in relation to the Revolving Facility. In the
event that the total Commitments in relation to the Revolving Facility are
so exceeded the requested Drawing under the Revolving Facility shall be
reduced by the amount by which the total Commitments in relation to the
Revolving Facility are so exceeded.
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5.11 OPTIONAL CURRENCY AVAILABILITY
If a Borrower requests a Drawing denominated in the Optional Currency under
the Revolving Facility and, before 10:00 am on the Rate Fixing Day for that
Drawing, the Facility Agent receives notice from a Lender (an "AFFECTED
LENDER") that:
(a) the Optional Currency is not readily available to it in the amount
required; or
(b) compliance with its obligation to participate in a Drawing in the
Optional Currency would contravene a law or regulation applicable to
that Affected Lender, then:
(i) the Facility Agent will notify the relevant Borrower to that
effect by 12.00 am (noon) on that Rate Fixing Day;
(ii) following any such notification the relevant Borrower may notify
the Facility Agent by 2.00 pm on that Rate Fixing Day that it no
longer requires that Drawing to be made;
(iii) if the Facility Agent does not receive notification under clause
5.11(b)(ii), the relevant Borrower and the Facility Agent shall
agree to adjust the amount of the Drawing to exclude the
participation of the Affected Lender; and
(iv) in the case of a Drawing by way of Advance, the Affected Lender
shall make a separate Revolving Advance in Euro in an amount
equal to the Euro Equivalent of the Affected Lender's proposed
participation in the Advance requested.
5.12 OPTIONAL CURRENCY FLUCTUATIONS
(a) The Facility Agent shall, if so requested by the Majority Lenders:
(i) calculate the aggregate Euro Equivalent of all outstanding
Drawings under the Revolving Facility as at the end of the
quarter in which that request was made (or on any other date
reasonably requested by the Majority Lenders); and
(ii) if the amount calculated under clause 5.12(a)(i) exceeds the
aggregate Revolving Commitments by more than five per cent.,
notify the Parent to that effect.
(b) Within five Business Days of any notification under clause
5.12(a)(ii), the Parent shall prepay (or procure the prepayment of)
Drawings under the Revolving Facility so as to reduce the aggregate
Euro Equivalent of all outstandings under the Revolving Facility to an
amount not exceeding the aggregate Revolving Commitments.
6. DEMANDS UNDER BANK GUARANTEES
6.1 DEMANDS
Each Issuing Lender shall, as soon as reasonably practicable after receipt
by it of any demand under any Bank Guarantee, notify the Facility Agent of
the amount of that demand and the Facility Agent, as soon as reasonably
practicable after receipt of any such notice, shall notify the Parent, the
Borrower for whose account that Bank Guarantee was issued (the "ACCOUNT
PARTY") and the Revolving Lenders.
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6.2 PAYMENTS
(a) The Account Party shall, immediately after receipt of any notice from
the Facility Agent under clause 6.1 (Demands), pay to the Facility
Agent (for the account of the relevant Issuing Lender) the amount
demanded from that Issuing Lender (as notified to the Facility Agent
under clause 6.1 (Demands)), less any amount standing to the credit of
any Cash Collateral Account which has been paid to the credit of that
Cash Collateral Account to provide cash cover in relation to the Bank
Guarantee under which the relevant Issuing Lender has received demand
(a "RELEVANT CREDIT").
(b) The Facility Agent shall pay to the relevant Issuing Lender any amount
received by it from the Account Party under clause 6.2(a) together
with any Relevant Credit.
(c) The Facility Agent is irrevocably authorised by the Account Party,
following a demand under any Bank Guarantee, to apply any Relevant
Credit in satisfaction of the Account Party's obligations in relation
to that Bank Guarantee.
6.3 AUTHORITY TO PAY
The Account Party irrevocably authorises each Issuing Lender to pay
(without investigation or confirmation by it) any demand which appears on
its face to be validly made under any Bank Guarantee issued by that Issuing
Lender and agrees that, as between itself, the relevant Issuing Lender and
the Lenders, that demand (in the absence of manifest error) shall be
conclusive evidence that the demand has been properly made.
6.4 INDEMNITIES
(a) The Account Party irrevocably and unconditionally agrees to indemnify
each Issuing Lender on demand against all losses which may be suffered
or incurred by that Issuing Lender under or in connection with any
Bank Guarantee.
(b) Without prejudice to the Account Party's obligations under clause
6.4(a), each Revolving Lender irrevocably, unconditionally and
severally agrees to pay to each Issuing Lender on demand an amount
equal to its proportion of the amount which that Issuing Lender has
paid under the relevant Bank Guarantee less the amount recovered from
the Account Party under clause 6.4(a). No Revolving Lender is liable
under this clause 6.4(b) for an amount greater than its proportion of
the Contingent Liability under the relevant Bank Guarantee (unless the
relevant Revolving Lender fails to pay the relevant Issuing Lender on
demand, in which event it will compensate that Issuing Lender for all
losses it suffers as a result of that failure).
(c) The Account Party irrevocably and unconditionally agrees to pay to
each Revolving Lender on demand an amount equal to all payments by
that Revolving Lender under clause 6.4(b) and to indemnify that
Revolving Lender against all other losses which may be suffered or
incurred by that Revolving Lender under or in connection with its
obligations under clause 6.4(b).
6.5 INTEREST
The Account Party shall pay interest on all amounts paid by an Issuing
Lender under or in connection with any Bank Guarantee or by any Revolving
Lender under clause 6.4(b) (Indemnities) from (and including) the date of
payment by that Issuing Lender or that Revolving Lender up to (and
including) the date of payment, calculated and payable in accordance with
clause 7.4 (Default interest).
6.6 CONTINUING INDEMNITY
(a) The indemnities contained in clause 6.4 (Indemnities) (the
"INDEMNITIES"):
24
(i) will remain in full force and effect until all the amounts to
which the Indemnities are expressed to relate have been paid in
full; and
(ii) are in addition to and are not in any way prejudiced by any other
security now or subsequently held by any person.
(b) Any settlement or discharge of any claim under any of the Indemnities
shall be conditional on no payment made under the Indemnities being
avoided or set aside or ordered to be refunded by virtue of any
provision of any enactment relating to bankruptcy, insolvency or
liquidation.
6.7 NO DISCHARGE
The Indemnities shall not be discharged, diminished or in any way adversely
affected as a result of any of the following (whether or not known to any
Obligor or Finance Party):
(a) any time or waiver given to, or composition made with, any Obligor or
any other person;
(b) any amendment to, or replacement of, any Senior Finance Document
(however fundamental), or any other agreement or security;
(c) the taking, variation, compromise, renewal, release or refusal or
neglect to perfect or enforce any right, remedies or security against
any Obligor or any other person;
(d) any purported obligation of any Obligor or any other person to any
Finance Party (or any security for that obligation) becoming wholly or
partly void, invalid, illegal or unenforceable for any reason;
(e) any incapacity, lack of power, authority or legal personality or any
change in the constitution of, or any amalgamation, consolidation or
reconstruction of, any Obligor, Finance Party or other person;
(f) any Obligor or other person becoming insolvent going into receivership
or liquidation, having an administrator appointed or becoming subject
to any other procedure for the suspension of payments to or protection
of creditors; or
(g) any other act, omission, circumstance, matter or thing which, but for
this provision, might operate to impair the Indemnities.
6.8 NO SUBROGATION
No Account Party shall, by virtue of any payment made under the
Indemnities, claim any right of subrogation, contribution or indemnity
against any person for so long as any amount remains payable or capable of
becoming payable under any Senior Finance Document.
6.9 REVOLVING ADVANCE TO FUND DEMANDS UNDER BANK GUARANTEES
(a) Without prejudice to the relevant obligations of the Account Party
under clause 6.2 (Payments), forthwith on the making of a demand
pursuant to a Bank Guarantee (other than a demand made after the end
of the Availability Period for the Revolving Facility), unless
otherwise agreed between the Facility Agent and the Parent, the
liability of the Account Party to indemnify the Issuing Lender in
respect of that demand shall be deemed to have been fulfilled on the
date of satisfaction by the Issuing Lender of that demand and the
Account Party shall be deemed to have drawn a Revolving Advance in the
currency of the relevant Bank Guarantee in the amount of that
resulting liability so paid by the Issuing Lender, the
25
proceeds of which shall be deemed forthwith to have been applied in
discharge of that liability. The participation of each Revolving
Lender in any such Advance shall be in the amount equal to the amount
of its participation in the relevant Bank Guarantee by way of
indemnity under clause 6.4(b) (Indemnities).
(b) The Interest Period relating to any Revolving Advance deemed made
pursuant to clause 6.9(a) shall be deemed to begin on (and the
Drawdown Date for that Revolving Advance (for the purpose of
determining the applicable EURIBOR shall be deemed to be)) the date on
which the relevant Issuing Lender makes payment under the relevant
Bank Guarantee and that Interest Period shall be one month (or any
other period which the Facility Agent and the Parent agree). All
provisions of this agreement relating to Revolving Advances (as
applicable) (including the provisions of clause 4 (Conditions
precedent) and all provisions relating to the payment of interest and
the repayment and prepayment of principal in respect of Revolving
Advances) shall apply to any such Revolving Advance.
7. INTEREST
7.1 RATE
The rate of interest on each Advance for each of its Interest Periods is
the rate per annum determined by the Facility Agent to be the aggregate of:
(a) the Margin for that Advance;
(b) EURIBOR or LIBOR, as the case may be, for that Advance during that
Interest Period; and
(c) any applicable Mandatory Cost.
7.2 CALCULATION
Interest will accrue daily from and including the first day of an Interest
Period and be calculated on the basis of a 360 day year.
7.3 PAYMENT
Each Borrower will pay interest accrued on each Advance made to it to the
Facility Agent (for the account of the Lenders) in arrear on the last day
of each Interest Period for that Advance and also, where that Interest
Period is longer than six months, on the last day of each consecutive
period of six months from (and including) the first day of that Interest
Period.
7.4 DEFAULT INTEREST
If an Obligor fails to pay any amount under any Senior Finance Document on
its due date (including any amount payable under this clause 7.4) (an
"OVERDUE AMOUNT"), that Obligor will pay default interest on that overdue
amount from its due date to the date of actual payment (both before and
after judgement) at a rate (the "DEFAULT RATE") determined by the Facility
Agent to be one per cent. per annum above:
(a) where the overdue amount is principal which has become due and payable
before the expiry of the relevant Interest Period, the rate applicable
to that principal immediately before the date it fell due (but only
for the period from that due date to the end of the relevant Interest
Period); or
(b) in any other case (including principal falling within clause 7.4(a)
once the relevant Interest Period has expired), the rate which would
be payable if the overdue amount was an Advance
26
made for a period equal to the period of non-payment divided into
successive Interest Periods of a duration selected by the Facility
Agent (each a "DEFAULT INTEREST PERIOD").
For the purposes of determining the rate of interest on an overdue amount
under this clause 7.4, the Margin will be:
(a) if that amount comprises principal or interest or any other amount due
in relation to a Facility, the Margin relating to that Facility; or
(b) if that amount is not properly attributable to a Facility, the Margin
under the Term Facility.
7.5 COMPOUNDING
Default interest will be payable on demand by the Facility Agent and will
be compounded in accordance with article 1154 of the French Civil Code.
7.6 MARGIN ADJUSTMENT
(a) Subject to clauses 7.6(b) to (d) (inclusive), if at any time as from
the date of delivery to the Facility Agent of the Annual Management
Accounts for the Financial Year ending 30 September 2006, the Annual
Management Accounts or the Half-Year Accounts (as the case may be) as
at the most recent Accounting Half-Year end date show that, for the 12
month period ending on such date, the ratio of Total Net Debt at the
end of such period to EBITDA for such period is:
(i) equal to or greater than 3.5:1, the Margin applicable to the Term
Facility and the Revolving Facility will be 1.15 per cent. per
annum;
(ii) less than 3.5:1 but equal to or greater than 3.0:1, the Margin
applicable to the Term Facility and the Revolving Facility will
be 0.95 per cent. per annum;
(iii) less than 3.0:1 but equal to or greater than 2.5:1, the Margin
applicable to the Term Facility and the Revolving Facility will
be 0.80 per cent. per annum;
(iv) less than 2.5:1, the Margin applicable to the Term Facility and
the Revolving Facility will be 0.70 per cent. per annum.
(b) Any change in the Margin under clause 7.6(a) shall take effect during
(but only during) the period from (and including) the date on which
the Facility Agent has received the Annual Management Accounts or
Half-Year Accounts, as the case may be (the "ACCOUNTS") (together with
the corresponding compliance certificates in accordance with clause
19.10(d) (Compliance certificates)) until (but excluding) the date (a
"READJUSTMENT DATE") which is the date on which the Facility Agent
receives the Accounts as at the end date of the immediately following
Accounting Half Year (together with the corresponding compliance
certificate in accordance with clause 19.10(d) (Compliance
certificates)). On each Readjustment Date, the Margin applicable to
the Term Facility and the Revolving Facility shall be determined in
accordance with paragraph (a) of this clause 7.6.
(c) No decrease in the Margin shall take effect if an Event of Default is
outstanding. If an Event of Default occurs, the Margin applicable to
the Term Facility and the Revolving Facility shall immediately return
to (if it is not already) 1.15 per cent. per annum, until the time
when no Event of Default is outstanding (when the Margin will again be
determined in accordance with this clause 7.6).
27
(d) If:
(i) the Margin is:
(A) decreased in accordance with this clause 7.6 by reference to
Annual Management Accounts or Half-Year Accounts; or
(B) Annual Management Accounts or Half-Year Accounts indicate
that no increase in the Margin is required; and
(ii) subsequent Annual Accounts show that the Annual Management
Accounts or Half-Year Accounts were erroneous or incomplete and
as a result the margin should have been higher than the level
shown by those Annual Management Accounts or Half-Year Accounts,
the Parent shall, promptly following demand by the Facility Agent, pay
(or procure that the Borrowers pay) to the Facility Agent for the
account of the Lenders the additional amount which would have been
payable by the Borrowers if the Margin had been increased to the
correct level during the relevant periods as shown by the relevant
Annual Accounts. The Facility Agent's determination of any adjustments
payable under this clause 7.6(d) shall, except in the case of manifest
error, be conclusive.
7.7 NOTIFICATION
The Facility Agent will notify the Parent and the Lenders of each
determination of an interest rate (including a default rate) and each
selection of a Default Interest Period under this clause 7 as soon as
reasonably practicable after any such determination or selection is made.
7.8 EFFECTIVE GLOBAL RATE
To comply with the provisions of articles L.313-4 to L.313-5 of the French
Monetary and Financial Code (Code Monetaire et Financier), the Parent and
the Lenders declare that the effective global rate for each of the
Facilities cannot be calculated for the total duration of this agreement,
primarily because of the floating rate of interest applicable to the
Facilities and the relevant Borrower's selection of the duration of each
Interest Period. However an example of the effective global rate
calculation and the rate for a one month period shall be provided to the
Parent by the Facility Agent on or before the date of this agreement
substantially in the form set out in schedule 8.
8. SELECTION OF INTEREST PERIODS
8.1 TERM FACILITY
(a) Subject to clause 3.4(c) (Syndication) and the other provisions of
this agreement, each Interest Period for the Term Advance shall be
one, two, three or six months as notified by the relevant Borrower to
the Facility Agent no later than 10:00 am three Business Days before
the start of that Interest Period (or any other period not exceeding
12 months to which the Facility Agent (acting on the instructions of
all the Lenders) may agree).
(b) The first Interest Period for the Term Advance will start on its
Drawdown Date and each subsequent Interest Period for the Term Advance
will start on the last day of the immediately preceding Interest
Period for the Term Advance.
(c) Each relevant Borrower will select Interest Periods for the Term
Advance so that each Repayment Date for the Term Facility will fall on
the last day of an Interest Period and, for this purpose, that
Borrower may split the Term Advance into two separate Term Advances
28
one of which shall (if applicable) be in an amount at least equal to
the amount of the instalment due on the next following Repayment Date
relating to the Term Advance and will have an Interest Period expiring
on that Repayment Date.
(d) If a Borrower fails to select an Interest Period then, save as
provided in this clause 8, it will be deemed to have selected a period
of three months or any shorter period which is necessary to comply
with the requirements of clause 8.1(c).
8.2 REVOLVING FACILITY
Subject to clause 3.4(c) (Syndication) and the other provisions of this
agreement, the Interest Period for each Revolving Advance shall be one,
two, three or six months, as selected by the relevant Borrower in the
relevant Drawdown Request (or any other period not exceeding 12 months to
which Facility Agent (acting on the instructions of all the Lenders) may
agree).
8.3 NON-BUSINESS DAYS
If any Interest Period would, but for this clause 8.3, end on a day which
is not a Business Day, that Interest Period shall be extended to (and the
Maturity Date in the case of a Revolving Advance shall be) the immediately
following Business Day, unless the result of that extension would be to
carry that Interest Period into another calendar month, in which case that
Interest Period shall end on (and that Maturity Date shall be) the
immediately preceding Business Day.
9. MARKET DISRUPTION
9.1 MARKET DISRUPTION NOTICE
If, in relation to any Advance (an "AFFECTED ADVANCE"):
(a) the Facility Agent determines that, by reason of circumstances
affecting the applicable interbank market generally, adequate and fair
means do not or will not exist for ascertaining EURIBOR or LIBOR (as
the case may be) applicable to that Affected Advance for an Interest
Period; or
(b) Lenders whose participations in that Affected Advance exceed 50 per
cent. of the amount of that Affected Advance notify the Facility Agent
that EURIBOR or LIBOR (as the case may be) would not accurately
reflect the cost to those Lenders of making or maintaining their
participations in that Affected Advance for an Interest Period, the
Facility Agent will give notice of that event to the Parent and the
Lenders (a "MARKET DISRUPTION NOTICE").
9.2 SUBSTITUTE BASIS
During the 30 days following the giving of a Market Disruption Notice, the
Affected Advance will be made and the Facility Agent and the Parent will
negotiate in good faith in order to agree on a mutually acceptable
substitute basis for calculating the interest payable on the relevant
Affected Advance. If a substitute basis is agreed within that period, then
it shall apply in accordance with its terms (and may be retrospective to
the beginning of the relevant Interest Period). The Facility Agent will not
agree a substitute basis under this clause 9.2 without first obtaining the
approval of the Lenders.
9.3 COST OF FUNDS
Unless and until a substitute basis is agreed under clause 9.2 (Substitute
basis), the interest payable on each Lender's participation in the relevant
Affected Advance for the relevant Interest Period will be the rate
certified by that Lender to be its cost of funds (from any source which it
may reasonably select) plus the applicable Margin.
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9.4 UNAVAILABILITY OF EURO
If, in relation to any proposed Drawing by way of an Advance, Lenders whose
participations in that Advance exceed 50 per cent. of the amount of that
Advance notify the Facility Agent that deposits in Euro will not be readily
available to them in the European interbank market in order to enable them
to fund their participations in that Advance, the Lenders will not be
obliged to participate in the proposed Drawing and any Drawdown Request
which has been served by the relevant Borrower will be deemed withdrawn.
10. REPAYMENT OF DRAWINGS
10.1 TERM ADVANCE
(a) The Parent shall repay the Term Advance on the Term Final Repayment
Date.
(b) No amount repaid or prepaid in relation to the Term Advance may be
redrawn.
10.2 REVOLVING ADVANCES REPAYMENT
(a) Each Borrower of any Revolving Advance shall repay that Revolving
Advance on its Maturity Date.
(b) On the Maturity Date of the first Revolving Advance made on the first
Drawdown Date pursuant to clause 2.2(b) (Purpose), as the case may be,
the Parent shall repay that Revolving Advance out of the cash of the
Parent (and not out of the proceeds of a Rollover Advance).
(c) Any amount repaid under the Revolving Facility may be redrawn in
accordance with clause 5 (Drawdown procedures).
(d) On the Revolving Facility Repayment Date:
(i) the Revolving Facility will expire and the Revolving Commitment
of each Lender will be reduced to zero; and
(ii) each Borrower will repay or prepay all amounts outstanding and
owed by it in relation to the Revolving Facility (together with
all its Contingent Liabilities).
(e) The Parent shall procure that for a period of at least 10 consecutive
Business Days during each calendar year (as of 2006), the total amount
of all Revolving Advances shall be reduced to zero;
11. PREPAYMENT AND CANCELLATION
11.1 VOLUNTARY PREPAYMENT
A Borrower may prepay all or any part of the Term Advance at any time
without premium or penalty, provided that:
(a) the Facility Agent has received no less than three Business Days'
irrevocable notice from the Parent of the proposed date and amount of
the prepayment;
(b) any partial prepayment is in a minimum amount of EUR 5,000,000 and, if
greater an integral multiple of EUR 1,000,000; and
30
(c) if paid other than on the last day of the Interest Period for the Term
Advance, the relevant Borrower indemnifies the Lenders under clause
28.1 (General indemnity and breakage costs).
11.2 ADDITIONAL RIGHT OF PREPAYMENT
If:
(a) interest on a Lender's participation in an Advance is being calculated
in accordance with clause 9.3 (Cost of funds);
(b) a Borrower is required to pay any additional amount to a Lender under
clause 13.1 (Gross up); or
(c) the Parent is required to pay any amount to a Lender under clause 14.1
(Increased costs),
then, without prejudice to the obligations of any Obligor under those
clauses, the Parent may, whilst the circumstances continue, serve a notice
of prepayment and cancellation on that Lender through the Facility Agent.
If the Parent serves any such notice:
(a) on the date which is ten Business Days after the date of service of
the notice, each Borrower shall:
(i) prepay that Lender's participation in all Advances drawn by it
together which accrued interest on those Advances and all other
amounts payable to that Lender under the Senior Finance
Documents; and
(ii) provide cash cover in accordance with clause 1.4 (Cash cover) in
an amount equal to the total Contingent Liability (if any) of
that Lender in relation to Bank Guarantees; and
(b) all that Lender's Commitments shall be cancelled and reduced to zero
as at the date of service of the notice.
11.3 SALE, CHANGE OF CONTROL AND LISTING
(a) If a Change of Control, Listing (other than a Permitted Listing) or
Sale occurs:
(i) all of the Lenders' Commitments will immediately be cancelled and
reduced to zero; and
(ii) each Borrower will immediately prepay all Advances drawn by it,
all Bank Guarantees issued for its account and all sums advanced
to it.
(b) For the purposes of this agreement:
(i) a "CHANGE OF CONTROL" will occur if:
(A) UGI ceases to hold more than 50 per cent. of the equity
share capital of the Parent or equity share capital having
the right to cast more than 50 per cent. of the votes
capable of being cast in general meetings of the Parent; or
(B) UGI ceases after the date of this agreement to have the
right to determine the composition of a majority of the
board of directors (or like body) of the Parent; or
31
(C) UGI ceases after the date of this agreement to have
"control" (as defined in article L. 233-3 paragraphs I and
II of the French Commercial Code) of the Parent;
(ii) "LISTING" means a listing of all or any part of the share capital
of the Parent on any investment exchange or any other sale or
issue by way of flotation or public offering or any equivalent
circumstances in relation to the Parent in any jurisdiction or
country;
(iii) "SALE" means a disposal (whether in a single transaction or a
series of related transactions) of all or substantially all of
the assets of the Group;
(iv) "PERMITTED LISTING" means a Listing which does not result in a
Change of Control.
11.4 ASSET DISPOSALS
(a) Subject to clauses 11.4(b) and 11.8 (Restrictions on upstreaming
moneys), the Parent shall procure that the Net Proceeds of any
disposal of any fixed asset exceeding EUR 80,000 (or its equivalent in
other currencies) by a Group Company (other than a disposal permitted
by clauses 19.3(a)(i), (ii), (iv), (v), (vi), (viii) or (ix)
(Disposals) and other than to the extent that such Net Proceeds, when
aggregated with the Net Proceeds of all other such sales made since
the Signing Date, do not exceed EUR 20,000,000 (or its equivalent in
other currencies)) are applied in prepayment of the Facilities.
(b) Net Proceeds need not be so applied if within 360 days after receipt
they are reinvested in fixed assets related to the Core Business.
(c) All such Net Proceeds which are not applied for the purposes specified
in clause 11.4(a) will be applied, in prepaying the Facilities on the
last day of the Interest Period for the relevant Advances following
the expiry of the 360 day period referred to in clause 11.4(b).
11.5 INSURANCE CLAIMS
(a) Subject to clauses 11.5(b), 11.5(c) and 11.8 (Restrictions on
upstreaming moneys), if a Group Company receives any proceeds
exceeding EUR 775,000 (or its equivalent in other currencies) as a
result of making a claim under an insurance policy (other than in
relation to third party liability or in relation to consequential loss
policies that are actually applied to cover operating losses), the
Parent shall procure that an amount equal to those proceeds (net of
any applicable Tax) is applied in prepayment of the Facilities;
(b) Any amount received or recovered as a result of making a claim under
an insurance policy need not be so applied if within 360 days after
receipt it is applied in reinstating, replacing, repairing or
otherwise investing in assets related to the Core Business;
(c) All such proceeds which are not applied for the purposes specified in
clause 11.5(b) will be applied in prepaying the Facilities following
the expiry of the 360 day period referred to in clause 11.5(b) or, if
later, the last day of the Interest Period for the relevant Advances
immediately following such date.
11.6 FINAL REFINANCING DATE
If the Final Refinancing Date has not occurred by the 60th day following
the first Drawdown Date:
(a) all of the Lenders' Commitments will immediately be cancelled and
reduced to zero; and
32
(b) each Borrower will immediately prepay all Advances drawn by it, all
Bank Guarantees issued for its account and all sums advanced to it.
11.7 ORDER OF APPLICATION OF PREPAYMENTS
(a) Any amount to be applied in prepayment of the Facilities under clauses
11.1 (Voluntary prepayment), 11.4 (Asset disposals) and 11.5
(Insurance claims) shall be applied:
(i) first to prepay the Term Facility; and
(ii) provided that all amounts under the Term Facility have been
repaid first, in permanent prepayment of Revolving Advances, in
such order as the Parent may select by no less than three
Business Days' prior written notice to the Facility Agent and
thereafter in providing cash cover in respect of any Contingent
Liability under any Bank Guarantee issued under the Revolving
Facility.
(b) If any amount is applied in accordance with clause 11.7(a)(ii), the
Revolving Commitments shall immediately be cancelled by the amount
equal to each amount prepaid or provided as cash cover in relation to
the Revolving Facility. Any such cancellation shall apply to the
Revolving Commitment of each Revolving Lender on a pro rata basis.
(c) Subject to the other provisions of this agreement, the Parent shall,
by notice to the Facility Agent to be received at least three Business
Days before the date of the relevant prepayment, designate which
Drawings are to be prepaid on that date.
11.8 RESTRICTIONS ON UPSTREAMING MONEYS
(a) Any amount to be applied in prepayment of the Facilities under 11.4
(Asset disposals) and 11.5 (Insurance claims) shall (except where the
relevant amount has been received directly by the Parent) be limited
to the aggregate of:
(i) the sum of (1) distributable profits of the Subsidiaries of the
Parent net of taxes for the latest financial year (taking into
account the relevant company's shareholding in its Subsidiaries)
and (2) cash reserves distributable without incurring
equalisation tax (en franchise de precompte), exceptional tax
(prelevement exceptionnel) on distributions or similar tax (if
any) of the relevant Subsidiaries (taking into account the
percentage of the Parent's shareholding in the relevant
Subsidiaries); and
(ii) cash held by the Parent.
(b) Subject to clause 11.8(a), the Parent shall (within boundaries of
French law and to the extent that it does not thereby incur any
material adverse tax consequences) use its best endeavours to
facilitate cash circulation (including early repayments of
intercompany loans between Group Companies so as to permit partial
prepayments of the Facilities under clauses 11.4 (Asset disposals) and
11.5 (Insurance claims) to take place. The difference between the
amount to be applied in prepayment of the Facilities under clause 11.4
(Asset disposals) and/or 11.5 (Insurance claims) and the amount which
can legally be prepaid under the limitations described at clause
11.8(a)(i) and (ii) shall either be deposited by the relevant Group
Company on a dedicated interest bearing bank account until the payment
can be made upstream to the Parent (subject to a maximum period of six
months) or, if the relevant Group Company is a Borrower under the
Revolving Facility and if it so elects, shall be applied towards
prepayment (but not cancellation) of the amounts due by it under the
Revolving Facility.
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(c) If:
(i) any amount is required to be applied in prepayment or repayment
of the Facilities under this clause 11 but, in order to be so
applied, moneys need to be upstreamed or otherwise transferred
from one Group Company to another Group Company to effect that
prepayment or repayment; and
(ii) those moneys cannot be so upstreamed or transferred without:
(A) breaching a financial assistance prohibition or other legal
restriction applicable to a Group Company (or any of its
directors); or
(B) any Group Company incurring a material cost (whether as a
result of paying additional Taxes (including, in the case of
a Group Company incorporated in France, any special dividend
withholding tax (precompte) or otherwise),
there will be no obligation to make that payment or repayment until
that impediment no longer applies.
11.9 CANCELLATION OF TERM FACILITY
The Parent may cancel the undrawn amount of the Term Commitments relating
to the Term Facility in whole or in part (but, if in part, in a minimum
amount of EUR 5,000,000 and an integral multiple of EUR 1,000,000) at any
time during the Availability Period for the Term Facility by giving no less
than three Business Days' irrevocable notice to the Facility Agent
specifying the date and amount of the proposed cancellation and, on any
cancellation of any Term Commitments, the amount of the corresponding Term
Facility will reduce accordingly. Any such cancellation shall reduce each
Lender's Commitment in respect of the Term Facility on a pro rata basis.
11.10 CANCELLATION OF REVOLVING FACILITY
(a) Provided that the Revolving Facility shall not be cancelled by
application of proceeds which would otherwise give rise to mandatory
prepayment of the Term Advance under any of clauses 11.3 (Sale, Change
of Control and Listing), 11.4 (Asset disposals) or 11.5 (Insurance
claims), the Parent may cancel the Revolving Commitments in whole or
in part (but, if in part, in a minimum of EUR 5,000,000 and an
integral multiple of EUR 1,000,000) at any time during the
Availability Period for the Revolving Facility by giving no less than
three Business Days' irrevocable notice to the Facility Agent
specifying the date and amount of the proposed cancellation and, on
any cancellation of the Revolving Commitments, the amount of the
Revolving Facility will be reduced accordingly. Any such cancellation
shall reduce each Lender's Revolving Commitment on a pro rata basis.
(b) No cancellation of the Revolving Facility may be made if it would
result in the aggregate of the Revolving Advances and the Contingent
Liability of all the Lenders under Bank Guarantees issued under the
Revolving Facility at the time of the proposed cancellation exceeding
the total Revolving Commitments at such time.
11.11 MISCELLANEOUS
(a) Any repayment or prepayment under this agreement must be accompanied
by accrued interest on the amount repaid or prepaid and any other
amount then due under this agreement.
(b) No amount prepaid or cancelled under this clause 11 may be redrawn or
reinstated.
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(c) Any notice of prepayment or cancellation given under this agreement
shall be irrevocable and, in the case of notice of prepayment, the
Parent or the Borrower named in that notice shall be obliged to prepay
(or, in the case of the Parent, to procure prepayment) in accordance
with that notice.
(d) No prepayment of a Drawing or cancellation of any Commitment may be
made except in accordance with this agreement.
12. PAYMENTS
12.1 BY LENDERS
(a) On each date on which an Advance is to be made, each Lender shall make
its participation in that Advance available to the Facility Agent on
that date by payment in the currency in which the Advance is
denominated and in immediately available cleared funds to the account
specified by the Facility Agent for that purpose.
(b) The Facility Agent shall make the amounts paid to it available to the
relevant Borrower on the date of receipt by payment in the same
currency as received by the Facility Agent to the account specified by
that Borrower in the notice requesting that Advance. If any Lender
makes its share of any Advance available to the Facility Agent later
than required by clause 12.1(a), the Facility Agent shall make that
share available to the relevant Borrower as soon as practicable after
receipt.
12.2 BY OBLIGORS
(a) On each date on which any amount is due from any Obligor under the
Senior Finance Documents, that Obligor shall pay that amount on that
date to the Facility Agent in immediately available cleared funds to
the account specified by the Facility Agent for that purpose.
(b) Each payment under this agreement from an Obligor is to be made in
Euro, except that:
(i) each repayment or prepayment of an Advance shall be in the
currency in which it was drawn;
(ii) each payment of interest shall be in same currency as the amount
in relation to which that interest is payable;
(iii) each payment in respect of losses shall be made in the currency
in which the losses were incurred;
(iv) each payment under clause 13.1 (Gross up) or clause 14.1
(Increased costs) shall be made in the currency specified by the
claiming Finance Party; and
(v) any amount expressed to be payable in a currency other than Euro
shall be paid in that other currency.
(c) The Facility Agent shall, on the date of receipt, pay to the Finance
Party to which the relevant amount is due its pro rata share (if any)
of any amounts so paid to the Facility Agent in the same currency as
received by the Facility Agent to the account specified by that party
to the Facility Agent. If any amount is paid to the Facility Agent
later than required by clause 12.2(a), the Facility Agent shall make
that party's share available to it as soon as practicable receipt.
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12.3 NETTING OF PAYMENTS
If on any Drawdown Date:
(a) the Revolving Lenders are required to make a Revolving Advance; and
(b) a payment is due to be made by an Obligor to the Facility Agent for
the account of the Revolving Lenders,
the Facility Agent may, without prejudice to the obligation of the relevant
Obligor to make that payment, apply any amount payable by the Revolving
Lenders to that Obligor on that Drawdown Date in relation to the relevant
Revolving Advance in or towards satisfaction of the amounts payable by that
Obligor to the Revolving Lenders on that Drawdown Date.
12.4 ASSUMED RECEIPT
Where an amount is to be paid under any Senior Finance Document for the
account of another person, the Facility Agent will not be obliged to pay
that amount to that person until it is satisfied that it has actually
received that amount. If the Facility Agent nonetheless pays that amount to
that person and the Facility Agent had not in fact received that amount,
then that person will on request refund that amount to the Facility Agent.
That person will be liable:
(a) to pay to the Facility Agent on demand interest on that amount at the
rate determined by the Facility Agent to be equal to the cost to the
Facility Agent of funding that amount for the period from payment by
the Facility Agent until refund to the Facility Agent of that amount;
and
(b) to indemnify the Facility Agent on demand against any additional loss
it may have incurred by reason of it having paid that amount before
having received it.
12.5 NO SET-OFF OR DEDUCTIONS
All payments made by an Obligor under the Senior Finance Documents must be
paid in full without set-off or counterclaim and not subject to any
condition and free and clear of and without any deduction or withholding
for or on account of any Taxes (except as provided in clause 13 (Taxes)).
12.6 BUSINESS DAYS
Subject to clause 8.3 (Non-Business Days), if any amount would otherwise
become due for payment under any Senior Finance Document on a day which is
not a Business Day, that amount shall become due on the immediately
following Business Day and all amounts payable under any Senior Finance
Document calculated by reference to any period of time shall be
recalculated on the basis of that extension of time.
12.7 APPLICATION OF MONEYS
If any amount paid or recovered in relation to the liabilities of an
Obligor under any Senior Finance Document is less than the amount then due,
the Facility Agent shall apply that amount against amounts outstanding
under the Senior Finance Documents in the following order:
(a) first, to any unpaid fees and reimbursement of unpaid expenses of the
Agents;
(b) second, to any unpaid fees and reimbursement of unpaid expenses of the
Lenders;
(c) third, to unpaid interest;
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(d) fourth, to unpaid principal (including provision of cash cover in
relation to Contingent Liabilities); and
(e) fifth, to other amounts due under the Senior Finance Documents,
in each case (other than (a)), pro rata to the outstanding amounts owing to
the relevant Finance Parties under the Senior Finance Documents taking into
account any applications under this clause 12.7. Any such application by
the Facility Agent will override any appropriation made by an Obligor.
13. TAXES
13.1 GROSS UP
If any deduction or withholding for or on account of Taxes or any other
deduction imposed by its jurisdiction of incorporation from any payment
made or to be made by an Obligor to any Finance Party or by the Facility
Agent to any other Finance Party under any Senior Finance Document is
required by law, then that Obligor will:
(a) ensure that the deduction or withholding does not exceed the minimum
amount legally required;
(b) pay to the relevant Taxation or other authorities within the period
for payment permitted by the applicable law, the amount which is
required to be paid in consequence of the deduction (including the
full amount of any deduction from any additional amount paid under
this clause 13.1);
(c) promptly pay to the relevant Finance Party an additional amount equal
to the amount required to procure that the aggregate net amount
received by that Finance Party will equal the full amount which would
have been received by it if no such deduction or withholding had been
made; and
(d) indemnify each Finance Party against any losses incurred by it by
reason of:
(i) any failure by the relevant Obligor to make any deduction or
withholding; or
(ii) any such additional amount not being paid on the due date for
payment of that amount.
13.2 EXEMPTIONS FROM GROSS-UP
No additional amount will be payable to a Finance Party under clause 13.1
(Gross up) to the extent that the relevant deduction or withholding would
not have arisen if that Finance Party had been a Qualifying Lender at the
time the relevant payment fell due (unless the reason it is not a
Qualifying Lender is the introduction of, or a change in, any law or
regulation, or a change in the interpretation or application of any law or
regulation or in any practice or concession of the relevant tax authority,
in each case occurring after the date of this agreement or after the date
on which such Finance Party became a party to this agreement).
13.3 INDEMNITY
Without prejudice to clause 13.1 (Gross up), if, as a result of a tax
change occurring after the date of this agreement on or after the date on
which such Finance Party became a party to this agreement, any Finance
Party (or any person on its behalf) is required to make any payment in
relation to Tax (other than Tax on its overall net income) on or calculated
by reference to the amount of any payment
37
received or receivable by that Finance Party (or any person on its behalf)
under any Senior Finance Document (including under clause 13.1 (Gross up))
or any liability in relation to any such payment is assessed, levied,
imposed or claimed against any Finance Party (or any person on its behalf),
the Parent shall, on demand by the Facility Agent, forthwith indemnify that
Finance Party (or relevant other person) against that payment or liability
and any losses incurred in connection with that payment or liability.
13.4 FILINGS
If an Obligor is required (or would in the absence of any appropriate
filing be required) to make a deduction or withholding for or on account of
Taxes or any other deduction contemplated by this clause 13, that Obligor
and each relevant Finance Party shall promptly file all forms and documents
which the appropriate Tax authority may reasonably require in order to
enable that Obligor to make relevant payments under the Senior Finance
Documents without having to make that deduction or withholding.
Each Finance Party which is a Qualifying Lender by reason of paragraph (b)
of the definition of "Qualifying Lender" in clause 1.1 (Definitions) shall,
as soon as reasonably practicable after request from the Parent, file with
any relevant Tax authority, or provide to the Parent, any Tax form,
declaration or other document which the Parent has reasonably requested
from that Finance Party for the purpose of enabling payments to be made by
the relevant Obligor to that Finance Party under the Senior Finance
Documents without deduction or withholding.
13.5 TAX CREDITS
If an Obligor pays an additional amount under clause 13.1 (Gross up) and a
Lender, in its sole opinion acting in good faith, receives an off-setting
Tax credit or other similar Tax benefit arising out of that payment, that
Lender shall reimburse to the relevant Obligor the amount which that Lender
determines, in its sole opinion acting in good faith, is attributable to
the relevant deduction, withholding or payment and will leave it in no
better or worse position in relation to its worldwide Tax liabilities than
it would have been in if the payment of that additional amount had not been
required, to the extent that that Lender, in its sole opinion acting in
good faith, can do so without prejudice to the retention of the amount of
that credit or benefit and without any other adverse Tax consequences for
it. Any such reimbursement shall be conclusive evidence of the amount due
to that Obligor and shall be accepted by that Obligor in full and final
settlement of any claim for reimbursement under this clause 13.5.
13.6 TAX CREDIT RECOVERY
If, following any reimbursement by a Lender under clause 13.5 (Tax
credits), that Lender is required to relinquish or surrender any credit or
benefit or suffers an adverse Tax consequence as a result of that
reimbursement and that relinquishment, surrender or that adverse Tax
consequence was not (or was not fully) taken into account in determining
that reimbursement, the relevant Obligor shall, on demand, return to that
Lender the proportion of the reimbursement which will compensate the Lender
for that relinquishment, surrender or adverse Tax consequence.
13.7 TAX AFFAIRS
Nothing in this clause 13 shall oblige any Lender to disclose any
information to any person regarding its Tax affairs or Tax computations or
interfere with the right of any Lender to arrange its Tax affairs in
whatever manner it thinks fit.
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14. CHANGE IN CIRCUMSTANCES
14.1 INCREASED COSTS
(a) If the effect of the introduction of, or a change in, or a change in
the interpretation or application of, any law or regulation (including
any law or regulation relating to Taxation, reserve asset, special
deposit, cash ratio, liquidity or capital adequacy requirements or any
other form of banking or monetary controls) applicable to any Lender
(an "AFFECTED LENDER") occurring after the date of this agreement or
after the date on which it became a Lender or compliance by any Lender
with any such law or regulation is to:
(i) impose an additional cost on the Affected Lender as a result of
it having entered into any Senior Finance Document or making or
maintaining its participation in any Advance or of it performing
its obligations under any Senior Finance Document;
(ii) reduce any amount payable to the Affected Lender under any Senior
Finance Document or reduce the effective return on its capital or
any class of its capital; or
(iii) result in the Affected Lender making any payment or foregoing
any interest or other return on or calculated by reference to any
amount received or receivable by the Affected Lender from any
other party under any Senior Finance Document,
(each such increased cost, reduction, payment, foregone interest or
other return being referred to in this clause 14.1 as an "INCREASED
COST"), then:
(A) the Affected Lender will notify the Parent and the Facility
Agent of that event as soon as reasonably practicable after
becoming aware of it; and
(B) on demand from time to time by the Affected Lender, the
Parent will pay to the Affected Lender the amount which the
Affected Lender reasonably determines is necessary to
compensate the Affected Lender for that increased cost (or
the portion of that increased cost which is, in the opinion
of the Affected Lender, attributable to it entering into the
Senior Finance Documents, making or maintaining its
participation in any Drawing, or maintaining its
Commitment).
(b) The certificate of an Affected Lender specifying the amount of
compensation payable under clause 16.1(a) and the basis for the
calculation of that amount is, in the absence of manifest error,
conclusive.
(c) The Parent will not be obliged to compensate any Affected Lender under
clause 16.1(a) in relation to any increased cost:
(i) compensated for by clause 13 (Taxes);
(ii) attributable to a change in the rate of Tax on the overall net
income of the Affected Lender;
(iii) attributable to the implementation by the applicable authorities
having jurisdiction over the Affected Lender and/or its Lending
Office of the matters set out in the statement of the Basle
Committee on Banking Regulations and the Supervisory Practices
dated July, 1988 and entitled "International Convergence of
Capital Measurement and Capital Standards", or the directives of
the European Council (as amended or supplemented prior to the
date of this agreement) of 17 April, 1989 on the own funds of
credit institutions (89/229/EEC) and of 18 December, 1989 on the
39
solvency ratio for credit institutions (89/647/EEC), except in
the case of an increase in mandatory reserve requirements in
respect of requirements in effect on the date of this agreement
in each case to the extent and according to the timetable
provided for therein;
(iv) occurring as a result of any negligence or wilful default of the
Affected Lender or any of its Holding Companies including but not
limited to a breach by that Affected Lender or any of its Holding
Companies of any fiscal, monetary or capital adequacy limit
imposed on it by any law or regulation; or
(v) to the extent that the increased cost was incurred in respect of
any day more than six months after the first date on which it was
reasonably practicable to notify the Parent thereof.
(d) If any Holding Company of a Lender suffers a cost which would have
been recoverable by that Lender under this clause 14.1 if that cost
had been imposed on that Lender, that Lender shall be entitled to
recover the amount of that cost under this clause 14.1 on behalf of
the relevant Holding Company.
14.2 ILLEGALITY
If it is or becomes contrary to any law or regulation for any Lender to
make any of the Facilities available or to maintain its participation in
any Advance or any of its Commitments, then that Lender may give notice to
that effect to the Facility Agent and the Parent, whereupon:
(a) the relevant Borrowers will forthwith prepay that Lender's
participation in all Advances then outstanding, together with all
interest accrued on those Advances, provide cash cover in an amount
equal to that Lender's Contingent Liability in relation to each Bank
Guarantee and pay all other amounts due to that Lender under the
Senior Finance Documents (including under clause 28.1 (General
indemnity and breakage costs)); and
(b) that Lender's undrawn Commitments (if any) will immediately be
cancelled and that Lender will have no further obligation to make the
Facilities available.
14.3 MITIGATION
If circumstances arise in relation to a Lender which would or may result
in:
(a) any Advance in which it participates becoming an Affected Advance
under clause 9 (Market disruption); or
(b) an obligation to pay an additional amount to it under clause 13.1
(Gross up); or
(c) a demand for compensation by it under clause 14.1 (Increased costs);
or
(d) an obligation to prepay any amount to it under clause 14.2
(Illegality),
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Obligors under the clauses referred to above, that
Lender will notify the Facility Agent and the Parent as soon as reasonably
practicable after becoming aware of those circumstances and, in
consultation with the Facility Agent and the Parent, take such reasonable
steps as may be open to it to mitigate the effects of those circumstances,
including:
(a) changing its Lending Office for the purposes of this agreement; or
40
(b) transferring its rights and obligations under this agreement in
accordance with clause 26 (Changes to parties),
but the Lender concerned will not be obliged to take any action if to do so
might have a material adverse effect on its business, operations or
financial condition or cause it to incur liabilities or obligations
(including Taxation) which (in its reasonable opinion) are material or
would materially reduce its return in relation to its participation in the
Facilities.
14.4 ISSUING LENDER
References in clause 13 (Taxes) and this clause 14 to a "Lender" or
"Lenders" include a Lender in its capacity as an Issuing Lender.
15. FEES, EXPENSES AND STAMP DUTIES
15.1 ARRANGEMENT AND UNDERWRITING FEE
The Parent will pay to the Arranger the arrangement and underwriting fee in
accordance with the terms of the Fees Letter.
15.2 AGENCY FEE
The Parent will pay to the Facility Agent for its own account an agency fee
in accordance with the terms of the Fees Letter.
15.3 COMMITMENT FEE
The Parent will pay to the Facility Agent for the account of the Lenders a
commitment fee in respect of the Term Facility and the Revolving Facility
which will:
(a) in respect of the Term Facility and the Revolving Facility until the
first Drawdown Date, be calculated at the rate of 0.25 per cent. per
annum on the daily undrawn, uncancelled portion of the Total
Commitments from (and including) the Signing Date until (but
excluding) the earlier of the first Drawdown Date and the last day of
the Availability Period for the Term Facility and which will be paid
in one instalment on the first Drawdown Date or, if earlier, on the
last day of the Availability Period for the Term Facility; and
(b) in respect of the Revolving Facility as from the first Drawdown Date,
be calculated at the percentage rate per annum equal to 35 per cent.
of the Margin applicable to the Revolving Facility on the daily
undrawn, or not otherwise made available, and uncancelled portion of
the Revolving Commitments from (and including) the first Drawdown Date
until (but excluding) one month before the Revolving Facility
Repayment Date and shall be payable quarterly in arrear and on the
Revolving Facility Repayment Date.
Accrued commitment fee under this clause 15.3 is also payable to the
Facility Agent for the account of each Lender on the cancelled amount of
its Revolving Commitment on the date on which any cancellation of that
Revolving Commitment takes effect.
15.4 BANK GUARANTEE COMMISSION
Each Borrower for whose account a Bank Guarantee is issued shall pay to the
Facility Agent for the account of each Lender a commission at a rate equal
to the Margin applicable to the Revolving Facility on that Lender's
Contingent Liability from day to day in relation to that Bank Guarantee.
That commission shall be payable quarterly in arrear from the date of this
agreement for so long as that
41
Lender has any such Contingent Liability and on the date on which it ceases
to have any such Contingent Liability.
15.5 ISSUING LENDER FEE
Each Borrower for whose account a Bank Guarantee is issued shall pay to the
Issuing Lender which issued that Bank Guarantee a fee equal to 0.125 per
cent. per annum on the Contingent Liability of that Issuing Lender from day
to day in relation to that Bank Guarantee. That fee shall be payable
quarterly in arrear from the date of this agreement for so long as that
Issuing Lender has any such Contingent Liability and on the date on which
it ceases to have any such Contingent Liability.
15.6 VAT
All fees payable under the Senior Finance Documents are exclusive of any
value added tax or other similar tax chargeable on or in connection with
those fees. If any such value added tax or other similar tax is or becomes
chargeable, that tax will be added to the relevant fee at the appropriate
rate and will be paid by the relevant Obligor at the same time as the
relevant fee itself is paid.
15.7 INITIAL EXPENSES
The Parent will on demand pay to the Agents and the Arranger the amount of
all costs and expenses (including legal fees and other out-of-pocket
expenses and any value added tax or other similar tax thereon) reasonably
incurred by either Agent or the Arranger in connection with:
(a) the negotiation, preparation, execution and completion of the Senior
Finance Documents, and all documents, matters and things referred to
in, or incidental to, any Senior Finance Document (subject to a cap as
agreed in the Fees Letter);
(b) any amendment, consent or suspension of rights (or any proposal for
any of the same) relating to any Senior Finance Document (and
documents, matters or things referred to in any Senior Finance
Document);
(c) the investigation of any Default; and
(d) primary syndication (including the costs of preparing the Syndication
Memorandum and all matters incidental to primary syndication).
15.8 ENFORCEMENT EXPENSES
The Parent will on demand pay to each Finance Party the amount of all costs
and expenses (including legal fees and other out of pocket expenses and any
value added tax or other similar tax thereon) reasonably incurred by that
Finance Party in connection with the preservation, enforcement or attempted
preservation or enforcement of any of that Finance Party's rights under any
Senior Finance Document (and any documents referred to in any Senior
Finance Document) upon production of duly documented evidence.
15.9 STAMP DUTIES, ETC.
The Parent will on demand indemnify each Finance Party from and against any
liability for any stamp, documentary, filing and other duties and Taxes (if
any) which are or may become payable in connection with any Senior Finance
Document.
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15.10 CALCULATION
All fees under this agreement which accrue and are payable in arrear will
accrue on a daily basis and will be calculated by reference to a 360 day
year and the actual number of days elapsed.
16. GUARANTEE AND INDEMNITY
16.1 GUARANTEE
Each Guarantor irrevocably and unconditionally and jointly and severally:
(a) guarantees to each Finance Party (as a caution solidaire) punctual
performance by each Obligor which is a Subsidiary of that Guarantor of
all that Obligor's payment obligations under the Senior Finance
Documents; and
(b) undertakes with each Finance Party that whenever an Obligor which is a
Subsidiary of that Guarantor does not pay any amount when due under or
in connection with any Senior Finance Document, that Guarantor shall
immediately on demand pay that amount.
16.2 FURTHER GUARANTEE PROVISIONS
The obligations of each Guarantor under clause 16.1 (Guarantee) (the
"GUARANTEE OBLIGATIONS"):
(a) will remain in full force and effect until all amounts which may be or
become payable by any Obligor under or in connection with any Senior
Finance Document have been irrevocably paid in full;
(b) are in addition to and are not in any way prejudiced by any other
security now or subsequently held by any Finance Party; and
(c) are subject to any limitation which is contained in the Accession
Document by which that Guarantor becomes a Guarantor.
16.3 WAIVERS:
Each Guarantor irrevocably and expressly:
(a) undertakes not to exercise any rights which it may have under article
2021 (benefice de discussion) or article 2026 (benefice de division)
of the Code Civil;
(b) waives any right it may have of first requiring any Finance Party (or
any trustee or agent on its behalf) to proceed against or enforce any
other rights or security or claim payment from any person before
claiming from that Guarantor under this clause 16;
(c) undertakes not to exercise any rights which it may have against any
other Obligor under article 2032 of the Code Civil; and
(d) undertakes not to exercise any rights which it may have under article
2039 of the Code Civil to take any action against any other Obligor in
the event of any extension of any Availability Period, any Maturity
Date, any Repayment Date or any other date for payment of any amount
due, owing or payable to any Finance Party under any Senior Finance
Document, in each case without the consent of that Guarantor.
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16.4 NO SUBROGATION
(a) Until all amounts which may be or become payable by any Obligor under
or in connection with any Senior Finance Document have been
irrevocably paid in full, each Guarantor irrevocably and expressly
undertakes not to exercise any rights which it may have (including its
rights under article 2028 of the Code Civil):
(i) to be subrogated to or otherwise share in any security or monies
held, received or receivable by any Finance Party or to claim any
right of contribution in relation to any payment made by any
Guarantor under this agreement;
(ii) to enforce any of its rights of subrogation and indemnity against
any Obligor or any co-surety;
(iii) following a claim being made on any Guarantor under clause 16.1
(Guarantee), to demand or accept repayment of any monies due from
any other Obligor to any Guarantor or claim any set-off or
counterclaim against any other Obligor; or
(iv) to claim or prove in a liquidation or other insolvency proceeding
of any Obligor or any co-surety in competition with any Finance
Party.
(b) Each Guarantor agrees that, to the extent that the agreement to
withhold the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth in this clause 16.4 is
found by any court of competent jurisdiction to be void or voidable
for any reason, any rights of subrogation, reimbursement or
indemnification which that Guarantor may have against any Obligor or
against any collateral or security, and any rights of contribution
which that Guarantor may have against any such other Guarantor shall
be junior and subordinate to:
(i) any rights any Finance Party may have against any Obligor
(including without limitation that Guarantor);
(ii) all right, title and interest which any Finance Party may have in
any such collateral or security; and
(iii) any right which any Finance Party may have against those
Guarantors any Finance Party may use, sell or dispose of any item
of collateral or security as it sees fit without regard to any
subrogation rights which any Guarantor may have and, upon such
disposal or sale, any rights of subrogation which that Guarantor
may have had shall terminate.
If any amount is paid to any Guarantor on account of any such subrogation,
reimbursement or indemnification rights at any time when all Guarantee
Obligations have not been paid in full, those amounts shall be held for the
benefit of the Finance Parties and shall forthwith be paid over to the
Finance Parties to be credited and applied against the Guarantee
Obligations, whether matured or unmatured, in accordance with the terms of
this agreement.
16.5 TURNOVER
Each Guarantor shall hold for the benefit of and, promptly pay or transfer
to, the Facility Agent any payment, distribution or benefit of security
received by it arising as a result of a breach of this clause 16.
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17. CHANGES TO OBLIGORS AND SECURITY
17.1 ADDITIONAL BORROWERS
A Group Company (other than Xxxxx) may become a Borrower after the Signing
Date in respect of the Revolving Facility if:
(a) the Parent gives notice to the Facility Agent identifying the relevant
Group Company (the "NEW BORROWER") attaching certified copies of such
New Borrower's most recent audited accounts;
(b) the Majority Lenders confirm to the Facility Agent that they consent
to the New Borrower becoming a Borrower;
(c) the New Borrower, the Parent (for itself and as agent for the existing
Obligors) and the Facility Agent execute an Accession Document
designating the New Borrower as a Borrower;
(d) where the immediate Holding Company of the New Borrower is not already
a Guarantor, the Parent and that Holding Company execute an Accession
Document designating that Holding Company as a Guarantor;
(e) the Parent or the New Borrower delivers to the Facility Agent:
(i) the original executed Accession Documents referred to in
paragraphs (c) and (d) above;
(ii) the following documents executed by the New Borrower in favour of
the Finance Parties: a general assignment of all Receivables by
way of security (cession de creances professionnelles pursuant to
the Xxx Xxxxxx);
(iii) a pledge of financial instruments accounts executed by the
immediate Holding Company of the New Borrower over the shares in
the New Borrower;
(iv) the documents listed in paragraph 1 (Formalities certificates) of
schedule 3;
(v) a legal opinion confirming capacity and authorisation; and
(vi) a letter substantially in the form set out in schedule 8 (amended
as necessary to reflect Drawings of the Revolving Facility) duly
counter-signed by the New Borrower,
each satisfactory to the Facility Agent (acting reasonably).
17.2 EFFECTIVE TIME
When the conditions set out in clause 17.1 (Additional Borrowers) are
satisfied, the Facility Agent will notify the Parent and the Finance
Parties and the New Borrower will become a Borrower with effect from that
notification.
17.3 RELEASE OF GUARANTORS
If no Default is continuing (or if a Default is continuing the relevant
disposal is being effected at the request of the Majority Lenders in
circumstances where any of the security created by the Security Documents
has become enforceable) and all the shares in a Guarantor which is not a
Borrower are disposed of to a person outside (and which will remain
outside) the Group in accordance with this agreement, the Facility Agent
and the Security Agent shall, on request of the Parent as soon as
45
reasonably practicable after completion of that disposal, execute any
documents which are necessary to release that Guarantor from all
liabilities under the Senior Finance Documents.
17.4 RELEASE OF SECURITY
If no Default is continuing (or if a Default is continuing the relevant
disposal is being effected at the request of the Majority Lenders in
circumstances where any of the security created by the Security Documents
has become enforceable) and a Group Company disposes of any asset
(including shares in any other Group Company which is not a Borrower) to a
person outside (and which will remain outside) the Group in accordance with
this agreement, the Security Agent shall, on request of the Parent as soon
as reasonably practicable after completion of that disposal, execute any
documents necessary to release that asset from the security created in
favour of the Security Agent by a Security Document.
18. REPRESENTATIONS AND WARRANTIES
18.1 RELIANCE
Each Obligor represents (in respect of itself and its Subsidiaries) and
warrants as set out in the following provisions of this clause 18 and
acknowledges that each Finance Party has entered into the Senior Finance
Documents and has agreed to provide the Facilities in full reliance on
those representations and warranties.
18.2 INCORPORATION
Each Group Company is duly incorporated (except for those Group Companies
which are societes en participation ("SEPS")) and validly existing with
limited liability (except for those Group Companies which are Groupements
d'Interets Economiques ("XXXx")) under the laws of the place of its
incorporation and, subject to specific rules applicable to SEPs and XXXx,
has the power to own its assets and carry on its business.
18.3 POWER AND CAPACITY
It has the power and capacity to enter into and comply with its obligations
under each Finance Document to which it is party.
18.4 AUTHORISATION
It has taken (or, where applicable, will take within the required time
period) all necessary action:
(a) to authorise the entry into and the compliance with its obligations
under each Finance Document to which it is party;
(b) to ensure that its obligations under each Finance Document are valid,
legally binding and enforceable in accordance with their terms (save
for obligations subject to qualifications as to matters of law
contained in the legal opinions referred to in paragraph 9 of schedule
3);
(c) to make each Finance Document to which it is party admissible in
evidence in the courts of France other than certified translations of
the Finance Documents into French; and
(d) to create the security constituted by each Security Document to which
it is party and to ensure that that security has the ranking specified
in that Security Document.
46
18.5 NO CONTRAVENTION
The entry into by any Group Company, the exercise of its rights under and
the compliance with its obligations under and each Finance Document to
which it is party do not:
(a) contravene any law, regulation, judgment or order to which any Group
Company is subject;
(b) conflict with its constitutional documents;
(c) breach any agreement or the terms of any consent binding upon any
Group Company or any assets of any Group Company to an extent which
could reasonably be expected to have a Material Adverse Effect; or
(d) oblige any Group Company to create any security or result in the
creation of any security over any assets of any Group Company, other
than under the Security Documents.
18.6 OBLIGATIONS BINDING
The obligations expressed to be assumed by it under each Finance Document
to which it is a party constitute or when executed will constitute its
valid and legally binding obligations and are enforceable in accordance
with their terms and each of the Security Documents to which it is a party
constitute valid security ranking in accordance with its terms (subject, in
each case, to any applicable insolvency, bankruptcy or similar laws
affecting creditors' rights generally and save for qualifications as to
matters of law contained in the legal opinions referred to in paragraph 9
of schedule 3).
18.7 CONSENTS
All consents and filings required for the conduct of its business as
presently conducted have been obtained (or, where applicable, will be
obtained within the required time period) and are in full force and effect.
18.8 NO DEFAULTS
(a) No Event of Default and on the date of this agreement and on each
Drawdown Date, 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 consequences of
which could reasonably be expected to have a Material Adverse Effect.
18.9 LITIGATION
To the best of its knowledge and belief, having made due and careful
enquiry, no dispute, litigation, arbitration or administrative proceeding
is current or pending against any Group Company which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
18.10 ENVIRONMENT
(a) Each Group Company is and has at all times taken such steps as are
necessary to comply in all material respects with all Environmental
Laws and all Environmental Approvals necessary in connection with the
ownership and operation of its business have been obtained and are in
full force and effect.
47
(b) To the best of its knowledge and belief having made due and careful
enquiry, there are no circumstances which could reasonably be expected
to prevent any Group Company from complying in all material respects
with any Environmental Law or Environmental Approval.
(c) No material investment of which the relevant Group Company is aware
and which is necessary to obtain, renew, extend, modify, revoke,
suspend or surrender any Environmental Approval or to ensure
compliance with any Environmental Law has not been budgeted for.
(d) To the best of its knowledge and belief having made due and careful
enquiry, no Group Company is aware of any actual changes or other
possible changes (which are referred to in national, international or
European bodies' or other regulatory bodies' consultation papers or in
other formal methods of announcing possible changes) in Environmental
Law which could reasonably be expected to have a Material Adverse
Effect.
18.11 OWNERSHIP OF ASSETS
Each Group Company has good title to or valid leases or licenses of, or is
otherwise entitled to use or permit other Group Companies to use, all
assets necessary to conduct its business.
18.12 ACCOUNTS
(a) The Original Audited Accounts were prepared in accordance with French
gaap consistently applied and fairly represent the consolidated
financial position (as at the date to which they were prepared) of and
the results of the operations of, the Group for the period to which
they relate and the state of the affairs of the Group (as the case may
be) at the end of the relevant period and, in particular, disclose or
reserve against all liabilities (actual or contingent).
(b) The Original Management Accounts show with reasonable accuracy the
consolidated financial position of the Group as at the date to which
they were prepared and the results of the operations of the Group for
the period to which they relate and the state of the affairs of the
Group at the end of such period and, in particular, disclose or
reserve against all liabilities (actual or contingent).
(c) The latest Annual Accounts, the latest Annual Management Accounts and
the latest Half-Year Accounts delivered from time to time under clause
19.10(c) (Financial statements) were prepared in accordance with
French gaap consistently applied and, in the case of:
(i) the latest Annual Accounts fairly represent the consolidated
financial position of the Group as at the date to which they were
prepared and the results of the operations of the Group for the
period to which they related and the state of the affairs of the
Group at the end of that period and, in particular, disclose or
reserve against all liabilities (actual or contingent); and
(ii) the latest Annual Management Accounts and Half-Year Accounts show
with reasonable accuracy the consolidated financial position of
the Group as at the date to which they were prepared and the
results of the operations of the Group for the period to which
they related and, in particular, disclose or reserve against all
liabilities (actual or contingent) to the extent required by the
Approved Accounting Principles.
18.13 APPROVED PROJECTIONS
(a) All statements of fact (taken as a whole) in principle recorded in the
Approved Projections are true and accurate in all material respects.
48
(b) The opinions and views expressed in the Approved Projections represent
the honestly held opinions and views of the Senior Management Team and
were arrived at after careful consideration and are based on
reasonable grounds.
(c) The projections and forecasts contained in the Approved Projections
are based upon assumptions (including assumptions as to the future
performance of the Group, inflation, price increases, interest rates
and efficiency gains) which have been carefully considered by the
directors of the Parent and which are considered by them to be fair
and reasonable in each case as at the date which the relevant fact,
opinion, view, projection or forecast was provided or as at the date
at which it is stated.
(d) The Approved Projections are not misleading in any material respect
and do not omit to disclose any matter where failure to disclose such
matter would result in the Approved Projections (or any information or
business plan contained therein) to be misleading in any material
respect for any person considering whether to provide finance to the
Obligors.
(e) Nothing has occurred or come to the attention of the Parent since the
date as at which the Approved Projections were prepared which renders
any material facts contained in the Approved Projections materially
inaccurate or misleading or which makes any of the opinions,
projections or forecasts contained in the Approved Projections unfair
or unreasonable or renders any of the assumptions on which the
projections are based unfair or unreasonable.
18.14 MATERIAL ADVERSE EFFECT
As at the Signing Date and the first Drawdown Date, there has been no event
which has had a Material Adverse Effect since the date to which the
Original Management Accounts were prepared.
18.15 MATERIAL DISCLOSURES
It has fully disclosed in writing to the Facility Agent all facts of which
it is aware having made due and careful enquiry relating to the Group which
it knows could reasonably be expected to materially influence the decision
of the Lenders to make the Facilities available to the Obligors.
18.16 HOLDING COMPANY
The Parent is a holding company and it has not carried on any business or
incurred any liabilities other than by entering into or under the Finance
Documents (including auditors fees and expenses) and certain trading
activities in the Core Business.
18.17 SYNDICATION MEMORANDUM
The Syndication Memorandum is not misleading in any material respect and
has been read and approved by the Senior Management Team.
18.18 REPETITION
The representations and warranties in this clause 18 are made on the date
of this agreement and shall be deemed repeated on, the date of each
Drawdown Request and on each Drawdown Date (other than in the case of a
Rollover Advance), in each case by reference to the facts and circumstances
existing on that date, except that:
(a) the representations and warranties set out in clauses 18.9
(Litigation), 18.12 (Accounts), paragraphs (a) and (b), 18.13
(Approved Projections), 18.14 (Material Adverse Effect), 18.15
49
(Material disclosures) and 18.16 (Holding Company) shall not be
repeated after the first Drawdown Date;
(b) the representations and warranties set out in clauses 18.11 (Ownership
of assets), 18.13 (Approved Projections) and 18.16 (Holding Company)
shall only be made by the Parent; and
(c) the representation and warranty set out in clause 18.17 (Syndication
Memorandum) shall only be made on the date of the Syndication
Memorandum.
19. UNDERTAKINGS
19.1 DURATION OF UNDERTAKINGS
Each Obligor undertakes to each Finance Party in the terms of this clause
19 from the date of this agreement until all amounts outstanding under the
Senior Finance Documents have been discharged and no Finance Party has any
further Commitment or obligations under the Senior Finance Documents
provided that, after a period of twelve months following the first Drawdown
Date, the undertaking provided under clauses 19.4(a) (Acquisition), 19.4(b)
(Joint Ventures), 19.5(a) (Borrowings), 19.5(b) (Guarantees), 19.5(c)
(Loans) and 19.10(h)(ii) (Investigations) shall cease to apply if the ratio
of Total Net Debt to EBITDA last communicated to the Facility Agent in
accordance with clause 19.10(d) (Information and Accounting Undertakings)
is lower than or equal to 2.00:1 and for so long as that ratio remains
lower than or equal to 2.00:1 (the "RELEASE PERIOD"), provided however that
all transactions carried out during the Release Period which would have not
been permitted under clauses 19.4(a) (Acquisition), 19.4(b) (Joint
Ventures), 19.5(a) (Borrowings), 19.5(b) (Guarantees) and 19.5(c) (Loans)
outside a Release Period shall in the event such Release Period terminates
and the above clauses re-apply, be deemed to be incorporated in these
clauses as permitted transactions.
19.2 AUTHORISATIONS AND STATUS UNDERTAKINGS
(a) CONSENTS
Each Obligor will obtain within the required time period and maintain
in full force and effect all consents and filings required under any
applicable law or regulation:
(i) to enable it to perform its payment and other material
obligations under each Finance Document to which it is a party;
(ii) for the validity, enforceability or admissibility in evidence
(other than certified translations of the Finance Documents into
French) of each such Finance Document; and
(iii) to ensure that its obligations under the Finance Documents are
legal, valid and binding and each of the Security Documents
constitutes valid security ranking in accordance with its terms.
(b) MAINTENANCE OF STATUS AND AUTHORISATION
Each Obligor will, and will procure that each of its Subsidiaries
will:
(i) do all things necessary to maintain its corporate existence;
(ii) obtain and maintain in full force and effect all consents and
filings required for the conduct of its business; and
(iii) comply with all laws and regulations applicable to it,
50
where failure to do so could reasonably be expected to materially
impair its ability to perform its obligations under the Senior Finance
Documents.
(c) AMALGAMATIONS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, amalgamate, merge or consolidate with or into any
other person or be the subject of any reconstruction, except for any
amalgamation, merger, consolidation or reconstruction:
(i) of two or more Group Companies (provided that such amalgamation,
merger, consolidation or reconstruction does not adversely affect
the economic and legal effect of the guarantee and security
position of the Finance Parties under the relevant Senior Finance
Documents prior thereto and that, for the avoidance of doubt, the
following mergers are not permitted: (x) a merger between the
Parent and Antargaz and (y) a merger between Antargaz and another
Group Company where Antargaz would not be the surviving entity);
or
(ii) otherwise with the prior written consent of the Majority Lenders.
(d) CHANGE OF BUSINESS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, make a material change to the nature of its core
business.
(e) SUBSIDIARY CONSTITUTIONAL DOCUMENTS
No Obligor (other than the Parent) will, and each Obligor will procure
that none of its Subsidiaries will, agree to any amendment of its
constitutional documents which could reasonably be expected to be
materially adverse to the interests of any Finance Party under any
Senior Finance Document (excluding, for the avoidance of doubt, any
amendment in connection with any transaction permitted under clause
19.9 (Share capital, dividend and other junior financing arrangement
undertakings)).
(f) XXXXX STATUS
(Except in the case of winding up or other permitted amalgamation of
Xxxxx following the Final Refinancing Date) Xxxxx will remain a
direct, wholly-owned Subsidiary of the Parent (except as to one share,
which will be owned by Antargaz) and (until the Final Refinancing
Date) shall not carry on any business or hold any assets other than
the holding of the Intra-Group Bonds and the carrying out of
obligations under the High Yield Documents and Intra-Group Bond
Documents to which it is a party (subject in each case to the
provisions of the Senior Finance Documents).
(g) PARI PASSU RANKING
Each Obligor shall ensure that the claims of the Finance Parties under
the Senior Finance Documents will at all times rank at least pari
passu in right and priority of payment with the claims of all its
other present and future unsecured and unsubordinated creditors except
those whose claims are preferred solely by operation of law.
51
19.3 DISPOSALS AND SECURITY UNDERTAKINGS
(a) DISPOSALS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, (whether by a single transaction or a series of
related or unrelated transactions and whether at the same time or over
a period of time) sell, transfer, lease out or otherwise dispose (each
a "DISPOSAL") of any of its assets or agree to do so, other than:
(i) any disposal of assets on arm's length terms in the ordinary
course of business;
(ii) any inventory disposal by any Group Company in the ordinary
course of trading;
(iii) any disposal of obsolete or redundant plant and equipment, or of
property not required for the operation of its business;
(iv) any disposal of assets to an Obligor which is party to a legally
valid, binding and enforceable Security Document which creates a
valid and effective Security Interest over the asset securing all
or substantially all amounts outstanding under the Senior Finance
Documents;
(v) any disposal of Cash Equivalents on arm's length terms;
(vi) any disposal of assets by a Group Company (other than an Obligor)
to another Group Company (other than Xxxxx);
(vii) disposals (other than to Xxxxx) of assets on arm's length terms
not otherwise permitted under this clause 19.3;
(viii) the exchange of assets (the "TRANSFERRED ASSETS") for other
assets of a comparable or superior nature and value (the
"RECEIVED ASSETS"), provided that, if the Transferred Assets were
subject to a Security Interest in favour of the Finance Parties,
then a Security Interest in favour of the Finance Parties (and
acceptable in form, nature and substance to the Security Agent)
shall be granted by the relevant Group Company over the Received
Assets; and
(ix) any other disposal made with the prior consent of the Majority
Lenders,
provided always that no disposal may be made of any shares in:
(A) any Distribution Company which would result in the Parent
owning (directly or indirectly) less than 95 per cent. of
the equity share capital in that Distribution Company; or
(B) any Material Company (other than a Distribution Company).
(b) DISPOSALS FOR FULL CONSIDERATION
Each Obligor will, and each Obligor will, procure that its
Subsidiaries will, ensure that any disposal permitted by clause
19.3(a) is:
(i) for at least the higher of book value and market value payable in
cash on or before completion of that disposal; and
52
(ii) as part of an arm's length transaction on terms that the
purchaser of the relevant asset does not obtain title to or
possession of that asset before completion of that disposal.
(c) NEGATIVE PLEDGE
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, create or agree to create or permit to subsist any
Security Interest over any part of its assets, other than:
(i) any Security Interest existing at the date of this agreement,
provided that the maximum amount secured by any such Security
Interest shall not be increased after the date of this agreement;
(ii) any Security Interest granted by the Senior Finance Documents;
(iii) liens securing obligations no more than 30 days overdue, arising
by operation of law and in the ordinary course of business;
(iv) Security Interests arising out of title retention provisions in a
supplier's standard conditions of supply of goods where the goods
in question are supplied on credit and are acquired by relevant
Group Company in the ordinary course of trading;
(v) rights of set-off existing in the ordinary course of trading
activities between any Group Company and its respective suppliers
or customers;
(vi) rights of set-off arising by operation of law or by contract by
virtue of the provision to any Group Company of clearing bank
facilities or overdraft facilities permitted under this
agreement;
(vii) Security Interests up to a maximum aggregate amount of EUR
3.000.000 (or its equivalent in other currencies) for taxes,
assessments or charges (A) not yet due or (B) that are being
contested in good faith;
(viii) liens in favour of French tax authorities securing the
liabilities of any Group Company under tax reassessments in
respect of French professional tax (taxe professionnelle), to the
extent that such liabilities (x) are fully guaranteed by Total
under the provisions of the Warranty Agreement or (y) do not
exceed a maximum aggregate amount of EUR 5,000,000;
(ix) Security Interests created in connection with pre-judgement court
proceedings up to a maximum aggregate amount not exceeding EUR
3,000,000 (or its equivalent in other currencies);
(x) any Security Interests not otherwise permitted under this clause
19.3(c) created by any Subsidiary of Antargaz and securing
Financial Indebtedness (other than any such Financial
Indebtedness arising under or in connection with the High Yield
Documents or the Intra-Group Bond Documents) in an aggregate
principal amount not exceeding EUR 3,000,000 (or its equivalent
in other currencies) (provided that there shall be no security on
the shares of any Material Company or Geovexin or Rhone Gaz or
(but without prejudice to paragraph (viii) above) on the business
(fonds de commerce) of any Material Company or Geovexin or Rhone
Gaz);
(xi) any Security Interest created by any Partly Owned Storage and
Logistics Company in respect of which, pursuant to the
shareholder agreement or constitutional documents relating to
that Partly Owned Storage and Logistics Company, the Group
Company
53
which holds a direct equity interest in that Partly Owned Storage
and Logistics Company is not entitled to prohibit the creation of
that Security Interest; and
(xii) any other Security Interest created with the prior written
consent of the Majority Lenders.
(d) DE-REGISTRATION OF EXISTING PLEDGES OF BUSINESSES
The Parent and Antargaz shall procure that the existing pledges of
businesses (nantissements de fonds de commerce) relating to the
businesses of the Parent and Antargaz, respectively, and securing the
Existing Facilities shall have been de-registered (radies) before the
end of a 4 month period following the first Drawdown Date and shall
provide evidence of such de-registration to the Facility Agent within
the same period.
19.4 ACQUISITION AND INVESTMENT UNDERTAKINGS
(a) ACQUISITIONS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will acquire any assets or shares other than:
(i) in the ordinary course of its trading activity;
(ii) any Permitted Acquisition, provided that:
(A) the Parent demonstrates to the satisfaction of the Facility
Agent that the Permitted Acquisition is funded entirely out
of:
(1) an Equity Contribution; and/or
(2) Cash and Cash Equivalents owned by Group Companies;
(B) in respect of any individual Permitted Acquisition where the
aggregate of the purchase price paid, or to be paid, for the
shares or assets comprised in that Permitted Acquisition
plus the total net debt assumed or repaid, or to be assumed
or repaid, in connection with that Permitted Acquisition
(together, the "ENTERPRISE VALUE") does not exceed EUR
15,000,000 (or its equivalent in other currencies), the
Parent has provided the Facility Agent with revised
financial projections and forecasts for the business of the
Group incorporating that Permitted Acquisition no later that
10 Business Days prior to the date of that Permitted
Acquisition;
(C) in respect of any individual Permitted Acquisition where the
enterprise value of that Permitted Acquisition exceeds EUR
15,000,000 (or its equivalent in other currencies), the
Parent has provided the Facility Agent with revised
financial projections and forecasts for the business of the
Group incorporating that Permitted Acquisition and a legal
and accounting due diligence report, in each case in form
and substance satisfactory to the Majority Lenders, no later
than 30 days prior to the date of that Permitted
Acquisition; and
(D) the aggregate enterprise values of all Permitted
Acquisitions after the Signing Date does not exceed EUR
90,000,000 (or its equivalent in other currencies); and
54
(iii) (subject to clause 19.3(a) (Disposals)), shares owned by it or
any other Group Company in any other Group Company as at the
Signing Date.
(b) JOINT VENTURES
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, enter into any Joint Venture or invest any amount
(whether by way of loan, subscription for share capital, incurrence of
any liabilities or otherwise) in any Joint Venture other than:
(i) an investment by a Group Company (other than the Parent or Xxxxx)
in Groupement Xxxxxx or any Joint Venture to which it is a party
at the date of this agreement (an "EXISTING JOINT VENTURE")
provided that such investment is:
(A) expressly permitted under clause 19.5 (Financing arrangement
undertakings); or
(B) made by way of equity contribution and/or shareholders'
loans (provided that the aggregate amount of all such equity
contributions and outstanding loans pursuant to clause
19.5(c)(ii)(A) (Loans) shall not exceed EUR 23,000,000 (or
its equivalent in other currencies) at any time);
(ii) an investment by a Group Company (other than the Parent or Xxxxx)
in any Joint Venture (other than any existing Joint Venture)
where:
(A) the liability of that Group Company in respect of that Joint
Venture is limited to the aggregate amount invested by that
Group Company in that Joint Venture;
(B) any investment in that Joint Venture is made by way of
equity subscription or shareholder loan; and
(C) the aggregate Investment Amount invested in all Joint
Ventures under this sub-paragraph (ii) in any Financial Year
does not exceed EUR 20,000,000 (or its equivalent in other
currencies).
19.5 FINANCING ARRANGEMENT UNDERTAKINGS
(a) BORROWINGS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, incur or permit to be outstanding any Financial
Indebtedness other than:
(i) any Financial Indebtedness of the Group existing at the Signing
Date (as listed in the certificate referred to in paragraph 3 of
schedule 3) and not to be refinanced as of the first Drawdown
Date to the extent not exceeding EUR 4,500,000;
(ii) amounts due under any Senior Finance Document, the Existing
Facilities Agreement (until the first Drawdown Date), the High
Yield Notes (until the Final Refinancing Date), the Intra-Group
Bonds (until the Final Refinancing Date) or in respect of an
Equity Contribution;
(iii) Financial Indebtedness permitted by clauses 19.5(b)
(Guarantees), 19.5(c) (Loans), 19.5(d) (Hedging) or 19.5(e)
(Banking business);
55
(iv) unsecured overdraft or working capital facilities of any Group
Company (other than Xxxxx) in relation to which a Bank Guarantee
in an amount equal to the maximum principal amount of those
facilities has been issued;
(v) loans arising by operation of law (including labour and tax
regulations);
(vi) any Financial Indebtedness of any Group Company (other than
Xxxxx) in an aggregate principal amount which does not exceed EUR
25,000,000 (or its equivalent in other currencies) at any time;
(vii) any Financial Indebtedness created by any Partly Owned Storage
and Logistics Company with a third party in respect of which,
pursuant to the shareholder agreement or constitutional documents
relating to that Partly Owned Storage and Logistics Company, the
Group Company (the "INVESTING GROUP COMPANY") which holds a
direct equity interest in that Partly Owned Storage and Logistics
Company is not entitled to prohibit the creation of that
Financial Indebtedness, provided that the aggregate amount of
Financial Indebtedness ("THIRD PARTY INDEBTEDNESS") created
pursuant to this sub-paragraph (vii) by Partly Owned Storage and
Logistics Companies where any investing Group Company is liable
for the debts of that Partly Owned Storage and Logistics Company
does not exceed EUR 10,000,000 (or its equivalent in other
currencies) at any time;
(viii) bank guarantees (cautions bancaires) issued to French tax
authorities to secure the liabilities of any Group Company under
tax reassessments in respect of French professional tax (taxe
professionnelle); and
(ix) any other Financial Indebtedness incurred with the prior consent
of the Majority Lenders.
(b) GUARANTEES
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will grant or make available any guarantee other than:
(i) any guarantee existing on the date of this agreement, provided
that the maximum amount guaranteed by any such guarantee shall
not be increased after the date of this agreement;
(ii) any guarantee contained in any Senior Finance Document (or the
Existing Facilities Agreement (until the first Drawdown Date) or
the High Yield Guarantee (until the redemption of the High Yield
Notes));
(iii) any guarantee of Financial Indebtedness which is otherwise
permitted under clause 19.5(a) (Borrowings) (other than any such
Financial Indebtedness arising under or in connection with the
High Yield Documents or the Intra-Group Bond Documents); and
(iv) any other guarantees given by a Group Company (other than Xxxxx)
in the ordinary course of its (or any of its Subsidiaries' or
Joint Ventures') business in respect of its obligations or the
obligations of any of its Subsidiaries (other than Xxxxx)
provided that such obligations do not have the nature of
Financial Indebtedness and that the aggregate maximum contingent
liability under all such guarantees does not exceed EUR
50,000,000 (or its equivalent in other currencies) at any time.
56
(c) LOANS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, make any loans or grant any credit to any person
other than:
(i) credit granted by any Group Company (other than Xxxxx) in the
ordinary course of its trading activities;
(ii) any loan made by a Group Company (the "LENDING GROUP COMPANY") to
any other Group Company (the "BORROWING GROUP COMPANY") (in each
case, other than Xxxxx), provided that:
(A) the aggregate amount of outstanding loans made by Obligors
to Group Companies (other than loans made for the purposes
of making a Permitted Acquisition) which are not Obligors
(together with the aggregate amount of equity contributions
and/or shareholders' loans made pursuant to clause
19.4(b)(i) (Joint Ventures) but excluding for the avoidance
of doubt any equity contributions made pursuant to clause
19.4(b)(ii) (Joint Ventures)) shall at no time exceed EUR
23,000,000 (or its equivalent in other currencies); and
(B) if the lending Group Company is a Borrower under the
Revolving Facility, that lending Group Company grants to the
Finance Parties an assignment (cession) of the benefit of
that intercompany loan by way of security (pursuant to the
Xxx Xxxxxx);
(iii) any loan or grant of credit to employees of the Group (to the
extent permissible under applicable law) provided that the
maximum aggregate principal amount of all such loans shall not
exceed EUR 2,300,000 (or its equivalent in other currencies) for
the Group taken as a whole;
(iv) the Intra-Group Bonds (until the Final Refinancing Date); and
(v) any other loan or grant of credit granted with the prior consent
of the Majority Lenders.
(d) HEDGING
(i) No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, enter into any Derivative Instrument other
than (A) the Hedging Agreements referred to in sub-paragraph (ii)
below and (B) Derivative Instruments entered into by any Group
Company (other than Xxxxx) in the ordinary course of its business
for the purpose of managing or hedging its exposure to interest
rates, exchange rates or commodity prices (but excluding
speculative purposes).
(ii) The Obligors will ensure that, for a period of at least two years
from the Signing Date, the Group has hedging of interest rate
exposure on terms satisfactory to the Facility Agent in relation
to at least 50 per cent. of the amount of funds available under
the Term Facility (it being specified that the Parent hereby
represents that prior to the Signing Date it has entered into
hedging agreements complying with such undertaking).
(iii) The parties shall agree to use standard ISDA or FBF agreements
as Hedging Agreements.
57
(e) BANKING BUSINESS
Each Obligor will, and will procure that each of its Subsidiaries
will:
(i) only maintain bank accounts with:
(A) those banks with which they hold accounts at the date of
this agreement;
(B) banks which are approved by the Facility Agent (such
approval not to be unreasonably withheld or delayed); or
(C) any Finance Party; and
(ii) save for facilities provided under the terms of the Senior
Finance Documents, only carry on banking business with and
(subject to clause 19.5(a) (Borrowings)) obtain unsecured
overdraft and working capital facilities from banks approved by
the Facility Agent (such approval not to be unreasonably withheld
or delayed).
(f) RING FENCING OF XXXXX
Notwithstanding any other provision of this agreement, no Obligor will
(and each Obligor will procure that none of its Subsidiaries will):
(i) make any loan to or grant any financial accommodation to Xxxxx;
(ii) pay any interest, principal or any other amount to, or otherwise
transfer monies to Xxxxx whatsoever (except pursuant to the High
Yield Documents and the Intra-Group Bond Documents to the extent
permitted by the Intercreditor Agreement or for the purpose of
the Refinancing);
(iii) grant any guarantee (except the High Yield Guarantee) or
Security Interest or enter into any participation or purchase
arrangements in relation to any obligation of Xxxxx;
(iv) sell, transfer, lease out, lend or otherwise dispose of any asset
to Xxxxx,
save in each case as expressly permitted under the Intercreditor
Agreement.
19.6 CONDUCT OF BUSINESS UNDERTAKINGS
(a) INSURANCE
(i) Each Obligor will, and will procure that each of its Subsidiaries
will effect and thereafter maintain insurances at its own expense
in relation to all its assets and risks of an insurable nature
with reputable insurers which:
(A) provide cover against such risks, and to such extent, as
normally insured against by other companies owning or
possessing similar assets or carrying on similar businesses;
and
(B) shall be in amounts which would in the circumstances be
prudent for those companies.
(ii) The Parent will:
58
(A) supply to the Facility Agent on request copies of each
policy for insurance required to be maintained in accordance
with clause 19.6(a)(i) or (ii) (the "POLICIES"), together
with the current premium receipts relating to the policies;
(B) as soon as reasonably practicable, notify the Facility Agent
of any material change to the insurance cover of each
Obligor and each Obligor's subsidiaries; and
(C) as soon as reasonably practicable, notify the Facility Agent
of any claim under any policy which is for, or is reasonably
likely to result in a claim under that policy for, an amount
in excess of EUR 775,000 (or its equivalent in other
currencies).
(b) INTELLECTUAL PROPERTY
Each Obligor will, and will procure that each of its Subsidiaries
will:
(i) ensure that it beneficially owns or has all necessary consents to
use all the Intellectual Property Rights that it requires in
order to conduct its business;
(ii) observe and comply with all obligations and laws applicable to it
in relation to the Intellectual Property; and
(iii) maintain and protect the Intellectual Property required for the
operation of its business;
in each case where not doing so could reasonably be expected to
prejudice the interests of the Finance Parties under the Senior
Finance Documents.
(c) TAXES
Each Obligor will, and will procure that each of its Subsidiaries
will, pay when due (or within any applicable time limit), all Taxes
imposed upon it or any of its assets, income or profits on any
transactions undertaken or entered into by it except in relation to
any bona fide tax dispute (for which, if applicable, provision has
been made in its accounts).
(d) ARM'S LENGTH TRANSACTIONS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, enter into any agreement or arrangement other than
on an arm's length basis.
19.7 ENVIRONMENTAL UNDERTAKINGS
Each Obligor will, and each Obligor will procure that each of its
Subsidiaries will:
(a) comply in all material respects with all Environmental Approvals and
Environmental Laws applicable to it;
(b) obtain and maintain to the satisfaction of all relevant regulatory
bodies all Environmental Approvals applicable to it;
(c) promptly upon receipt of the same notify the Facility Agent of any
claim, notice or other communication served on it in relation to any
Environmental Law or Environmental Approval
59
applicable to it or if it becomes aware of any actual material
variation to any Environmental Law or Environmental Approval;
(d) promptly notify the Facility Agent of any material investment required
to be made by any Group Company to maintain, acquire, renew, modify,
amend, surrender or revoke any Environmental Approval or if it
otherwise becomes aware of such a requirement; and
(e) use all reasonable precautions to avoid actions which may give rise to
a material liability under Environmental Law.
19.8 TRANSACTION DOCUMENT UNDERTAKINGS
(a) CLAIMS UNDER MATERIAL CONTRACTS
The Parent will, and will use its best efforts to procure that each of
its Subsidiaries will:
(i) take all reasonable action to enforce all material rights it may
have under any Material Contract;
(ii) notify the Facility Agent promptly of any material claim made by
a Group Company under any Material Contract;
(iii) provide the Facility Agent with reasonable details of that claim
and its progress; and
(iv) notify the Facility Agent as soon as practicable upon that claim
being resolved,
in each case where failure to do so could reasonably be expected to
prejudice the interests of the Finance Parties under the Senior
Finance Documents.
(b) CHANGES TO CONSTITUTIONAL DOCUMENTS
The Parent will not, and will procure that none of its Subsidiaries
will, agree to any amendment of any term of any constitutional
document which could reasonably be expected to adversely affect the
interests of any Finance Party under the Senior Finance Documents.
(c) CHANGES TO THE HIGH YIELD DOCUMENTS AND INTRA-GROUP BOND DOCUMENTS
The Parent will not, and will procure that Xxxxx will not agree to any
amendment of the High Yield Documents or Intra-Group Bond Documents
which would conflict with any provision of the Intercreditor
Agreement.
19.9 SHARE CAPITAL, DIVIDEND AND OTHER JUNIOR FINANCING ARRANGEMENT UNDERTAKINGS
(a) SHARE ISSUES
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, allot or issue any securities (valeurs mobilieres)
other than:
(i) an issue of shares by one Group Company (other than Xxxxx) to
another Group Company (other than Xxxxx) allowing, in the case of
non wholly-owned members of the Group, for proportionate issues
to minority shareholders;
(ii) an issue of shares by one Group Company (other than Xxxxx) to any
Group pension scheme or employee incentive scheme;
60
(iii) any issue of shares in the Parent for the purposes of an Equity
Contribution; or
(iv) any issue of shares with the prior consent of the Majority
Lenders.
(b) REDEMPTION AND ACQUISITION OF OWN SHARES
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, directly or indirectly redeem, purchase, retire or
otherwise acquire any shares or warrants issued by it or otherwise
reduce its capital, other than:
(i) in favour of an Obligor; or
(ii) where it is obliged to do so by law.
(c) CASH MOVEMENT
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, be a party to any contractual or similar
restriction (except as set out in any Senior Finance Document, the
Existing Facilities Agreement (until the first Drawdown Date) any High
Yield Document (until the redemption of the High Yield Notes) or any
Intra-Group Bond Document (until the first Drawdown Date)) by which
any Group Company is prohibited from making loans, transferring assets
or making any payment of dividends, distributions of income or other
amounts.
(d) INTRA-GROUP BOND DOCUMENTS AND HIGH YIELD DOCUMENTS
The Parent shall notify the full redemption of the High Yield Notes
and Intra-Group Bonds in accordance with the applicable provisions of
the High Yield Documents and Intra-Group Bond Documents, so as to
allow the Final Refinancing Date to occur within the 60 days following
the first Drawdown Date.
19.10 INFORMATION AND ACCOUNTING UNDERTAKINGS
(a) DEFAULTS
Each Obligor will notify the Facility Agent forthwith upon becoming
aware of the occurrence of a Default and will from time to time on
request (with a reasonable period between requests) supply the
Facility Agent with a certificate signed by its mandataire social
certifying that no Default has occurred and is continuing or, if that
is not the case, setting out details of any Default which is
outstanding and the action taken or proposed to be taken to remedy it.
(b) BOOKS OF ACCOUNT AND AUDITORS
Each Obligor will, and will procure that each of its Subsidiaries
will:
(i) keep proper books of account relating to its business; and
(ii) have as its auditors any one of Deloitte & Touche, Ernst & Young,
KPMG, PricewaterhouseCoopers, Mazars, RSM Xxxxxxxx Xxxxxx or
Xxxxx Xxxxxxx (or such other firm as the Facility Agent shall
approve (such approval not to be unreasonably withheld or
delayed)) (except in the case of a Partly Owned Storage and
Logistics Company which, as at the Signing Date, has a different
firm of auditors and, pursuant to the shareholder agreement or
constitutional documents relating to that Partly Owned Storage
and Logistics Company, the Group Company which holds a direct
61
equity interest in that Partly Owned Storage and Logistics
Company is not entitled to procure a change of those existing
auditors).
(c) FINANCIAL STATEMENTS
The Parent will deliver to the Facility Agent (with sufficient copies
for each of the Lenders if requested):
(i) as soon as available, and in any event within 90 days (with
respect to (A) below) or 120 days (with respect to (B) below)
after the end of each Financial Year, copies of:
(A) the consolidated management accounts (before audit) of the
Group as at the end of and for that Financial Year,
including a profit and loss account, balance sheet and cash
flow statement;
(B) the audited consolidated accounts of the Group as at the end
of and for that Financial Year, including a profit and loss
account, balance sheet, cash flow statement and directors
and auditors' report on those accounts; and
(C) the audited accounts of each Obligor for that Financial
Year;
(ii) as soon as available, and in any event within 60 days of the end
of the first Accounting Half-Year in each Financial Year, copies
of the unaudited consolidated management accounts of the Group as
at the end of and for that Accounting Half-Year, including, for
the 6 month period comprising such Accounting Half-Year, a profit
and loss account, balance sheet, cash flow statement and
management commentary for the Group, in such form as the Facility
Agent may reasonably require;
(iii) no less than ten days before the beginning of each Financial
Year, the Operating Budget for that Financial Year, in such form
as the Facility Agent may reasonably require,
which accounts, Operating Budget and update to the Operating Budget
shall, in each case, have been approved by the chief financial officer
of the Parent.
(d) COMPLIANCE CERTIFICATES
(i) Each of the Annual Accounts, Annual Management Accounts and
Half-Year Accounts must be accompanied by a certificate signed by
the chief financial officer and (in the case of the Annual
Accounts only) the mandataire social of the Parent, which shall:
(A) certify whether or not, as at the date of the relevant
accounts, the Parent was in compliance with the financial
covenants contained in clause 19.11 (Financial Covenant -
Leverage Ratio) and contain reasonably detailed
calculations; and
(B) confirm that, as at the date of that certificate, no Event
of Default is outstanding and, to best of knowledge after
due and careful inquiry, no Potential Event of Default is
outstanding.
(ii) Each of the Annual Accounts must be accompanied by a certificate
from the Auditors which shall be in a form substantially in
schedule 7.
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(e) APPROVED ACCOUNTING PRINCIPLES
All accounts of any Group Company delivered to the Facility Agent
under this agreement shall be prepared in accordance with the Approved
Accounting Principles. If there is a change in the Approved Accounting
Principles after the date of this agreement:
(i) the Parent shall as soon as practicable advise the Facility
Agent;
(ii) following request by the Facility Agent, the Parent and the
Facility Agent shall negotiate in good faith with a view to
agreeing any amendments to clauses 19.11 (Financial Covenant-
Leverage Ratio) and 19.12 (Financial definitions) which are
necessary to give the Lenders comparable protection to that
contemplated by those clauses at the date of this agreement;
(iii) if amendments satisfactory to the Majority Lenders are agreed by
the Parent and the Facility Agent within 30 days of that
notification to the Facility Agent, those amendments shall take
effect in accordance with the terms of that agreement; and
(iv) if amendments satisfactory to the Majority Lenders are not so
agreed within 30 days then, within 15 days after the end of that
30 day period, the Parent shall either:
(A) deliver to the Facility Agent, in reasonable detail and in a
form satisfactory to the Facility Agent, details of all any
adjustments which need to be made to the relevant accounts
in order to bring them into line with the Approved
Accounting Principles as at the date of this agreement; or
(B) ensure that the relevant accounts are prepared in accordance
with the Approved Accounting Principles as at the date of
this agreement.
(f) MANAGEMENT MEETINGS
The Facility Agent shall be entitled to call for meetings with the
chief executive officer and/or the chief financial officer of the
Parent and/or Antargaz twice in each Financial Year to discuss
financial information delivered under clause 19.10(c) (Financial
statements) on reasonable prior notice and at times reasonably
convenient to the chief executive officer and/or chief financial
officer.
(g) ACCOUNTING REFERENCE DATE AND TAX CONSOLIDATION
(i) The Parent shall not change its Financial Year end without the
prior consent of the Facility Agent. The Parent shall procure
that the financial year end of each of its Subsidiaries is the
same as the Financial Year end (except, in the case of a Partly
Owned Storage and Logistics Company which, as at the Signing
Date, has a different financial year end and, pursuant to the
terms of the shareholders agreement or constitutional documents
relating to that Partly Owned Storage and Logistics Company, the
Group Company which holds a direct equity interest in that Partly
Owned Storage and Logistics Company is not entitled to procure a
change of that existing financial year end).
(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. For the avoidance
of doubt, the Parent and its Subsidiaries shall be authorised to
make payments to UGI Bordeaux under the Tax Consolidation
63
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 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.
(h) INVESTIGATIONS
(i) If the Majority Lenders have reasonable grounds for believing
that either:
(A) any accounts or calculations provided under this agreement
are inaccurate or incomplete in any material respect; or
(B) the Parent is, or may in future be, in breach of any of its
obligations under clause 19.11 (Financial Covenant -
Leverage Ratio),
then the Parent will at its own expense, if so required by
the Facility Agent, instruct the Auditors (or other firm of
accountants selected by the Facility Agent) to discuss the
financial position of the Group with the Facility Agent and
to disclose to the Facility Agent and the Lenders (and
provide copies of) such information as the Facility Agent
may reasonably request regarding the financial condition and
business of the Group.
(ii) If, having taken the steps in sub-paragraph (i) above, the
Majority Lenders request so, the Facility Agent may instruct the
Auditors (or other firm of accountants selected by the Facility
Agent) to carry out an investigation at the Parent's expense into
the affairs, the financial performance and/or the accounting and
other reporting procedures and standards of the Group, and the
Parent will procure that full co-operation is given to the
Auditors or other firm of accountants so selected.
(i) OTHER INFORMATION
The Parent will promptly deliver to the Facility Agent for
distribution to the Lenders:
(i) details of any material litigation, arbitration, administrative
or regulatory proceedings relating to it or any of its
Subsidiaries;
(ii) details of any material labour dispute affecting it or any of its
Subsidiaries;
(iii) at the same time as it is sent to its creditors, any other
material document or information sent to any class of its
creditors generally (excluding for this purpose creditors which
are Group Companies) including all material documents or
information provided by the Issuer or Xxxxx to the High Yield
Trustee or to the holders of the High Yield Notes (including
early redemption notices);
(iv) any other information relating to the financial condition or
operation of any Group Company which the Facility Agent may from
time to time reasonably request;
(v) details of any material breach of the provisions of any Supply
Agreement or Service Contract of which it is aware; and
(vi) copies of any material notice given or received under the Supply
Agreements or the Service Contracts.
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(j) "KNOW YOUR CUSTOMER" CHECKS
(i) If:
(A) the introduction of or any change in (or in the
interpretation, administration or application of) any law or
regulation made after the date of this agreement;
(B) any change in the status of any member of the Group after
the date of this agreement; or
(C) a proposed assignment or transfer by a Lender of any of its
rights and obligations under this agreement to a party that
is not a Lender prior to such assignment or transfer,
obliges the Facility Agent or any Lender (or, in the case of
paragraph (C) above, any prospective new Lender) to comply with
"know your customer" or similar identification procedures in
circumstances where the necessary information is not already
available to it, each member of the Group shall promptly upon the
request of the Facility Agent or any Lender supply, or procure
the supply of, such documentation and other evidence as is
reasonably requested by the Facility Agent (for itself or on
behalf of any Lender) or any Lender (for itself or, in the case
of the event described in paragraph (C) above, on behalf of any
prospective new Lender) in order for the Facility Agent, such
Lender or, in the case of the event described in paragraph (C)
above, any prospective new Lender to carry out and be satisfied
it has complied with all necessary "know your customer" or other
similar checks under all applicable laws and regulations pursuant
to the transactions contemplated in the Finance Documents.
(ii) Each Lender shall promptly upon the request of the Facility Agent
supply, or procure the supply of, such documentation and other
evidence as is reasonably requested by the Facility Agent (for
itself) in order for the Facility Agent to carry out and be
satisfied it has complied with all necessary "know your customer"
or other similar checks under all applicable laws and regulations
pursuant to the transactions contemplated in the Finance
Documents.
19.11 FINANCIAL COVENANT - LEVERAGE RATIO
The Parent undertakes that it will procure that the ratio of Total Net Debt
as at each Testing Date to EBITDA for the Testing Period ending on that
Testing Date shall not exceed 3.75:1 as at that Testing Date.
19.12 FINANCIAL DEFINITIONS
For the purposes of clause 19.11 (Financial Covenant - Leverage Ratio):
"CASH" means cash at bank credited to an account in the name of a Group
Company with an Eligible Lender and to which that Group Company is
beneficially entitled which is repayable on demand (or within 30 days of
demand) without condition;
"CASH EQUIVALENTS" means marketable debt securities with a maturity of
three months or less and with a short-term debt rating of at least A1 +
granted by Standard & Poor's Ratings Group (a division of The McGraw Hill
Companies, Inc.) or Pl granted by Xxxxx'x Investors Services, Inc. to which
a Group Company is beneficially entitled, and which can be realised by that
Group Company without any significant delay;
"EBITDA" means the consolidated profit of the Group for the relevant
Testing Period:
65
(a) before any deduction of corporation tax or other Taxes on income or
gains;
(b) before any deduction for Interest Payable;
(c) after deducting (to the extent otherwise included) Interest
Receivable;
(d) excluding extraordinary items;
(e) after deducting (to the extent otherwise included) the amount of
profit (or adding back the amount of loss) of:
(i) any Group Company (other than the Parent) which is attributable
to any third party (other than a Group Company) which is a
shareholder in that Group Company; and
(ii) any company or other person which is not a Group Company but
whose profits or losses are taken into account in the calculation
of the consolidated profit of the Group for that Testing Period;
(f) after adding back or deducting, as the case may be, the amount of any
loss or gain against book value arising on a disposal of any asset
(other than stock disposed of in the ordinary course of trading)
during that Testing Period, to the extent included in arriving at
EBITDA for that Testing Period;
(g) before deducting amortisation of any goodwill or any intangible
assets;
(h) before deducting any depreciation on fixed assets;
(i) before amortisation of any Refinancing Costs; and
(j) after adding back or deducting, as the case may be, the variation of
any provision during that Testing Period which does not have any cash
impact;
For the avoidance of doubt, "EBITDA" shall not be reduced by the
Refinancing Costs incurred and paid by the Group during that Testing
Period;
"ELIGIBLE LENDER" means any bank or financial institution with a short-term
debt rating of at least A1 granted by Standard & Poor's Ratings Group (a
division of the McGraw Hill Companies, Inc.) or P1 granted by Xxxxx'x
Investors Services, Inc.;
"INTEREST" means interest and amounts in the nature of interest paid or
payable in relation to any Financial Indebtedness including:
(a) the interest element of finance leases;
(b) discount and acceptance fees payable (or deducted) in relation to any
Financial Indebtedness;
(c) fees payable in connection with the issue or maintenance of any bond,
letter of credit, guarantee or other assurance against financial loss
which constitutes Financial Indebtedness and is issued by a third
party on behalf of a Group Company (but excluding Refinancing Costs);
(d) repayment and prepayment premiums payable or incurred in repaying or
prepaying any Financial Indebtedness; and
66
(e) commitment, utilisation and non-utilisation fees payable or incurred
in relation to Financial Indebtedness (but excluding Refinancing
Costs);
"INTEREST PAYABLE" means the total of:
(a) Interest accrued (whether or not paid or capitalised) during the
relevant Testing Period; and
(b) the amount of the discount element of any Financial Indebtedness
amortised during that Testing Period,
as an obligation of any Group Company during that period and adjusted for
amounts payable and receivable under Derivative Instruments entered into
for the purposes of managing or hedging interest rate risk;
"INTEREST RECEIVABLE" means the amount of Interest accrued (including
interest and/or dividends received by the Group during the relevant Testing
Period under Cash Equivalent investments) due to Group Companies (other
than by other Group Companies) during the relevant Testing Period which is
freely available to meet the Group's payment obligations;
"TESTING DATE" means the date specified in the relevant table as the date
as at (or to) which a particular financial ratio is being tested;
"TESTING PERIOD" means, subject to clause 19.14 (Calculation adjustments)
each period which corresponds to the annual accounting reference period of
the Parent or two consecutive Accounting Half-Years and ending on or about
a Testing Date;
"TOTAL NET DEBT" means, at any time, the aggregate outstanding principal or
capital amount of all Financial Indebtedness of the Group calculated on a
consolidated basis less Cash and Cash Equivalents owned by Group Companies,
except that:
(a) in the case of any finance lease only the capitalised value of that
finance lease (as determined in accordance with the Approved
Accounting Principles) shall be included;
(b) in the case of any guarantee referred to in the definition of
Financial Indebtedness in clause 1.1 (Definitions), the amount of that
guarantee shall not be included, to the extent it relates to (a)
indebtedness of another Group Company already included in the
calculation of Total Net Debt;
(c) any Financial Indebtedness arising under any Equity Contribution
(including under the UGI Bordeaux Letter of Undertakings) shall be
excluded; and
(d) any amount drawn under the Revolving Facility shall be excluded.
19.13 CALCULATION
(a) The covenants contained in clause 19.11 (Financial Covenant - Leverage
Ratio) will be tested by reference to the Annual Accounts and the
Half-Year Accounts for the relevant Testing Period.
(b) If the Annual Accounts are not available when any covenant referred to
in clause 19.13(a) is tested, but when those Annual Accounts become
available, they show that the figures in any relevant Half-Year
Accounts utilised for any such calculation cannot have been
substantially accurate, the Facility Agent may require such
adjustments to the calculations made or to be made which it, in its
sole discretion, considers appropriate to rectify that inaccuracy and
67
compliance with the covenants in clause 19.11 (Financial Covenant -
Leverage Ratio) will be determined by reference to those adjusted
figures.
(c) The components of each definition used in clause 19.11 (Financial
Covenant - Leverage Ratio) will be calculated in accordance with the
Approved Accounting Principles, as varied by this agreement.
(d) For the avoidance of doubt, for the purpose of calculating the ratios
referred to in clause 19.11 (Financial Covenant - Leverage Ratio),
each component of such ratios shall not double-count the same amount
in the same calculation.
19.14 CALCULATION ADJUSTMENTS
For the purpose of determining compliance with the financial covenants in
clause 19.11 (Financial covenant - Leverage Ratio) if the Group acquires a
company or companies (having obtained any necessary consent under this
agreement to do so), until the first Testing Date which falls more than 12
months after the relevant company or companies became Subsidiaries of the
Parent, the results of such company or companies will be deemed included
with those of the rest of the Group for the full duration of the relevant
Testing Period as if such company or companies had become a Group Company
at the commencement of the Testing Period. Any necessary aggregation of
their results will be confirmed by the Auditors and will not include any
synergy benefits expected (save as provided in the definition of Permitted
Acquisition in clause 1.1 (Definitions)) to be achieved as a result of the
acquisition of such company or companies.
20. EVENTS OF DEFAULT
20.1 LIST OF EVENTS
Each of the events set out in this clause 20.1 constitutes an Event of
Default, whether or not the occurrence of the event concerned is outside
the control of any Group Company.
(a) PAYMENT DEFAULT
Any Obligor fails to pay within five Business Days' of the due date
any amount payable by it under any Senior Finance Document at the
place at which and in the currency in which it is expressed to be
payable.
(b) BREACH OF OTHER OBLIGATIONS
(i) Any Obligor fails to comply with any of its obligations under
clauses 19.3 (Disposals and security undertakings) to 19.5
(Financing arrangement undertakings) (inclusive) (except clause
19.5(e)) or 19.11 (Financial Covenant - Leverage Ratio) (whether
or not the relevant obligation is enforceable against that Group
Company).
(ii) Any Group Company fails to comply with any of its obligations
under any Senior Finance Document (whether or not the relevant
obligation is enforceable against that Group Company), other than
those specified in clause 20.1(a) (Payment default) or clause
20.1(b)(i) and, if that failure is in the opinion of the Facility
Agent capable of remedy, it is not remedied within 15 Business
Days of the earlier of:
(A) the Facility Agent notifying the Parent of that default; and
(B) any Group Company becoming aware of such failure.
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(c) MISREPRESENTATION
Any representation, warranty or statement which is made by any Group
Company in any Senior Finance Document or is contained in any
certificate, statement or notice provided under or in connection with
any Senior Finance Document is incorrect in any material respect when
made (or when deemed to be made or repeated) and, if the circumstances
giving rise to that default are in the opinion of the Facility Agent
capable of remedy, they are not remedied within 15 Business Days of
the earlier of:
(i) the Facility Agent notifying the Parent of that default; and
(ii) any Group Company becoming aware of such misrepresentation.
(d) INVALIDITY AND UNLAWFULNESS
(i) Any provision of any Senior Finance Document is or becomes
invalid or unenforceable for any reason or is repudiated or the
validity or enforceability of any provision of any Senior Finance
Document is contested by any person or any party to any Senior
Finance Document (other than a Finance Party) denies the
existence of any liability or obligation on its part under any
Senior Finance Document.
(ii) It is or becomes unlawful under any applicable jurisdiction for
any Group Company to perform any of its obligations under any
Senior Finance Document.
(iii) Any act, condition or thing required to be done, fulfilled or
performed in order to:
(A) enable any Group Company lawfully to enter into, exercise
its rights under and perform the obligations expressed to be
assumed by it under any Finance Document to which it is
party;
(B) ensure that the obligations expressed to be assumed by any
Group Company under any Finance Document to which it is
party are legal, valid and binding (save for obligations
subject to qualifications as to matters of law contained in
the legal opinions referred to in paragraph 9 of schedule
3);
(C) make each any Finance Document admissible in evidence in the
courts of France or the jurisdiction in which any Group
Company is incorporated (other than certified translations
of the Finance Documents into French); and
(D) create the security constituted by the Security Documents to
which any Group Company is party,
is not done, fulfilled or performed.
(e) INSOLVENCY
(i) The Parent or any Material Company stops or suspends or
threatens, or announces an intention to stop or suspend, payment
of its debts (including cessation des paiements, whether pursuant
to the applicable provisions of the French Commercial Code or
otherwise).
(ii) The Parent or any Material Company is, for the purpose of any
applicable law, deemed to be unable, or admits its inability, to
pay its debts as they fall due or becomes insolvent or a
moratorium (sursis de paiements) is declared in relation to any
indebtedness of any Group Company.
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(f) RECEIVERSHIP AND ADMINISTRATION
(i) Any encumbrancer takes possession of, or a receiver or
administrator or similar officer (including a conciliateur or an
administrateur provisoire or a mandataire ad hoc) is appointed
over or in relation to, all or any part of the assets of the
Parent or any Material Company.
(ii) A petition is presented, a meeting is convened, an application is
made or any other step is taken for the purpose of appointing an
administrator or receiver or other similar officer (including a
conciliateur or an administrateur provisoire or a mandataire ad
hoc) of, or for the making of an administration order in relation
to the Parent or any Material Company (including the opening of
any redressement judiciaire or procedure de sauvegarde), in each
case unless such proceedings are discharged or stayed within 15
days.
(g) COMPOSITIONS AND ARRANGEMENTS
(i) The Parent or any Material Company convenes a meeting of its
creditors generally or proposes or makes any arrangement or
composition with, or any assignment for the benefit of, its
creditors generally.
(ii) The Parent or any Material Company proposes or enters into any
negotiations for or in connection with the rescheduling,
restructuring or re-adjustment of any indebtedness by reason of,
or with a view to avoiding, financial difficulties.
(h) WINDING UP
(i) Any meeting of the Parent or any Material Company is convened for
the purpose of considering any resolution for (or to petition
for) its winding up (liquidation judiciaire or amiable) or passes
such a resolution (other than as a result of a permitted
amalgamation).
(ii) A petition is presented for the winding up of the Parent or any
Material Company which is not discharged or stayed within 30
days.
(iii) An order is made for the winding up of the Parent or any
Material Company.
(i) ATTACHMENT OR PROCESS
A creditor attaches or takes possession of (mesure de saisie) or a
distress, execution, (execution forcee), sequestration or other
process is levied or enforced upon or sued out against all or any part
of the assets the aggregate value of which exceeds EUR 3,000,000 (or
its equivalent in other currencies) of the Parent or any Material
Company and in each case such proceedings are not discharged or stayed
within 30 days, save where that Group Company is in good faith
contesting such attachment, sequestration, distress or execution
before a competent court and these proceedings do not and are not
likely to affect the ability of any Obligor to comply with its
obligations under the Senior Finance Documents.
(j) SUSPENSION OF PAYMENTS
Any order is made, any resolution is passed or any other action is
taken for the suspension of payments, protection from creditors or
bankruptcy of the Parent or any Material Company.
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(k) SIMILAR EVENTS ELSEWHERE
There occurs in relation to the Parent or any Material Company or any
of its assets in any country or territory in which it is incorporated
or carries on business or to the jurisdiction of whose courts it or
any of its assets is subject any event which appears to the Facility
Agent to correspond in that country or territory with any of those
mentioned in clauses 20.1(e) (Insolvency) to 20.1(j) (Suspension of
payments) (inclusive), it being agreed that any such events shall be
subject, to the extent permitted by applicable law, to the same cure
periods, remedies and other qualifying terms set out in these clauses
(if any).
(l) CESSATION OF BUSINESS
The Parent or any Material Company ceases, or threatens or proposes to
cease to carry on all or a substantial part of its business (cessation
totale ou partielle de l'entreprise) other than as a result of a
transfer of all or any part of its business to a Group Company as
permitted by this agreement.
(m) COMPULSORY ACQUISITION
All or any part of the assets of the Parent or any Material Company
which are necessary to the business of the Group are seized,
nationalised, expropriated or compulsorily acquired by, or by the
order of, any central or local governmental authority in relation to
which full market value compensation is not paid.
(n) SECURITY INTERESTS
Any Security Interest affecting the business, undertaking or any of
the assets of the Parent or any Material Company and securing
indebtedness exceeding EUR 3,000,000 (or its equivalent in other
currencies) in aggregate becomes enforceable and steps are taken to
enforce the same which are not withdrawn or stayed within 30 days save
where that Group Company is in good faith contesting these steps by
appropriate proceedings and these steps do not and are not likely to
affect the ability of any Obligor to comply with its obligations under
the Senior Finance Documents.
(o) CROSS DEFAULT
Any Financial Indebtedness of any Group Company or Group Companies
exceeding EUR 3,000,000 (or its equivalent in other currencies) in
aggregate:
(A) is not paid when due or within any originally applicable grace
period in any agreement relating to that Financial Indebtedness;
or
(B) becomes due and payable (or capable of being declared due and
payable but in this case unless the existence of the relevant
event of default is being contested in good faith by the relevant
Group Company before the relevant court) before its normal
maturity or is placed on demand (or any commitment for any such
indebtedness is cancelled or suspended) by reason of a default or
event of default (however described).
(p) LITIGATION
Any litigation, arbitration or administrative proceeding is commenced
by or against any Group Company which is reasonably likely to be
resolved against the relevant Group Company and, if so resolved, could
reasonably be expected to have a Material Adverse Effect.
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(q) INTERCREDITOR BREACH
The Parent fails to comply with its obligations under the
Intercreditor Agreement or the Intercreditor Agreement ceases to be
binding upon any such party for whatever reason, in each case in a
manner which could reasonably be expected to prejudice the interests
of the Finance Parties under the Senior Finance Documents.
(r) AUDITORS' QUALIFICATION
The Auditors qualify their report on any Annual Accounts in any manner
which could reasonably be expected to prejudice the interests of the
Finance Parties under the Senior Finance Documents.
(s) MATERIAL CONTRACTS
(i) Any Material Contract is terminated or otherwise ceases to be in
full force and effect (other than on expiry under its terms, as
in force at the date of this agreement).
(ii) Any amendment is made to any Material Contract without the prior
consent of the Majority Lenders which could reasonably be
expected to be materially adverse to the interests of the Finance
Parties under the Senior Finance Documents.
(iii) Any Group Company breaches any term of or repudiates any of its
obligations under any Material Contract the result of which could
reasonably be expected to be materially adverse to the interests
of the Finance Parties under the Senior Finance Documents.
(t) 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 be materially adverse to the interests
of the Finance Parties under the Senior Finance Documents.
(u) UGI BORDEAUX
UGI Bordeaux fails to comply with any of its obligations under the UGI
Bordeaux Letter of Undertakings.
(v) MATERIAL ADVERSE EFFECT
At any time there occurs any event or default not mentioned in any of
the provisions of this clause 20.1 which, in the opinion of the
Majority Lenders, could reasonably be expected to have a Material
Adverse Effect.
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20.2 CANCELLATION AND REPAYMENT
Subject to Clause 20.3 (Certain Funds Period), at any time after the
occurrence of an Event of Default (and for so long as it is continuing),
the Facility Agent may, and will if so directed by the Majority Lenders, by
notice to the Parent do all or any of the following, in addition and
without prejudice to any other rights or remedies which it or any other
Finance Party may have under any other Senior Finance Document:
(a) terminate the availability of the Facilities, whereupon the Facilities
shall cease to be available for drawing, the undrawn portion of the
Commitments of each of the Lenders shall be cancelled and no Lender
shall be under any further obligation to make Advances or issue Bank
Guarantees; and/or
(b) declare all or any Advances, accrued interest on those Advances and
any other amounts then payable under any Senior Finance Document to be
immediately due and payable, whereupon those amounts shall become so
due and payable; and/or
(c) declare all or any Advances to be payable on demand, whereupon those
Advances shall become payable on demand; and/or
(d) require the provision of cash cover in relation to all or any
outstanding Contingent Liabilities, whereupon each Borrower shall
immediately provide cash cover in an amount equal to the total
Contingent Liability of the Lenders under all Bank Guarantees issued
for the account of the Borrowers.
20.3 CERTAIN FUNDS PERIOD
The Lenders will not exercise any rights of rescission, cancellation or
termination, whether pursuant to Clause 20.2 (Cancellation and Repayment)
or otherwise or any rights of set-off or counterclaim under the Senior
Finance Documents before the end of the Certain Funds Period. Once the
conditions precedent under clause 4.1 (Initial conditions precedent) have
been satisfied, the Lenders shall only be entitled to decline to make
available the first Advance under the Senior Finance Documents in respect
of any drawing the purpose of which is to fund the Refinancing during the
Certain Funds Period by reason of any of the following events:
(a) any Sale, Listing or Change of Control (each as described in clause
11.3 (Sale, Change of Control, Listing) occurs;
(b) the Parent and/or Antargaz cancelling, rescinding or purporting to
rescind the Facilities (including, without limitation, under clause
11.9 (Cancellation of Term Facility) or 11.10 (Cancellation of
Revolving Facility)) in the case of any cancellation to the extent of
the amount so cancelled;
(c) any breach of the representations and warranties contained in clauses
18.2 (Incorporation), 18.3 (Power and capacity) or 18.4
(Authorisation) (to the extent that the breach of such representations
and warranties relate to an Obligor);
(d) any breach of the undertaking contained in clauses 19.2(c)
(Amalgamations), 19.2(f) (Pari-passu ranking), 19.4 (Acquisitions and
investment undertakings) (to the extent that such breach of that
clause could reasonably be expected to have a Material Adverse
Effect), 19.5(a) (Borrowings) (to the extent that such breach of that
clause could reasonably be expected to have a Material Adverse
Effect), 19.5(b) (Guarantees) (to the extent that such breach of that
clause could reasonably be expected to have a Material Adverse
Effect), 19.5(c) (Loans) (to the extent that such breach of that
clause could reasonably be expected to have a Material
73
Adverse Effect), 19.2(e) (Changes to Constitutional Documents),
19.9(a) (Shares Issues), 19.9(b) (Redemption and Acquisition of Own
Shares) or 19.9(c) (Cash Movement);
(e) any of the Events of Default referred to in clause 20.1(d) (Invalidity
and unlawfulness) occurring and is continuing by reason of
circumstances relating to the Parent only or as a result of a change
of any law or regulation occurring during the Certain Funds Period;
(f) any of the Events of Default referred to in clauses 20.1(e)
(Insolvency) to 20.1(k) (Similar events elsewhere) occurring and is
continuing;
(g) any of the events described in clause 14.2 (Illegality) occurs as a
result of a change of any law or regulation occurring during the
Certain Funds Period.
21. THE AGENTS AND THE OTHER FINANCE PARTIES
21.1 AGENTS' APPOINTMENT
(a) Each Lender:
(i) appoints Calyon as Facility Agent to act as its agent under and
in connection with the Senior Finance Documents and as Security
Agent to act as its security agent for the purposes of the
Security Documents and to execute the Security Documents on its
behalf; and
(ii) irrevocably authorises each Agent for and on its behalf to
exercise the rights, powers and discretions which are
specifically delegated to it by the terms of the Senior Finance
Documents, together with all rights, powers and discretions which
are incidental thereto and to give a good discharge for any
monies payable under the Senior Finance Documents.
(b) Each Agent will act solely as agent for the Lenders in carrying out
its functions as agent under the Senior Finance Documents and will
exercise the same care as it would in dealing with a credit for its
own account.
(c) The relationship between the Lenders and each Agent is that of
principal and agent only. No Agent shall have, nor be deemed to have,
assumed any obligations to, or trust or fiduciary relationship with,
the other Finance Parties or any Obligor, other than those for which
specific provision is made by the Senior Finance Documents.
21.2 AGENTS' DUTIES
Each Agent shall:
(a) send to each Lender details of each communication delivered to the
Agent by an Obligor for that Lender under any Senior Finance Document
as soon as reasonably practicable after receipt;
(b) subject to those provisions of this agreement which require the
consent of all the Lenders, act in accordance with any instructions
from the Majority Lenders or, if so instructed by the Majority
Lenders, refrain from exercising a right, power or discretion vested
in it under any Senior Finance Document;
(c) have only those duties, obligations and responsibilities expressly
specified in the Senior Finance Documents; and
74
(d) without prejudice to clause 21.6(c) (Communications and information),
promptly notify each Lender:
(i) of any Default which occurs under clause 20.1(a) (Payment
default); and
(ii) if the Agent receives notice from an Obligor referring to this
agreement, describing a Default and stating that the circumstance
described is a Default.
21.3 AGENTS' RIGHTS
Each Agent may:
(a) perform any of its duties, obligations and responsibilities under the
Senior Finance Documents by or through its personnel, delegates or
agents (on the basis that each 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 any Senior Finance
Document, refrain from exercising any right, power or discretion
vested in it under the Senior Finance Documents until it has received
instructions from the Majority Lenders or, where relevant, all the
Lenders;
(c) unless it has received notice to the contrary, treat the Lender which
makes available any portion of a Drawing as the person entitled to
repayment of that portion;
(d) refrain from doing anything which would or might in its opinion be
contrary to any law, regulation or judgement 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 judgement;
(e) assume that no Default has occurred, unless an officer of that Agent
while active on the account of the Parent acquires actual knowledge to
the contrary;
(f) refrain from taking any step (or further step) to protect or enforce
the rights of any Lender under any Senior Finance 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;
(g) rely on any communication or document believed by it to be genuine and
correct and to have been communicated or signed by the person to whom
it purports to be communicated or by whom it purports to be signed;
(h) rely as to any matter of fact which might reasonably be expected to be
within the knowledge of any Group Company in a statement by or on
behalf of that Group Company;
(i) obtain and pay for any legal or other expert advice or services which
may seem necessary or desirable to it and rely on any such advice;
(j) 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
(k) hold or deposit any title deeds, 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 deeds or
75
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 amounts
required to be paid on account or in relation to any such deposit.
21.4 EXONERATION OF THE ARRANGER AND THE AGENTS
None of the Arranger, the Agents or any of their respective personnel or
agents shall be:
(a) responsible for the adequacy, accuracy or completeness of any
representation, warranty, statement or information in the Syndication
Memorandum, any Senior Finance Document or any notice or other
document delivered under any Senior Finance Document;
(b) responsible for the execution, delivery, validity, legality, adequacy,
enforceability or admissibility in evidence of any Senior Finance
Document;
(c) obliged to enquire as to the occurrence or continuation of a Default
or as to the accuracy or completeness of any representation or
warranty made by any Obligor under any Senior Finance Document;
(d) responsible for any failure of any Obligor or any of the Lenders duly
and punctually to observe and perform their respective obligations
under any Senior Finance Document;
(e) responsible for the consequences of relying on the advice of any
professional advisers selected by any of them in connection with any
Senior Finance Document;
(f) liable for acting (or refraining from acting) in what it believes to
be in the best interests of the Lenders in circumstances where it has
been unable, or it is not practicable, to obtain the instructions of
the Lenders or the Majority Lenders (as the case may be); or
(g) liable for anything done or not done by it under or in connection with
any Senior Finance Document, save in the case of its own gross
negligence or wilful misconduct or by a material breach of any of its
Obligations under the Senior Finance Documents.
21.5 THE ARRANGER AND THE AGENTS INDIVIDUALLY
(a) If it is a Lender, the Arranger and each of the Agents shall have the
same rights and powers under the Senior Finance Documents as any other
Lender and may exercise those rights and powers as if it were not also
acting as an Arranger or an Agent.
(b) The Arranger and the Agents may:
(i) retain for its own benefit and without liability to account any
fee or other amount 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).
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21.6 COMMUNICATIONS AND INFORMATION
(a) All communications to an Obligor in connection with the Senior Finance
Documents are to be made by or through the Facility Agent. Each
Finance Party will notify the Facility Agent of, and provide the
Facility Agent with a copy of, any communication between that Finance
Party, an Obligor or any other Finance Party on any matter concerning
the Facilities or the Senior Finance Documents.
(b) No Agent will be obliged to transmit to any other Finance Party any
information relating to any party to any Senior Finance Document which
that Agent may have acquired otherwise than in connection with the
Facilities or the Senior Finance Documents. Notwithstanding anything
to the contrary expressed or implied in any Senior Finance Document,
no Agent shall, as between itself and the other Finance Parties, be
bound to disclose to any other Finance Party or other person any
information, disclosure of which might in the opinion of that Agent
result in a breach of any law or regulation or be otherwise actionable
at the suit of any person or any information supplied by any Group
Company to any Agent which is identified by such Group Company at the
time of supply as being unpublished, confidential or price sensitive
information relating to a proposed transaction by a Group Company and
supplied solely for the purpose of evaluating in consultation with the
relevant Agent whether such transaction might require a waiver or
amendment to any of the provisions of the Senior Finance Documents.
(c) In acting as agent for the Lenders, each Agent's banking division will
be treated as a separate entity from any other of its divisions (or
similar unit of that Agent in any subsequent re-organisation) or
subsidiaries (the "OTHER DIVISIONS") and, if the relevant Agent acts
for any Group Company in a corporate finance or other advisory
capacity ("ADVISORY CAPACITY"), any information given by any Group
Company to one of the Other Divisions is to be treated as confidential
and will not be available to the Finance Parties without the consent
of the Parent, except that:
(i) the consent of the Parent will not be required in relation to any
information which the relevant Agent in its discretion determines
relates to a Default or in relation to which the Lenders have
given a confidentiality undertaking in a form satisfactory to
that Agent and the relevant Group Company (acting reasonably);
and
(ii) if representatives or employees of the relevant 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 that Agent in their capacity
as agent bank or security agent under this agreement or to any
Lender, if to do so would breach any rule or regulation or
fiduciary duty imposed upon those persons.
21.7 NON-RELIANCE ON THE ARRANGER AND THE AGENTS
Each Lender 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 Arranger or any 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; or
(b) to check or enquire into the adequacy, accuracy or completeness of any
information provided by any Group Company under or in connection with
any Senior Finance Document (whether
77
or not that information has been or is at any time circulated to it by
the Arranger or an Agent), including that contained in the Syndication
Memorandum; or
(c) to assess or keep under review the business, operations, financial
condition, creditworthiness, status or affairs of any Group Company.
21.8 AGENTS' INDEMNITY
(a) Each Lender shall on demand indemnify each Agent (in proportion to
that Lender's participation in the Drawings (or the Total Commitments
if there are no Drawings outstanding) at the relevant time) against
any loss incurred by the relevant Agent in complying with any
instructions from the Lenders or the Majority Lenders (as the case may
be) or otherwise sustained or incurred in connection with the Senior
Finance Documents or its duties, obligations and responsibilities
under the Senior Finance Documents, except to the extent that it is
incurred as a result of the gross negligence or wilful misconduct of
the relevant Agent or any of its personnel.
(b) The provisions of clause 21.8(a) are without prejudice to any
obligations of the Obligors to indemnify the Agents under the Senior
Finance Documents.
21.9 TERMINATION AND RESIGNATION OF AGENCY
(a) An Agent (a "RETIRING AGENT") may resign its appointment at any time
by giving notice to the Lenders and the Parent.
(b) A successor Agent (a "SUCCESSOR AGENT") shall be selected:
(i) by the Retiring Agent nominating one of its Affiliates following
consultation with the Parent as Successor Agent in its notice of
resignation; or
(ii) if the Retiring Agent makes no such nomination, by the Majority
Lenders nominating a Lender acting through an office in France as
Successor Agent (following consultation with the Parent); or
(iii) if the Majority Lenders have failed to nominate a Successor
Agent within 30 days of the date of the Retiring Agent's notice
of resignation, by the Retiring Agent (following consultation
with the Parent) nominating a financial institution of good
standing acting through an office in France to be the Successor
Agent.
(c) The Majority Lenders may at any time with the prior consent of the
Parent, such consent not to be unreasonably withheld or delayed, by 30
days' prior notice to the relevant Agent and the Parent terminate the
appointment of an Agent and appoint a Successor Agent.
(d) The resignation of the Retiring Agent and the appointment of the
Successor Agent will become effective only upon the Successor Agent
accepting its appointment as Agent (and, in the case of the Security
Agent's resignation, upon the execution of all agreements and
documents necessary to substitute its successor as holder of the
security comprised in the Security Documents), at which time:
(i) the Successor Agent will become bound by all the obligations of
the Facility Agent or Security Agent (as the case may be) and
become entitled to all the rights, privileges, powers,
authorities and discretions of that Agent under the Senior
Finance Documents;
78
(ii) the agency of the Retiring Agent will terminate (but without
prejudice to any liabilities which the Retiring Agent may have
incurred prior to the termination of its agency); and
(iii) the Retiring Agent will be discharged from any further liability
or obligation under or in connection with the Senior Finance
Documents (except that the Retiring Agent shall pay to the
Successor Agent a pro rata proportion of the agency fee referred
to in clause 15.2 (Agency fee) for the 12 month period in
relation to which that agency fee was most recently paid).
(e) The Retiring Agent will co-operate with the Successor Agent in order
to ensure that its functions are transferred to the Successor Agent
without disruption to the service provided to the Parent and the
Lenders and will, as soon as practicable following the Successor
Agent's appointment, make available to the Successor Agent the
documents and records which have been maintained in connection with
the Senior Finance Documents in order that the Successor Agent is able
to discharge its functions.
(f) The provisions of this agreement will continue in effect for the
benefit of any Retiring Agent in relation to any actions taken or
omitted to be taken by it or any event occurring before the
termination of its agency.
21.10 ROLE OF THE SECURITY AGENT
The Security Agent shall hold the benefit of the Security Documents as
agent for itself and the other Finance Parties and will apply all payments
and other benefits received by it under the Security Documents in
accordance with the provisions of the relevant Security Documents and this
agreement.
21.11 PAYMENTS TO FINANCE PARTIES
(a) Each Agent will account to each other Finance Party for its due
proportions of all amounts received by that Agent for that Finance
Party, whether by way of repayment of principal or payment of
interest, commitment commission, fees or otherwise.
(b) Each Agent may retain for its own use and benefit, and will not be
liable to account to any other Finance Party for all or any part of,
any amounts received by way of agency or arrangement fee or by way of
reimbursement of expenses incurred by it.
21.12 CHANGE OF OFFICE OF AGENT
An Agent may at any time in its sole discretion by notice to the Parent and
each other Finance Party designate a different office in France from which
its duties as the relevant Agent will be performed from the date of
notification.
22. PRO RATA PAYMENTS
22.1 RECOVERIES
If any amount owing by any Obligor under any Senior Finance Document to a
Lender (the "RECOVERING LENDER") is discharged by payment, set-off or any
other manner other than through the Facility Agent in accordance with
clause 12 (Payments) (that amount being referred to in this clause 22.1 as
a "RECOVERY") then:
(a) within two Business Days of receipt of the Recovery, the Recovering
Lender shall pay to the Facility Agent an amount equal (or equivalent)
to that Recovery;
79
(b) the Facility Agent shall treat that payment as if it was part of the
payment to be made by the relevant Obligor to the Lenders rateably in
accordance with their respective Commitments; and
(c) (except for any receipt by the Recovering Lender as a result of the
operation of clause 23.1(b)) as between the relevant Obligor and the
Recovering Lender, the Recovery shall be treated as not having been
paid.
22.2 NOTIFICATION OF RECOVERY
Each Lender will notify the Facility Agent as soon as reasonably
practicable of any Recovery by that Lender, other than by payment through
the Facility Agent. If any Recovery subsequently has to be wholly or partly
refunded by the Recovering Lender which paid an amount equal to that
Recovery to the Facility Agent under clause 22.1(a) (Recoveries), each
Lender to which any part of that amount was distributed will, on request
from the Recovering Lender, repay to the Recovering Lender that Lender's
pro rata share of the amount which has to be refunded by the Recovering
Lender.
22.3 INFORMATION
Each Lender will on request supply to the Facility Agent any information
which the Facility Agent may from time to time request for the purpose of
this clause 22.
22.4 EXCEPTIONS TO SHARING OF RECOVERIES
Notwithstanding the foregoing provisions of this clause 22.1, no Recovering
Lender will be obliged to share any 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).
22.5 SEVERAL OBLIGATIONS
Failure by any Recovering Lender to comply with any of the provisions of
this clause 22 will not release any other Recovering Lender from any of its
obligations or liabilities under this clause 22.
22.6 OBTAINING CONSENTS
Each party to this agreement shall take all steps required of it under
clause 22.1 (Recoveries) and use its reasonable endeavours to obtain any
consents or authorisations which may be required in relation to any payment
to be made by it under this clause 22.
22.7 NO SECURITY
The provisions of this clause 22 shall not, and shall not be construed so
as to, constitute a charge by any Lender over all or any part of any amount
received or recovered by it under any of the circumstances mentioned in
this clause 22.
23. SET-OFF
23.1 SET-OFF RIGHTS
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Any Finance Party may at any time after an Event of Default has occurred
(without notice to the relevant Obligor):
(a) set-off or otherwise apply amounts standing to the credit of any
Obligor's accounts with that Finance Party; and
(b) set-off any other obligations (then due for performance) owed by that
Finance Party to the relevant Obligor,
against any liability of the relevant Obligor to the relevant Finance Party
under the Senior Finance Documents which is due but unpaid.
23.2 DIFFERENT CURRENCIES
A Finance Party may exercise its rights under clause 23.1 (Set-off rights)
notwithstanding that the amounts concerned may be expressed in different
currencies and each Finance Party is authorised to effect any necessary
conversions at a market rate of exchange selected by it.
24. NOTICES
24.1 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 any Senior Finance Document
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 24.1(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);
(ii) the address and facsimile number notified by that party for this
purpose to the Facility 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 Facility 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 24.1(b).
24.2 DEEMED SERVICE
(a) Subject to clause 24.2(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.
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(b) A Notice given in accordance with clause 24.2(a) but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given on the next working day in that place.
24.3 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.
25. CONFIDENTIALITY
Subject to clause 26.8 (Disclosure of information), the parties will keep
the Senior Finance Documents, the Syndication Memorandum and their subject
matter and any matter relating thereto (including all details relating to
the structure and financing of the Acquisition) confidential, except to the
extent that they are required by law or regulation to disclose the same.
Each Finance Party agrees with each Obligor to hold confidential all
information which it acquires under or in connection with the Senior
Finance Documents, except to the extent it is required by law or regulation
to disclose it or it comes into the public domain (otherwise than as a
result of a breach of this clause 25). A Finance Party may, however,
disclose any such information to its auditors, legal advisers or other
professional advisers (the "ADVISERS") for any purpose connected with the
Senior Finance Documents, provided that the relevant Finance Party takes
reasonable steps to procure that each Adviser maintains the confidentiality
of that information.
26. CHANGES TO PARTIES
26.1 ASSIGNMENT BY THE OBLIGORS
No Obligor may assign or transfer all or any part of its rights, benefits
or obligations under any Senior Finance Document.
26.2 ASSIGNMENTS AND TRANSFERS BY LENDERS
(a) A Lender (in this capacity the "TRANSFEROR") may, subject to Clause
26.2(b) after prior consultation with the Parent at any time assign
any of its rights under any Senior Finance Document or transfer any of
its rights and obligations under any Senior Finance Document to any
person (a "TRANSFEREE"), provided that:
(i) in the case of an assignment or transfer by a Lender of part (but
not all) of its Commitments to a Transferee which is not, at the
time of the assignment or transfer, an existing Lender, the
aggregate amount of the Commitments of that Lender subject to
that assignment or transfer is at least EUR 2,500,000;
(ii) the Transferee has executed a Creditor Accession Agreement;
(iii) in the case of an assignment, it is made in accordance with
clause 26.3 (Assignments by Lenders);
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(iv) in the case of a transfer, it is made in accordance with clause
26.4 (Transfers by Lenders); and
(v) in the case of a transfer of the Revolving Facility, each Issuing
Lender has approved the Transferee (such approval not to be
unreasonably withheld or delayed).
(b) The Parent (for itself and as agent for the existing Obligors) will
execute or procure that there are executed such documents and
agreements as are necessary to effect a transfer of rights or
obligations to a Transferee under this agreement.
(c) Nothing in this agreement will restrict the ability of a Lender to
sub-participate or sub-contract any of its obligations under any
Senior Finance Document if that Lender remains liable under that
Senior Finance Document in relation to those obligations. A Lender
shall notify the Parent of any such sub-participation or
sub-contracting by it.
(d) The Transferee shall, under its own responsibility and at its own
costs, notify the assignment of rights made in connection with the
assignment or transfer to the Obligors through a bailiff in accordance
with Article 1690 of the French Code Civil.
26.3 ASSIGNMENTS BY LENDERS
(a) If any Lender wishes to assign all or any of its rights and benefits
under the Senior Finance Documents, the relevant Transferee shall
deliver a notice to the Facility Agent confirming to the Facility
Agent (on behalf of the other parties to the Senior Finance Documents
(other than the Transferor and the Transferee)) that it shall be under
the same obligations towards each of them as it would have been under
if it had been an original party to the Senior Finance Documents as a
Lender.
(b) Upon delivery of a notice under clause 26.3(a), the relevant
Transferee shall (subject to clause 26.2 (Assignments and transfers by
Lenders) become a party to the Senior Finance Documents as a Lender.
26.4 TRANSFERS BY LENDERS
(a) A Transferor may, subject to clause 26.2 (Assignments and transfers by
Lenders), after prior consultation with the Parent transfer all or any
of its rights and obligations under the Senior Finance Documents to a
Transferee by means of a transfer effected by the Facility Agent
executing a Transfer Certificate which has been duly completed and
signed by both the Transferee and the Transferor.
(b) On the later of (A) the date specified in the Transfer Certificate as
being the date on or as from which the transfer under this clause 26.4
is to take effect and (B) the date on which the Facility Agent
executes the Transfer Certificate, to the extent that, in the Transfer
Certificate, the Transferor seeks to transfer its right and
obligations under the Senior Finance Documents:
(i) the Transferor and the other parties to the relevant Senior
Finance Documents (the "EXISTING PARTIES") will be released from
their obligations to each other under those Senior Finance
Documents (the "DISCHARGED OBLIGATIONS");
(ii) the Transferee and the Existing Parties will assume obligations
towards each other which differ from the Discharged Obligations
only insofar as they are owed to or assumed by the Transferee
instead of the Transferor;
(iii) the rights of the Transferor and the Existing Parties against
each other under those Senior Finance Documents (the "DISCHARGED
RIGHTS") will be cancelled;
83
(iv) the Transferee and the Existing Parties will acquire rights
against each other which differ from the Discharged Rights only
insofar as they are exercisable by or against the Transferee
instead of the Transferor; and
(v) the Transferee will become a party to this agreement as a Lender
in relation to the relevant Facility.
(c) Each of the parties to this agreement (other than the relevant
Transferor and the relevant Transferee) irrevocably authorises the
Facility Agent to execute on its behalf any Transfer Certificate which
has been duly completed in accordance with this clause 26.4 and
executed by each of the Transferor and the Transferee.
(d) The Facility Agent will notify the other parties to this agreement of
the receipt and execution by it on their behalf of any Transfer
Certificate as soon as reasonably practicable following execution.
(e) For the purposes of article 1278 of the French Civil Code, each party
to this agreement agrees that upon any transfer under this clause 26.4
(Transfers by Lenders), the guarantees and Security Interests created
under any of Senior Finance Documents shall be preserved for the
benefit of all Finance Parties including the Transferee.
26.5 FEE
On the date on which any transfer takes effect in accordance with this
clause 26, the Transferee will pay to the Facility Agent for its own
account a transfer fee of EUR 1,000 (VAT not included).
26.6 NO CONTINUING LIABILITY
Nothing in any Senior Finance Document will oblige a Transferor to, or
cause a Transferor to be liable to:
(a) accept a re-assignment or re-transfer from a Transferee of any of the
rights or obligations assigned, transferred or novated under this
clause 26; or
(b) support any losses incurred by a Transferee by reason of the
non-performance by any Obligor of its obligations under any Senior
Finance Document.
26.7 BENEFIT OF AGREEMENT
This agreement will be binding on, and enure for the benefit of, each party
to it and its or any subsequent successors or assigns.
26.8 DISCLOSURE OF INFORMATION
Each Lender may disclose to a proposed assignee or transferee or any
sub-participant, risk participant or other participant proposing to enter
or having entered into a contract with that Lender regarding the Senior
Finance Documents any information in the possession of that Lender relating
to any Group Company provided that, prior to disclosing any information in
accordance with this clause 26.8, a Lender will obtain from any potential
assignee, transferee or sub-participant, or, as the case may be, from its
Affiliate, and deliver to the Parent, a confidentiality undertaking,
addressed to the Obligors, in substantially the same form as given by each
Lender under clause 25 or such other form as the Parent on behalf of the
Obligors may approve.
26.9 NO ADDITIONAL COST TO OBLIGORS
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If any assignment or transfer results, at or after the time of the
assignment or transfer, in additional amounts (other than Mandatory Costs)
becoming due by any Obligor under any provision of this agreement, the
Transferee shall be entitled to receive such additional amounts only to the
extent that the Transferor would have been so entitled had there been no
such assignment or transfer.
26.10 REPLACEMENT OF LENDERS
If at any time:
(a) any Lender becomes insolvent or under administration;
(b) the Parent becomes obliged to pay additional amounts as described in
clause 14.1 (Increased Costs) to any Lender; or
(c) any Lender refuses to agree to any request for a consent, waiver or
amendment to the Finance Documents which the Borrower or the Facility
Agent has requested and has otherwise been agreed to by Lenders whose
Commitments exceed 90% of the Total Commitments;
then the Borrower may replace such Lender by requiring such Lender to (and
such Lender shall) transfer all of its rights and obligations under this
Agreement to another Lender (or another bank or financial institution)
selected by the Borrower which confirms its willingness to assume and does
assume all the obligations of the transferring Lender, for a purchase price
equal to the outstanding principal amount of such Lender's participation in
the outstanding Advances and all accrued interest and fees and other
amounts payable to that Lender hereunder.
27. LENDERS' DECISIONS
27.1 PROCEDURES
(a) Subject to clauses 27.2 (Exceptions) and 27.3 (Express provisions),
any provision of any Senior Finance Document may be amended or waived
(each a "MODIFICATION") with the agreement of the Majority Lenders and
the Parent. A Modification so agreed may be effected by the Facility
Agent executing any documents which may be required for that purpose
on behalf of itself and all the other Finance Parties and the Parent
executing those documents on behalf of itself and all the other
Obligors.
(b) The Facility Agent will as soon as practicable after any Modification
is made in accordance with clause 27.1(a) notify the other parties to
the Senior Finance Documents. Any such Modification will take effect
from the date on which that notification is given (or any later date
which the Facility Agent may specify in that notification) and will be
binding on all parties to the Senior Finance Documents.
27.2 EXCEPTIONS
The following matters will require the unanimous agreement of all of the
Lenders:
(a) any increase in the Commitment of any Lender;
(b) save as otherwise provided in clause 7.6 (Margin adjustment), any
reduction of the Margin or any reduction of (or change in the currency
of) the amount of any payment of principal, interest, guarantee fee or
commission payable by any party under any Senior Finance Document;
85
(c) any extension of any Availability Period, any Maturity Date, any
Repayment Date or any other date for payment of any amount due, owing
or payable to any Lender under any Senior Finance Document;
(d) any change to the Borrowers or Guarantors or any release of security,
other than in accordance with clause 17 (Changes to Obligors and
Security); or
(e) any amendment of the definition of "Majority Lenders" in clause 1.1
(Definitions) or any amendment of clause 3.3 (Rights and obligations
of Finance Parties), clause 22 (Pro rata payments), clause 26 (Changes
to Parties) (save for any amendment of an administrative nature) or
this clause 27.
27.3 EXPRESS PROVISIONS
Any consent or other matter which, by the express terms of any Senior
Finance Document, is to be given by all the Lenders will not be effective
unless all the Lenders have agreed to it but, subject to the agreement of
all the Lenders having been obtained, may be given by the Facility Agent on
behalf of all the Lenders.
28. INDEMNITIES
28.1 GENERAL INDEMNITY AND BREAKAGE COSTS
The Parent will indemnify each Finance Party on demand against any loss
(including loss of profit) which it incurs as a result of:
(a) the occurrence of any Event of Default;
(b) any failure by an Obligor to pay any amount due under a Senior Finance
Document on its due date;
(c) any Drawing not being made for any reason (other than as a result of a
default by a Finance Party) on the Drawdown Date specified in the
relevant Drawdown Request; or
(d) any Advance or overdue amount under a Senior Finance Document being
repaid or prepaid otherwise than on the last day of an Interest Period
relating to that Advance or overdue amount,
in each case upon production of duly documented evidence.
28.2 CURRENCY INDEMNITY
Without prejudice to clause 28.1 (General indemnity and breakage costs),
if:
(a) any amount payable by any Obligor under or in connection with any
Senior Finance Document is received by any Finance Party (or by an
Agent on behalf of any Finance Party) in a currency (the "PAYMENT
CURRENCY") other than that agreed in the relevant Senior Finance
Document (the "AGREED CURRENCY"), whether as a result of any judgement
or order, the enforcement of any judgement or order, the liquidation
of the relevant Obligor or otherwise, and the amount produced by
converting the Payment Currency so received into the Agreed Currency
is less than the relevant amount of the Agreed Currency; or
(b) any amount payable by any Obligor under or in connection with any
Senior Finance Document has to be converted from the Agreed Currency
into another currency for the purpose of (i) making or filing a claim
or proof against any Obligor, (ii) obtaining an order or
86
judgement in any court or other tribunal or (iii) enforcing any order
or judgement given or made in relation to any Senior Finance Document,
then that Obligor will, as an independent obligation, on demand indemnify
the relevant Finance Party for the deficiency and any loss sustained as a
result, upon production of duly documented evidence. Any conversion
required will be made at the prevailing rate of exchange on the date and in
the market determined by the relevant Finance Party as being most
appropriate for the conversion. That Obligor will also pay the costs of the
conversion.
28.3 WAIVER
The Parent waives any right it may have in any jurisdiction to pay any
amount under any Senior Finance Document in a currency other than that in
which it is expressed to be payable in that Senior Finance Document.
29. MISCELLANEOUS
29.1 CERTIFICATES CONCLUSIVE
Save as expressly provided otherwise in any Senior Finance Document, a
certificate, determination, notification or opinion of any Finance Party
stipulated for in any Senior Finance Document or as to any rate of interest
or any other amount payable under any Senior Finance Document will be
conclusive and binding on each Obligor, except in the case of manifest
error.
29.2 NO IMPLIED WAIVERS
(a) No failure or delay by any Finance Party in exercising any right,
power or privilege under any Senior Finance Document 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 the Senior Finance Documents 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 any Senior Finance Document, be available to the
Finance Parties severally 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 other consent granted by any Finance Party under any
Senior Finance Document will be effective only if given in writing and
then only in the instance and for the purpose for which it is given.
29.3 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.
30. GOVERNING LAW AND SUBMISSION TO JURISDICTION
30.1 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.
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30.2 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 at first instance and determining any
dispute arising out of this agreement and for the purpose of enforcement of
any judgement against its assets.
30.3 ELECTION OF DOMICILE
For the benefit of each Finance Party, each Obligor (other than the Parent)
irrevocably elects domicile with the Parent for the purposes of the Senior
Finance Documents.
Executed on 7 December 2005.
In six original copies.
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SCHEDULE 1
LENDERS
TERM REVOLVING
COMMITMENT (EUR) COMMITMENT (EUR)
---------------- ----------------
CALYON
Leverage and Financial Sponsors Group
0 xxxx xx Xxxxxxxxx Xxxx Xxxxxx
00000 Xxxxxxxxxx Xxxxx - Xxxxxx 380,000,000 50,000,000
Facsimile: x00 0 00 00 00 00 / 14 33
Attention: Xxxxxx Del Ben / Xxxxxxxx
Xxxx-Giraudon
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SCHEDULE 2
SECURITY DOCUMENTS
1. BY THE PARENT
Each of the following documents executed by the Parent in favour of the
Security Agent in the agreed form:
(a) pledge of financial instruments accounts (nantissement de compte
d'instruments financiers) over all the shares of Antargaz;
(b) a general assignment (cession) of all Receivables by way of security
(pursuant to the Xxx Xxxxxx);
(c) the agreement relating to the Refinancing Cash Collateral Account.
2. BY ANTARGAZ
Each of the following documents executed by Antargaz in favour of the
Security Agent in the agreed form:
(a) a general assignment (cession) of all Receivables by way of security
(pursuant to the Xxx Xxxxxx);
(b) pledges of financial instruments accounts (nantissements de compte
d'instruments financiers) and pledges of shares (nantissements de
parts sociales) over all the shares (less a maximum of 10 shares) of
the following Companies held by Antargaz:
(i) Wogegal SA;
(ii) Gaz Est Distribution SA; and
(iii) Rhone Mediterranee Gaz SA.
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SCHEDULE 3
DOCUMENTARY CONDITIONS PRECEDENT
1. FORMALITIES CERTIFICATES
A certificate in the agreed form from each Obligor signed by its chief
financial officer (or as the case may be its chief executive officer)
attaching, in relation to the relevant Obligor, the following documents:
(a) a certified copy of the statuts and extrait K-bis of such Obligor and,
in respect of Antargaz only, of each of the Subsidiaries of Antargaz
whose shares are pledged pursuant to the Senior Finance Documents;
(b) a certified copy of the resolution of the board of directors of such
Obligor (or equivalent) approving the transactions and matters
contemplated by the Senior Finance Documents to which that Obligor is
or is to be a party and the Refinancing and approving the execution,
delivery and performance of each and authorising named persons to sign
the Senior Finance Documents to which it is or is to be a party and
any documents to be delivered by that Obligor under any of the same;
and
(c) if required under its constitutional or governing documents, a
certified copy of a resolution of the shareholders' meeting of the
Obligor approving (i) the transactions and matters contemplated by the
Senior Finance Documents to which that Obligor is or is to be a party
and (ii) the Refinancing.
2. SENIOR FINANCE DOCUMENTS
Certified copies of the following documents in the agreed form duly
executed and delivered by all parties to them:
(a) the Security Documents;
(b) the Fees Letter;
(c) the Intercreditor Agreement; and
(d) the UGI Bordeaux Letter of Undertaking.
3. INDEBTEDNESS AND SECURITY INTERESTS
A certificate in the agreed form from the Parent and Antargaz signed by the
chief executive officer of the Parent and the chief financial officer of
Antargaz setting out the financial indebtedness of the Group as at the
Signing Date and all Security Interests granted by the members of the Group
as at the Signing Date (other than those securing the Existing Facilities).
4. FINANCIAL INFORMATION
Certified copies in the agreed form of:
(a) the Original Audited Accounts;
(b) the Original Management Accounts;
(c) the Approved Projections.
5. ANCILLARY SECURITY NOTICES
(a) The originals of the documents set out below to be issued in
connection with the Security Documents and duly signed on behalf of
each relevant Obligor:
91
(i) declaration xx xxxx and attestation xx xxxx relating to the
special charged account to which the shares of Antargaz are
credited;
(ii) declaration xx xxxx and attestation xx xxxx relating to the
special charged account to which the shares of Wogegal SA, Gaz
Est Distribution SA and Rhone Mediterranee Gaz SA subject to a
Security Document are credited;
(iii) a bordereau Dailly from the Parent relating to the general
assignment of Receivables (to the extent required under the
relevant master agreement); and
(iv) a bordereau Dailly from Antargaz relating to the general
assignment of Receivables (to the extent required under the
relevant master agreement).
(b) All third party consents required to be obtained on or prior to the
first Drawdown Date in any Security Document (including under any
clause d'agrement).
6. REFINANCING AND RELEASE OF EXISTING SECURITY
Evidence satisfactory to the Facility Agent that:
(a) the Obligors have cancelled all the Existing Facilities effective on
the first Drawdown Date;
(b) all outstanding amounts under the Existing Term Facility will be fully
repaid on the first Drawdown Date out of the proceeds of the Term
Facility, and that all outstanding amounts (if any) under the Existing
Revolving Facility will be fully repaid out of the proceeds of the
cash of the Parent and as the case may be, a first Revolving Advance
made on the first Drawdown Date;
(c) Calyon as security agent of the Existing Facilities Agreement, acting
on behalf of all beneficiaries (including existing hedging banks) of
the security interests granted in connection with the Existing
Facilities Agreement has fully released with effect on the first
Drawdown Date all such existing security interests;
7. FEES
Evidence satisfactory to the Facility Agent that, upon drawdown of the
first Advance, all fees payable in accordance with the Fees Letter will be
paid and all stamp duty and other fees (whether in relation to filings,
property transfers, security or otherwise) will be paid.
8. TEG LETTER
The original letter referred to in clause 7.8 (Effective global rate)
substantially in the form set out in schedule 8 and counter-signed on
behalf of the Parent.
9. LEGAL OPINIONS
Each of the following legal opinions in agreed form:
(a) a legal opinion of Shearman & Sterling LLP as to matters of French law
relating to validity and enforceability of the Senior Finance
Documents;
(b) a legal opinion of Weil, Gotshal & Xxxxxx LLP as to matters of French
law relating to capacity and authority in relation to the Obligors
party to the Senior Finance Documents;
92
(c) a legal opinion of Linklaters Xxxxxx as to matters of Luxembourg law
relating to the status, capacity and authority of Xxxxx in respect of
its execution of the Intercreditor Agreement; and
(d) a legal opinion of Ashurst as to matters of English law concerning the
High Yield Documents.
10. FUNDS FLOW
Delivery of a satisfactory funds flow showing that aggregate proceeds
(including the Term Facility) shall be sufficient to fully refinance the
Existing Indebtedness and fees and other expenses incurred in connection
with the Refinancing, together with the relevant instruction letters.
11. TAX STRUCTURE MEMORANDUM
Delivery of a tax structure memorandum of Weil, Gotshal & Xxxxxx LLP
describing the refinancing steps and related tax matters (together with a
customary reliance letter).
12. TAX CONSOLIDATION AGREEMENT
Delivery of a certified copy of the Tax Consolidation Agreement.
13. KYC CHECKS
Delivery of satisfactory "Know your customers" checks documents.
93
SCHEDULE 4
PART 1 - DRAWDOWN REQUEST - ADVANCES
To: Calyon as Facility Agent
Attention: [__________]
From: [BORROWER/PARENT]
Date: [__________]
Dear Sirs,
RE: FACILITIES AGREEMENT DATED 7 DECEMBER 2005 (THE "FACILITIES AGREEMENT")
We request a Drawing of the [TERM/ REVOLVING] Facility as follows:
(a) Amount: EUR [__________]
(b) Currency EUR [__________]
(c) Drawdown Date: EUR [__________]
(d) Interest Period: EUR [__________]
(e) Payment should be made to: EUR [__________]
(f) The Borrower is: EUR [__________]
We confirm that:
(i) the representations and warranties made in clause 18 (Representations and
Warranties) of the Facilities Agreement stipulated as being made or
repeated on the date of this Drawdown Request are true and accurate as if
made in relation to the facts and circumstances existing on that date;
(ii) each Obligor is in full compliance with its undertakings contained in
clause 19 (Undertakings) of the Facilities Agreement; and
(iii) [no Default has occurred and is continuing or will occur as a result of
the proposed Advance being made.](1) [[None of the events specified in
clauses 20.3(a) to 20.3(g) has occurred and is continuing].(2)]
Terms defined in the Facilities Agreement have the same meanings when used in
this request.
----------------------
[AUTHORISED SIGNATORY]
for and on behalf of
[BORROWER/PARENT]
----------
(1) For any other Drawdown Request than the first Drawdown Request.
(2) For the first Drawdown Request only.
94
PART 2 - DRAWDOWN REQUEST - BANK GUARANTEES
To: Calyon as Facility Agent
Attention: [__________]
From: [BORROWER/PARENT]
Date: [__________]
Dear Sirs,
RE: FACILITIES AGREEMENT DATED 7 DECEMBER 2005 (THE "FACILITIES AGREEMENT")
We request a Drawing of the Revolving Facility by way of issue of a Bank
Guarantee as follows:
Amount: EUR [__________]
Currency EUR [__________]
Drawdown Date: EUR [__________]
Beneficiary: EUR [__________]
Expiry Date: EUR [__________]
Obligation to be guaranteed: EUR [__________]
The Borrower is: EUR [__________]
We confirm that:
(i) the representations and warranties made in clause 18 (Representations and
Warranties) of the Facilities Agreement stipulated as being made or
repeated on the date of this Drawdown Request are true and accurate as if
made in relation to the facts and circumstances existing on that date;
(ii) each Obligor is in full compliance with its undertakings contained in
clause 19 (Undertakings) of the Facilities Agreement; and
(iii) no Default has occurred and is continuing or will occur as a result of the
proposed Advance being made.
We attach the form of the proposed Bank Guarantee.
Terms defined in the Facilities Agreement have the same meanings when used in
this request.
------------------------
[AUTHORISED SIGNATORY]
for and on behalf of
[BORROWER/PARENT]
95
SCHEDULE 5
TRANSFER CERTIFICATE(3)
[(REFERRED TO IN CLAUSE 26.4 (TRANSFERS BY LENDERS)]
To: Calyon as Facility Agent
for and on behalf of the Obligors and the Finance Parties
(each as defined in the Facilities Agreement referred to below).
This transfer certificate (this "CERTIFICATE") relates to a facilities agreement
dated 7 December 2005 between, among others, AGZ Holding (the "PARENT"),
Antargaz S.A., the banks and financial institutions named in that agreement as
lenders and Calyon as Facility Agent and Security Agent (as from time to time
amended the "FACILITIES AGREEMENT"). Terms defined in the Facilities Agreement
shall, unless otherwise defined in this Certificate, have the same meanings when
used in this Certificate.
1. TRANSFEROR CONFIRMATION AND REQUEST
[NAME OF TRANSFEROR] (the "TRANSFEROR") by its execution of this
Certificate:
(a) requests [NAME OF TRANSFEREE] (the "TRANSFEREE") to accept and
procure, in accordance with clause 26.4 (Transfers by Lenders), the
transfer to the Transferee of the portion of the Transferor's
Commitment and participation in the Facilities (and in the Advances
made by it) as specified in schedule 1 to this Certificate (the
"TRANSFER RIGHTS") by counter-signing this Certificate and delivering
it to the Facility Agent at its address for notices under the
Facilities Agreement, so as to take effect on the date specified in
schedule 2 to this Certificate (the "TRANSFER DATE"); and
(b) confirms that the details which appear in schedule 1 to this
Certificate accurately record the amount of the Transferor's
Commitments and the principal amount of the Transfer Rights at the
date of this Certificate.
2. TRANSFEREE REQUEST
The Transferee, by its execution of this Certificate, requests each Obligor
and each Finance Party to accept this Certificate as being delivered under
and for the purposes of clause 26.4 (Transfers by Lenders), so as to take
effect in accordance with the terms of that clause on the Transfer Date.
3. TRANSFER FEE
The Transferee shall pay to the Facility Agent for the Facility Agent's own
account a transfer fee of EUR [1,000] (VAT not included) as specified in
clause 26.5 (Fee).
----------
(3) Each of the Transferor and Transferee should ensure that all regulatory
requirements are satisfied in connection with its entry into of any
Transfer Certificate.
96
4. TRANSFEREE REPRESENTATIONS
The Transferee:
(a) confirms that it has received from the Transferor a copy of the
Facilities Agreement, together with all other documents and
information which it has requested in connection with the Facilities
Agreement;
(b) confirms that it has not relied, and will not after the date of this
Certificate rely, on the Transferor or any other Finance Party to
check or enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of any of those
documents or that information;
(c) agrees that it has not relied, and will not after the date of this
Certificate rely, on the Transferor or any other Finance Party to
assess or keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of the Parent
or any other party to the Facilities Agreement;
(d) represents and warrants to the Transferor and each other Finance Party
that it has the power to become a party to the Facilities Agreement as
a Lender on the terms set out in the Facilities Agreement and this
Certificate and has taken all necessary steps to authorise execution
and delivery of this Certificate;
(e) acknowledges the limitations on the Transferor's obligations set out
in clause 26.6 (No continuing liability); and
(f) agrees that if any Transfer Rights are rescheduled or renegotiated,
the Transferee and not the Transferor will be subject to the
rescheduled or renegotiated terms.
5. TRANSFEREE COVENANTS
The Transferee undertakes with the Transferor and each other party to the
Facilities Agreement that it will perform in accordance with its terms all
those obligations which, by the terms of the Facilities Agreement, will be
assumed by it following delivery of this Certificate to the Facility Agent.
6. EXCLUSION OF TRANSFEROR'S LIABILITIES
Neither the Transferor nor any other Finance Party makes any representation
or warranty nor assumes any responsibility in relation to the legality,
validity, effectiveness, adequacy or enforceability of the Senior Finance
Documents and assumes no responsibility for the financial condition of the
Parent or any other party to the Senior Finance Documents or for the
performance and observance by the Parent or any other Obligor of any of its
obligations under the Senior Finance Documents and all of those conditions
and warranties, whether express or implied by law or otherwise, are hereby
excluded.
7. SUBSTITUTION AND ASSUMPTION
On execution of this Certificate by the Facility Agent (on behalf of the
Transferor and the Transferee), the Transferee will become a party to the
Facilities Agreement on and with effect from the Transfer Date in
substitution for the Transferor in relation to those rights and obligations
which, by the terms of the Facilities Agreement and this Certificate, are
assumed by the Transferee. A copy of this Certificate shall be notified (at
the initiative and cost of the Transferee) to each Obligor through a French
huissier and the Transferee shall benefit from all of the Transferor's
rights under the Security Documents with respect to the Transfer Rights.
97
For the purposes of article 1278 of the French Civil Code, the guarantees
and Security Interests created under any of Senior Finance Documents shall
be preserved for the benefit of all Finance Parties including the
Transferee.
8. REVOLVING COMMITMENTS
To the extent that this Certificate operates to novate Revolving
Commitments, each Issuing Lender has consented to that novation in
accordance with clause 26.2 (Assignments and transfers by Lenders).
9. LAW
This Certificate (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this Certificate)
shall be governed by and construed in accordance with French law.
IN WITNESS of which the parties to this Certificate have duly executed this
Certificate on the date which appears at the end of this Certificate.
98
SCHEDULE 1 TO TRANSFER CERTIFICATE
Transferor's existing Term Commitment: EUR [___]
Transferor's existing Revolving Commitment: EUR [___]
Portion of Transferor's existing
[Term Commitment Term Advance] to be transferred: EUR [___]
Portion of Transferor's existing Revolving
Commitment to be transferred: EUR [___]
Portion of Transferor's existing Contingent
Liability under any relevant Bank Guarantee
to be transferred EUR [___]
[Participation in Revolving Advance(s) to be transferred(4):
Revolving Advance 1: Participation: EUR [___] Interest Period: [__] months, Maturity Date: 200[_]
Revolving Advance 2: Participation: EUR [___] Interest Period: [__] months, Maturity Date: 200[_]
[Revolving Advance [__]:] Participation: EUR [___] Interest Period: [__] months, Maturity Date: 200[_]
----------
(4) Only relevant if Transfer Date is during an Interest Period.
99
SCHEDULE 2 TO TRANSFER CERTIFICATE
PARTICULARS RELATING TO THE TRANSFEREE
Transfer Date: ______________________
Lending Office: _____________________
Contact Name: _______________________
Account for Payments: _______________
Address for Notices: ________________
Telephone: __________________________
Facsimile: __________________________
SIGNATORIES TO TRANSFER CERTIFICATE
[Transferor] [Transferee]
By: By:
--------------------------------- ------------------------------------
Date: [__________] Date: [__________]
[Facility Agent]
By:
---------------------------------
Date: [__________]
100
SCHEDULE 6
ACCESSION DOCUMENT
THIS AGREEMENT is made on [__________]
BETWEEN:
(1) [__________] (a company incorporated in [__________] [with registered
number [__________]]) (the "NEW OBLIGOR");
(2) AGZ HOLDING (a company incorporated in France as a societe anonyme with
registered number 413 765 108 RCS Paris) (the "PARENT") for itself and as
agent for the existing Obligors;
(3) Calyon in its capacity as Facility Agent under the Facilities Agreement;
and
(4) Calyon in its capacity as Security Agent under the Facilities Agreement.
BACKGROUND:
(A) This agreement is entered into in connection with facilities agreement (the
"FACILITIES AGREEMENT") dated 7 December 2005 between, amongst others, (1)
the Parent, (2) Antargaz, (3) Calyon as Arranger, (4) the banks and
financial institutions named in the Facilities Agreement as Lenders, (5)
Calyon as Facility Agent and Security Agent.
(B) This agreement has been entered into to record the admission of the New
Obligor as a [Borrower/ Guarantor] under the Facilities Agreement.
IT IS AGREED as follows:
1. DEFINITIONS
Words and expressions defined in the Facilities Agreement have the same
meanings when used in this agreement.
2. ADMISSION OF NEW OBLIGOR
2.1 THE NEW OBLIGOR AGREES TO BECOME:
a [Borrower/ Guarantor] under the Facilities Agreement and agrees to be
bound by the terms of the Credit Agreement as a [Borrower/ Guarantor].
2.2 The New Obligor confirms the appointment of the Parent as its agent on the
terms of clause 2.3 (Parent as Obligors' agent) of the Facilities
Agreement.
2.3 The New Obligor confirms that its address details for notices in relation
to clause 24 (Notices) are as follows:
Address: [__________]
Facsimile: [__________]
Attention of: [__________]
2.4 The parties to this agreement other than the New Obligor confirm their
acceptance of the New Obligor as a [Borrower/ Guarantor] for the purpose of
the Facilities Agreement].
101
3. REPRESENTATIONS
The New Obligor represents and warrants in the terms set out in 18.2
(Incorporation) to 18.5 (No contravention) inclusive and in 18.7 (Consents)
and acknowledges that the Facility Agent and the Security Agent enter into
this Accession Document in full reliance on those representations and
warranties.
4. LAW AND JURISDICTION
4.1 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.
4.2 For the benefit of each Finance Party, each of the Parent and the New
Obligor irrevocably submits to the 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 and
for the purpose of enforcement of any judgement against its assets.
4.3 For the benefit of each Finance Party, the New Obligor irrevocably elects
domicile with the Parent for the purposes of the Senior Finance Documents.
102
SIGNATORIES TO ACCESSION DOCUMENT
THE NEW OBLIGOR
[Name]
BY:
---------------------------------
THE PARENT
AGZ HOLDING
BY:
---------------------------------
for itself and as agent
for and on behalf of
the existing Obligors
THE FACILITY AGENT
[Name]
BY:
---------------------------------
for itself and as Facility Agent
on behalf of the Lenders
THE SECURITY AGENT
[Name]
BY:
---------------------------------
for itself and as Security Agent
on behalf of the Lenders
103
SCHEDULE 7
AUDITORS CERTIFICATE
[HEADED NOTEPAPER OF AUDITORS]
To: Calyon as Facility Agent
For and on behalf of the Finance Parties (each as defined in the Facilities
Agreement referred to below)
Dear Sirs,
This certificate (this "CERTIFICATE") relates to a facilities agreement
dated 7 December 2005 between, AGZ Holding (the "OBLIGORS"), the banks and
financial institutions named in that agreement as lenders and Calyon as
Facility Agent and Security Agent (as from time to time amended, the
"FACILITIES AGREEMENT"). Terms defined in the Facilities Agreement shall,
unless otherwise defined in this Certificate, have the same meanings when
used in this Certificate.
In accordance with clause 19.10(d)(ii) of the Credit Agreement, we hereby
confirm that as at the date on which the Annual Accounts for the financial
year ended [__________] were prepared, the Parent was in compliance with
the financial covenants contained in clause 19.11 (Financial Covenant -
Leverage Ratio) of the Credit Agreement.
Leverage:
We confirm that:
(i) as at [__________], Total Net Debt was [__________]; and
(ii) for the financial year ended [__________], EBITDA was [__________].
Therefore, as at [__________], the ratio of Total Net Debt to EBITDA was
[__________].
-------------------------------------
[Auditors]
104
SCHEDULE 8
FORM OF EFFECTIVE GLOBAL RATE LETTER
[HEADED NOTE PAPER OF CALYON]
7 DECEMBER 2005
AGZ Holding
[INSERT ADDRESS]
Dear Sirs,
SENIOR FACILITIES AGREEMENT DATED 7 DECEMBER 2005 BETWEEN AMONG OTHERS AGZ
HOLDING AS PARENT, CALYON AS ARRANGER, UNDERWRITER, FACILITY AGENT AND SECURITY
AGENT AND THE LENDERS NAMED THEREIN PURSUANT TO WHICH THE LENDERS AGREED TO MAKE
AVAILABLE TO THE BORROWERS EUR 380,000,000 IN TERM AND WORKING CAPITAL CREDIT
FACILITIES (THE "FACILITIES") TO THE BORROWERS (THE "FACILITIES AGREEMENT").
Unless otherwise defined in this letter, words and expressions defined in the
Facilities Agreement have the same meanings when used in this letter.
Pursuant to the terms of clause 7.8 (Effective global rate) of the Facilities
Agreement, it was agreed that the effective global rate (taux effectif global)
of the Facilities would be notified to the Parent by delivery of a separate
letter from the Facility Agent (acting for itself and on behalf of the other
Lenders) on or before the date of the Facilities Agreement.
This letter constitutes the separate letter referred to at clause 7.8 of the
Facilities Agreement and constitutes an integral part of the Facilities
Agreement.
We wish to draw your attention to the fact that, taking into account the nature
of the provisions of the Facilities Agreement, and in particular the variability
of the interest rate and the ability that you have to choose the length of
Interest Periods, it is not possible to determine the exact effective global
rate of the Facilities and we are asking you to acknowledge this fact by signing
this letter.
However, for the purposes of articles L.313-1 to L.313-6 of the French Consumer
Code (Code de la Consommation), we have calculated, by way of example, the
effective global rate applicable to the Facilities on the basis of: (i) the
making available of the entirety of the Facilities on the date of the Facilities
Agreement and (ii) the following factors as at 7 December 2005:
- 3 months EURIBOR is [__] per cent. per annum; and
- the arrangement fee and commitment fee provided for in the Facility
Agreement and the estimated legal fees which relate to the transaction
amount to the sums set out in a separate letter which was addressed to
you today.
105
In application of the foregoing:
(i) the effective global rate for the Term Facility is [__] per cent. per
annum, the rate for this period being [__] per cent. and the period being
of 1 month duration;
(ii) the effective global rate for the revolving facility is [__] per cent. per
annum, the rate for this period being [__] per cent. and the period being
of 1 month duration.
Please acknowledge receipt of this letter by counter-signing it where indicated
below.
Yours faithfully,
The Facility Agent
CALYON
(acting for itself and on behalf of the other Lenders)
-------------------------------------
Name:
-------------------------------
The Parent
AGZ HOLDING
-------------------------------------
Name:
-------------------------------
106
SCHEDULE 9
PART 1 - DISTRIBUTION COMPANIES
NAME TYPE OF COMPANY NUMBER
---- --------------- ------
Wogegal ("WOGEGAL")* Societe anonyme 000 000 000
Gaz Est Distribution
("GAZ EST DISTRIBUTION")* Societe anonyme 421 283 615
Nord GPL ("NORD GPL")*/** Societe anonyme 422 265 504
Aquitaine-Pyrenees Gaz
("MIDI-PYRENEES GAZ")* Societe anonyme 410 968 770
Rhone Mediterranee Gaz
- RMG ("RMG")* Societe anonyme 000 000 000
GIE Floregaz ("FLOREGAZ") Groupement d'interets economiques 421 385 881
Engas ("ENGAS") Societe de la Principaute d'Andorre
* Material Company
** Nord GPL will be merged into Gaz Est Distribution
107
PART 2 - STORAGE AND LOGISTICS COMPANIES
NAME TYPE OF COMPANY NUMBER
---- --------------- ------
Geovexin ("GEOVEXIN") Societe anonyme 304 350 887
Societe Bearnaise des Gaz
Liquefies ("SOBEGAL") Societe anonyme 095 880 894
Geogaz Xxxxxx ("GEOGAZ")* Societe anonyme 703 002 535
Societe des Gaz Liquefies
de Normandie ("NORGAL")* Groupement d'interets economiques 777 344 623
Societe en participation Not
de Queven ("SP QUEVEN") Societe en participation applicable
Compagnie Bordelaise des
Gaz Liquides ("COBOGAL") Societe anonyme 456 201 011
Rhone Gaz ("RHONE GAZ") Societe anonyme 969 507 235
Societe Industrielle des
Gaz de Petrole de l'Ouest Societe a responsabilite limitee 000 000 000
("SIGAP OUEST")
XXX Xxxxxx ("XXXXXX")* Groupement d'interets economiques 438 640 914
* Material Company
108
SCHEDULE 10
PART 1 - SUPPLY AGREEMENTS
(a) The supply agreement dated 27 March 2001, as amended on 29 March 2002, 1
April 2002, 1 July 2002, 6 December 2002, 30 May 2003, 29 May 2004, 30 May
2005 and from time to time, between Total Gaz SNC (which has been
substituted to Elf Antar France) and the Parent for the supply by Total Gaz
SNC to the Parent of butane and propane (the "PRINCIPAL SUPPLY AGREEMENT"),
together with each document that is governed by, or entered into pursuant
to that supply agreement.
(b) The supply agreement dated 2 April 2001, between the Parent and Antargaz,
as amended on 1 April 2002, 1 July 2004, 1 July 2005 and from time to time,
for the supply by the Parent to Antargaz of butane and propane.
(c) The letter dated 27 March 2001 from the Parent to Elf Antar France in the
agreed form relating to certain circumstances in which the Parent may
transfer the benefit of the Principal Supply Agreement to Antargaz.
109
PART 2 - OTHER MATERIAL CONTRACTS
1. NORGAL
The contract governing the Groupement d'Interets Economiques Norgal and the
allocation of payments to and charges to the parties to the Groupement d'
Interets Economiques Norgal; and
2. GEOGAZ
The agreement governing the invoicing by Geogaz to its shareholders of
payments calculated on the basis of the volume made available to each of
them and on their traffic accounted for according to the different means of
loading and unloading by applying fixed tariffs decided upon by the Conseil
d' Administration of Geogaz.
3. GROUPEMENT XXXXXX
The contract governing Groupement Xxxxxx, the internal regulation
(reglement interieur) of Groupement Xxxxxx and the operating rules (regles
d'exploitation) relating to Groupement Xxxxxx (each as amended from time to
time).
110
SCHEDULE 11
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Facility Agent shall calculate, as a percentage rate, a
rate (the "ADDITIONAL COST RATE") for each Lender, in accordance with the
paragraphs set out below. The Mandatory Cost will be calculated by the
Facility Agent as a weighted average of the Lenders' Additional Cost Rates
(weighted in proportion to the percentage participation of each Lender in
the relevant Advance) and will be expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from a Lending Office in a
Participating Member State will be the percentage notified by that Lender
to the Facility Agent. This percentage will be certified by that Lender in
its notice to the Facility Agent to be its reasonable determination of the
cost (expressed as a percentage of that Lender's participation in all
Advances made from that Lending Office) of complying with the minimum
reserve requirements of the European Central Bank in respect of loans made
from that Lending Office.
4. The Additional Cost Rate for any Lender lending from a Lending Office in
the United Kingdom will be calculated by the Facility Agent as follows:
E x 0.01
-------- per cent. per annum.
300
Where:
E is designed to compensate Lenders for amounts payable under the Fees
Rules and is calculated by the Facility Agent as being the average of
the most recent rates of charge supplied by the Reference Banks to the
Facility Agent pursuant to paragraph 6 below and expressed in pounds
per GBP 1,000,000.
5. For the purposes of this Schedule:
(a) "FEES RULES" means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force
from time to time in respect of the payment of fees for the acceptance
of deposits;
(b) "FEE TARIFFS" means the fee tariffs specified in the Fees Rules under
the activity group A.1 Deposit acceptors (ignoring any minimum fee or
zero rated fee required pursuant to the Fees Rules but taking into
account any applicable discount rate); and
(c) "TARIFF BASE" has the meaning given to it in, and will be calculated
in accordance with, the Fees Rules.
6. If requested by the Facility Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority, supply
to the Facility Agent, the rate of charge payable by that Reference Bank to
the Financial Services Authority pursuant to the Fees Rules in respect of
the relevant financial year of the Financial Services Authority (calculated
for this purpose by that Reference Bank as being the average of the Fee
Tariffs applicable to that Reference Bank for that financial year) and
expressed in pounds per GBP 1,000,000 of the Tariff Base of that Reference
Bank.
111
7. Each Lender shall supply any information required by the Facility Agent for
the purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information on
or prior to the date on which it becomes a Lender:
(a) the jurisdiction of its Lending Office; and
(b) any other information that the Facility Agent may reasonably require
for such purpose.
Each Lender shall promptly notify the Facility Agent of any change to the
information provided by it pursuant to this paragraph.
8. The rates of charge of each Reference Bank for the purpose of E above shall
be determined by the Facility Agent based upon the information supplied to
it pursuant to paragraphs 6 above.
9. The Facility Agent shall have no liability to any person if such
determination results in an Additional Cost Rate which over or under
compensates any Lender and shall be entitled to assume that the information
provided by any Lender or Reference Bank pursuant to paragraphs 3, 6 and 7
above is true and correct in all respects.
10. The Facility Agent shall distribute the additional amounts received as a
result of the Mandatory Cost to the Lenders on the basis of the Additional
Cost Rate for each Lender based on the information provided by each Lender
and each Reference Bank pursuant to paragraphs 3, 6 and 7 above.
11. Any determination by the Facility Agent pursuant to this Schedule in
relation to a formula, the Mandatory Cost, an Additional Cost Rate or any
amount payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all parties.
12. The Facility Agent may from time to time, after consultation with the
Parent and the Lenders, determine and notify to all parties any amendments
which are required to be made to this Schedule in order to comply with any
change in law, regulation or any requirements from time to time imposed by
the Bank of England, the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces all or
any of its functions) and any such determination shall, in the absence of
manifest error, be conclusive and binding on all parties.
112
SIGNATORIES TO THE FACILITIES AGREEMENT
PARENT
AGZ HOLDING
/s/ Francois Varagne
-------------------------------------
By: Francois Varagne
Directeur General Delegue
NOTICE DETAILS
Address: Xxxxxxxx Xxx Xxxxxxxxxxx
0, xxxxx xx Xxxxxxx
00000 Courbevoie
Facsimile: 33 1 41 88 73 13
Attention: Finance Director
ANTARGAZ
/s/ Francois Varagne
-------------------------------------
By: Francois Varagne
President-Directeur General
NOTICE DETAILS
Address: Xxxxxxxx Xxx Xxxxxxxxxxx
0, xxxxx xx Xxxxxxx
00000 Courbevoie
Facsimile: 33 1 41 88 73 13
Attention: Finance Director
ARRANGER, LENDER, FACILITY AGENT AND SECURITY AGENT
CALYON
/s/ Xxxxxxx Xxxxxx and Xxxxxx Del Xxx
-------------------------------------
By: Xxxxxxx Xxxxxx and Xxxxxx Del Xxx
NOTICE DETAILS
Address: Leverage and Financial Sponsors Group
0 xxxx xx Xxxxxxxxx Xxxx Xxxxxx
00000 Xxxxxxxxxx Xxxxx
Xxxxxx
Facsimile: x00 0 00 00 00 00 / 14 33
Attention: Xxxxxx Del Xxx / Xxxxxxxx Xxxx-Giraudon
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