Exhibit 10.8
7 DECEMBER 2005
ANTARGAZ
AS ASSIGNOR
CALYON
AS SECURITY AGENT
AND
THE REVOLVING CREDIT FACILITY LENDERS
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MASTER AGREEMENT FOR THE ASSIGNMENT
OF RECEIVABLES BY WAY OF SECURITY
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THIS MASTER AGREEMENT FOR THE ASSIGNMENT OF RECEIVABLES (the "AGREEMENT") is
made on 7 December 2005,
BETWEEN:
(1) ANTARGAZ, a French societe anonyme with registered number 572 126 043 (RCS
Nanterre), with registered share capital of E3,935,349 whose registered
office is located at ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ which is
represented by Francois Varagne or any other nominated individual who is
duly authorized to act for the purposes of this Agreement
(hereinafter referred to as the "ASSIGNOR");
(2) CALYON, a French societe anonyme, with registered number 304.187.701 (RCS
Nanterre), with registered share capital of E3,119,771,484 and with
registered office located at ▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇), represented by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Del ▇▇▇, duly
authorized to act for the purposes of this Agreement, acting in its
capacity as Security Agent (Agent des Suretes) in accordance with the
provisions of the Senior Facilities Agreement referred to below
(hereinafter referred to as the "SECURITY AGENT"),
AND
(3) the banks and similar financial institutions, the names and addresses of
which are set out in Schedule 1 hereto
(hereinafter together referred to as the "PRIMARY REVOLVING CREDIT FACILITY
LENDERS"),
together with any bank or financial institution which may subsequently
become a Revolving Lender under the Senior Facilities Agreement in
accordance with Clause 26 of the Senior Facilities Agreement.
(hereinafter together with the Senior Revolving Credit Facility Lenders
referred to as the "REVOLVING CREDIT FACILITY LENDERS"),
WHEREAS:
(A) Pursuant to an English language facilities agreement (Contrat de credits)
dated 7 December 2005 (as amended and restated and hereinafter referred to
as the "SENIOR FACILITIES AGREEMENT") between among others (i) AGZ Holding
as Parent, (ii) the companies listed in the Senior Facilities Agreement as
Borrowers and/or Guarantors, (iii) the Primary Revolving Credit Facility
Lenders and, (iv) Calyon as a Facility Agent (Agent) and Security Agent
(Agent des Suretes) the Primary Revolving Credit Facility Lenders have
agreed to make available to the Assignor and certain companies in its group
a Revolving Facility (Credit Renouvelable) of a maximum amount of up to
E50,000,000 (fifty million euros).
(B) The Assignor is a party to the Senior Facilities Agreement as borrower and
guarantor under the Revolving Facility.
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(C) It was agreed pursuant to the Senior Facilities Agreement that the
performance of the Assignor's obligations as Borrower under the Revolving
Facility will be guaranteed by the assignment to the Beneficiaries (as
defined hereunder) of all receivables within its client portfolio, in
accordance with the conditions of articles L.313-23 to L.313-34 of the
French Monetary and Financial Code and pursuant to the terms hereto.
IT IS AGREED AS FOLLOWS
1. DEFINITIONS
Capitalized terms used in this Agreement and not otherwise defined herein
shall have the meaning given to them in the Senior Facilities Agreement.
In this Agreement:
"ASSIGNED DEBTORS" means any person to whom the Assignor grants a
receivable, involved in an assignment in accordance with the terms hereto;
"ASSIGNED RECEIVABLES" means Receivables which are assigned by the Assignor
in accordance with the terms hereto;
"ASSIGNMENT FORM" means all assignment forms for the assignment of
receivables executed by the Assignor for the benefit of the Beneficiaries
under the provisions of this Agreement;
"BENEFICIARIES" means the Revolving Credit Facility Lenders and each of
their successors and assignees;
"BUSINESS DAY" has the meaning given to it in the Senior Facilities
Agreement;
"COMMERCIAL RECEIVABLES" means the "Receivables" (as defined in the Senior
Facilities Agreement) and excludes all Intercompany Receivables;
"CONCESSION AGREEMENTS" means any agreement entered into from time to time
between Antargaz and its commercial subsidiaries;
"DRAWDOWN" means any "Revolving Advance" (as defined in the Senior
Facilities Agreement) made available to the Assignor;
"DRAWDOWN REQUEST" has the meaning given to it in the Senior Facilities
Agreement for the purposes of making a drawdown facility available to the
Assignor;
"EVENT OF ENFORCEMENT" means all events referred to at Paragraph 20.2 of
the Senior Facilities Agreement;
"EVENT OF DEFAULT" has the meaning given to it in the Senior Facilities
Agreement;
"INTERCOMPANY RECEIVABLES" means, at any time, all receivables granted by
the Assignor to
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any members of its group ("Group Company") arising from any loan made by
the Assignor to any members of this group;
"DAILLY LAW" means articles L.313-23 et seq. of the French Monetary and
Financial Code (Code Monetaire et Financier)
"POTENTIAL EVENT OF DEFAULT" has the meaning given to it in the Senior
Facilities Agreement;
"RECEIVABLES" means the Commercial Receivables and the Intercompany
receivables;
"SECURED OBLIGATIONS" means the payment and repayment obligations
contracted by the Assignor relating to sums which are owing or will be
owing to the Beneficiaries in its capacity as Revolving Credit Borrower for
a principal amount, plus interest, late payment interest, any deferred and
incidental interests, calculated pursuant to the terms and conditions of
the Senior Facilities Agreement;
"SECURITY PERIOD" means the period beginning on the date of signature of
this Agreement and ending on the date on which all of the Secured
Obligations have been discharged in full to the satisfaction of the
Security Agent and on which the Beneficiaries will have no continuing
obligation to make available any Revolving Facility in accordance with the
Senior Facilities Agreement;
"UNDERLYING AGREEMENTS" means any agreement entered into from time to time
between the Assignor and the Assigned Debtors (including the Concession
Contracts) from which the Receivables arise.
2. ASSIGNMENT OF RECEIVABLES
2.1 In order to guarantee the due performance and payment to the Beneficiaries
of the Secured Obligations owing by it, the Assignor agrees to assign, in
accordance with the provisions of the Dailly Law and the provisions of this
Agreement, all Receivables.
Each Beneficiary will be beneficiary of assignments of Receivables under
the present Agreement to an extent proportional to its participation in the
Revolving Facility.
2.2 The assignment of Receivables referred to in clause 2.1 above shall be
carried out in accordance with paragraphs 2.3 and 2.4 by the delivery to
the Security Agent of an Assignment Form which shall:
(a) include all notations required for the purpose of creating an
assignment under the Dailly Law and the laws and regulations in force;
(b) without prejudice to clause (a) above, and with respect to Assignment
Forms for assignment of Commercial Receivables, appear in the form set
out in Schedule 2A to this Agreement and contain a list, containing
the information referred to at Schedule 3 hereto, which may be
detailed on electronic files (floppy disc or CD Rom);
(c) without prejudice to clause (a) above, and with respect to Assignment
Form for assignment of Intercompany Receivables, appear in the forms
set out in Schedule 2B
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of this Agreement;
(d) be signed by the legal representative or a duly appointed
representative of the Assignor; and
(e) designate the Beneficiaries as beneficiaries of the assignment, it
being specified that the Security Agent must provide the Assignor
within a reasonable time period with all information relating to any
changes to the identity of the Revolving Credit Facility Lenders under
the Revolving Facility.
2.3 Throughout the period of this Agreement:
(a) each time that it sends a Drawdown Request under the Revolving
Facility; and
(b) on the first day of each calendar month;
the Assignor shall deliver to the Security Agent an Assignment Form under which
it assigns all the Commercial Receivables in so far as a drawdown pursuant to
the Revolving Facility is under way.
2.4 The Assignor shall deliver to the Security Agent throughout the period of
this agreement:
(a) on each occasion that a new Underlying Agreement creates one or more
Intercompany Receivables, entered into with one or more members of the
Group, an Assignment Form relating to the relevant Intercompany
Receivable(s); and
(b) at the same time as the Assignor sends any Drawdown Request and on the
first Business Day of each calendar month, an Assignment Form relating
to all of the new Intercompany Receivables of the Assignor, which at
the date of delivery of the relevant Assignment Form have not already
been assigned within the framework of this Agreement.
2.5 The Security Agent reserves the right to refuse any Assignment Form which
does not reasonably appear to comply with the provisions of this clause 2.
2.6 Any delivery of an Assignment Form shall be construed as the legal
transfer, by way of security interest, to the Beneficiaries of the Assigned
Receivables identified on the relevant Assignment Form from the date set
out thereon by the Security Agent including all principal, interest and
related amounts of the Assigned Receivables identified on the relevant
Assignment Form, as well of all security and guarantees, including
retention of title clauses, relating to such Assigned Receivables.
2.7 Any acceptance by the Security Agent of an Assignment Form will result in
the automatic renunciation of all Beneficiaries benefiting from the
assignment resulting from the delivery of the previous Assignment Form
relating only to Assigned Receivables, also referred to in this subsequent
Assignment Form.
3 ASSIGNOR'S MANDATE
3.1 The Beneficiaries appoint the Assignor as agent to receive and recover the
relevant Assigned Receivables. The Assignor recognizes as a consequence of
such
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appointment that any payment, even partial, received from an Assigned
Debtor, in any form whatsoever, as an Assigned Receivable, is only received
by the Assignor as agent for the Beneficiaries and that amounts so received
or recovered are the property of the Beneficiaries. The Assignor therefore
undertakes to deliver immediately to the Security Agent on the occurrence
of an event of default and at its first request, the payment instruments or
the sums it will have so received, providing the Security Agent with all
information enabling it to identify the Receivable(s) to which the relevant
payments relate.
3.2 The mandate established by this clause 3 shall be fully revoked by the
Security Agent sending to one or more Assigned Debtors a notice or request
for acceptance pursuant to the terms of clause 4 (Notice- Acceptance)
below.
4. NOTICE - ACCEPTANCE
4.1 The Security Agent shall be entitled, at any time following the occurrence
of an Event of Default and upon receipt of instructions from the Majority
Lenders (Majorite des Preteurs) to give notice to one or several of the
Assigned Debtors of the assignment of receivables in accordance with this
Agreement and in conformity with the Dailly Law.
4.2 The Security Agent may, upon occurrence of an Event of Enforcement, request
that one or more of the Assigned Debtors accept the assignment of
Receivables arising under this Agreement in accordance with the Dailly Law.
5. APPLICATION OF PROCEEDS FROM ASSIGNED RECEIVABLES
Any sum received by the Security Agent under the Assigned Receivables shall
be applied towards payment and repayment of amounts due and payable under
the Secured Obligations in accordance with the conditions of the Senior
Facilities Agreement.
Any sum received by the Security Agent under the Assigned Receivables which
exceeds the sums due under the Secured Obligations will be repaid to the
Assignor by the Security Agent.
6 REPRESENTATIONS AND WARRANTIES OF ASSIGNOR
The Assignor represents and warrants to the Beneficiaries and to the
Security Agent throughout the period of this Agreement:
(a) that it is a French societe anonyme validly incorporated under the
provisions of French law;
(b) that the execution of this Agreement has been validly authorized by
the competent bodies of the Assignor;
(c) that this Agreement and each of the Assignment Forms create or will
create valid legal and compulsory obligations for the Assignor
enforcable in accordance with their terms, subject to Reservations;
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(d) the execution of this Agreement and the Assignment Forms by it do not
require the approval, authorization or consent of any authorities or
bodies whatsoever; and
(e) the Receivables have not been assigned, delegated, charged or pledged
to the benefit of anyone other than the beneficiaries.
7. UNDERTAKINGS OF ASSIGNOR
Throughout the Security Period, the Assignor undertakes to the
Beneficiaries and the Security Agent:
(a) not to assign, create, incur or permit to subsist any pledge, charge,
security or encumbrance of any sort over the Receivables other than
for the benefit of the Beneficiaries;
(b) not to modify or restrict the object or the rights relating to
Assigned Receivables or the rights of the Beneficiaries under the
Assigned Receivables in relation to the Assigned Debtors, other than
that which concerns the grant of deliveries, rebates, refunds, and
delays in agreed payments within the normal framework of its
activities and in conformity with its normal practices and without
prejudice to the ability of the Assignor to compromise or negotiate
the erroneous Assigned Receivables or those which are subject to a
good faith dispute;
(c) not to exercise or pursue at any time, any claim for compensation or
any counterclaim on the Assigned Receivables;
(d) at all times after the occurrence of a Potential Event of Default or
an Event of Default, permit the Security Agent to proceed at the
expense of the Assignor by means of an advance notice and during the
opening hours of the Assignor's offices, with all verifications
provided, in order to regulate the existence, nature, ownership,
amount and date of payment of the Assigned Receivables and to regulate
the Assignor's compliance with all of its obligations under this
Agreement; and
(e) to take any action, carry out any formalities, and do anything at its
own expense which the Security Agent may reasonably request in the
interests of protecting the rights of the Beneficiaries under this
Agreement or the Assignment Forms.
8. OBLIGATIONS OF ASSIGNOR UNDER THE UNDERLYING AGREEMENTS
The Assignor and the Beneficiaries expressly agree that:
(a) in accordance with the provisions of the Dailly Law, the Assignor will
remain jointly and severally liable for the payment of the Assigned
Receivables by the Assigned Debtors;
(b) The exercise by the Security Agent and/or the Beneficiaries of any
right, or privilege under this Agreement shall not operate as a waiver
of any right or obligations of the Assignor under the Underlying
Agreements; and
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(c) Except in the case of gross or deliberate misconduct, neither the
Security Agent nor any of the Beneficiaries shall be responsible under
the Underlying Agreements and, neither the Security Agent nor any of
the Beneficiaries shall be obliged to exercise any commitment, or
obligation of the Assignor under the Underlying Agreements, or to take
any action to recover any amounts.
9. NOTICES
Any notice or other communication to be served under or in connection with
this Agreement will conform with the conditions of Clause 24 of the Senior
Facilities Agreement and will be sent to the addresses indicated under the
signature blocks of each party's representative under this Agreement or at
any other address which the party concerned has notified to the other
parties at least five (5) Business Days in advance of such notice in
accordance with this clause.
10. DURATION
This Agreement shall remain in full force and effect throughout the
Security Period.
11. MISCELLANEOUS - EFFECTS OF CONCLUSION OF AGREEMENT
11.1 The Beneficiaries grant authority to the Security Agent having the option
of delegation, to receive, date and safeguard the original copies of each
Assignment Form, and more generally, to take all steps necessary to protect
and exercise the rights of the Beneficiaries under this Agreement and the
Assignment Forms.
11.2 This Agreement does not exclude or limit in any way the other rights of the
Security Agent and the Beneficiaries and does not affect the nature or the
extent of the liabilities which have been or which may exist between the
Assignor and the Security Agent and Beneficiaries.
11.3 In the event of a transfer by novation of all or part of their rights and
obligations by the Beneficiaries under the Senior Facilities Agreement, the
Beneficiaries expressly reserve (with the express consent of all the
parties hereto) the rights, privileges, powers and claims under which they
benefit by virtue of this Agreement in favour of their assignees, in
accordance with the provisions of articles 1278 et seq. of the French Civil
Code.
11.4 Where any clause of this Agreement is or becomes illegal, invalid or
unenforceable it is agreed that the other provisions of this Agreement
shall remain legal, valid and enforceable against the parties to this
Agreement independently of the illegal, invalid or unenforceable clauses.
12. APPLICABLE LAW AND JURISDICTION
12.1 This Agreement shall be governed by and construed in all respects in
accordance with French law.
12.2 Any dispute arising out of or in connection with this Agreement or an
Assignment Form shall be submitted to the exclusive jurisdiction of the
Commercial Court of Paris
(Tribunal de Commerce de Paris).
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(Tribunal de Commerce de Paris).
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Signed on 7 December 2005, in Paris, in (3) original copies.
Assignor Security Agent
ANTARGAZ CALYON
By: By:
--------------------------------- ------------------------------------
Name: Francois Varagne or any person Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Del ▇▇▇
duly authorized Title: Head of Acquisition Finance
Title: Managing Director France and Associate Director
Address: Immeuble Les Renardieres Address: Leverage and Financial
▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Sponsors Group
92400 Courbevoie ▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Fax: ▇▇▇ ▇ ▇▇ ▇▇ ▇▇ ▇▇ Fax: ▇▇▇ ▇ ▇▇ ▇▇ ▇▇ ▇▇/14 33
For the attention of the Finance For the attention of ▇▇▇▇▇▇ Del ▇▇▇
Director /▇▇▇▇▇▇▇▇ ▇▇▇▇-Giraudon
Senior Revolving Credit Facility Lenders
CALYON
By:
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Del ▇▇▇
Title: Head of Acquisition Finance
France and Associate Director
Address: Leverage and Financial
Sponsors Group
▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Fax: ▇▇▇ ▇ ▇▇ ▇▇ ▇▇ ▇▇/14 33
For the attention of ▇▇▇▇▇▇ Del ▇▇▇ /
▇▇▇▇▇▇▇▇ ▇▇▇▇-Giraudon
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SCHEDULE 1
THE PRIMARY REVOLVING CREDIT FACILITY TERM LENDERS
CALYON, ▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇)
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SCHEDULE 2A
FORM OF ASSIGNMENT OF RECEIVABLES BY OF SECURITY UNDER ARTICLES L.313-23 TO
L. 313-34 OF THE FRENCH MONETARY AND FINANCIAL CODE
(INTERCOMPANY RECEIVABLES)
Assignor: ANTARGAZ
Assignees: The Revolving Credit Facility Lenders parties to an English language
facilities agreement dated 7 December 2005 (as amended and restated and
hereinafter referred to as the "SENIOR FACILITIES AGREEMENT") between among
others the Assignor as Borrower, Calyon as Facility Agent and Security Agent and
Calyon as Primary Revolving Credit Facility Lender:
- [________]
- [________]
Date: [________] (inserted by Calyon as Security Agent)
Assigned Debtor and Assigned Receivables: In accordance with article L.313-23
paragraph 3 of the French Monetary and Financial Code, the Assigned Receivables
are transferred trough a computer process which makes it possible to identify
them. A list allowing the individualization of the Assigned Receivables is
attached to the present Form.
MEAN BY WHICH THE NUMBER OF ASSIGNED GLOBAL AMOUNT OF THE
RECEIVABLES ARE ASSIGNED RECEIVABLES ASSIGNED RECEIVABLES
------------------------ ------------------ --------------------
[________] [________]
Or:
Assigned Debtor and Assigned Receivables: The Assigned Receivables are the
existing or future receivables held by ANTARGAZ against:
The company [________] as debtor of the Assignor pursuant to the Underlying
Agreement [________] dated [________] a copy of which is attached to the present
Form.
The present Form is governed by all the provisions of the master agreement for
the assignment of receivables dated December 7, 2005 between, among others (i)
the Assignor as Borrower and Assignor, (ii) Calyon as Facility Agent and
Security Agent and (iii) Calyon as Primary Revolving Credit Facility Lender, as
amended from time to time.
The present Form is endorsable to other licensed credit institutions.
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Signature and stamp of the representative of the Assignor
Signature and stamp of the representative of the Security Agent
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SCHEDULE 2B
FORM OF ASSIGNMENT OF RECEIVABLES BY OF SECURITY UNDER ARTICLES L.313-23 TO
L. 313-34 OF THE FRENCH MONETARY AND FINANCIAL CODE
(COMMERCIAL RECEIVABLES)
Assignor: ANTARGAZ
Assignees: The Revolving Credit Facility Lenders parties to an English language
facilities agreement dated 7 December 2005 (as amended and restated and
hereinafter referred to as the "SENIOR FACILITIES AGREEMENT") between among
others the Assignor as Borrower, Calyon as Facility Agent and Security Agent and
Calyon as Primary Revolving Credit Facility Lender:
- [________]
- [________]
Date: [________] (inserted by Calyon as Security Agent)
Assigned Debtor and Assigned Receivables: In accordance with article L.313-23
paragraph 3 of the French Monetary and Financial Code, the Assigned Receivables
are transferred trough a computer process which makes it possible to identify
them. A list allowing the individualization of the Assigned Receivables is
attached to the present Form.
MEAN BY WHICH THE NUMBER OF ASSIGNED GLOBAL AMOUNT OF THE
RECEIVABLES ARE ASSIGNED RECEIVABLES ASSIGNED RECEIVABLES
------------------------ ------------------ --------------------
[________] [________]
The present Form is governed by all the provisions of the master agreement for
the assignment of receivables dated December 7, 2005 between, among others (i)
the Assignor as Borrower and Assignor, (ii) Calyon as Facility Agent and
Security Agent and (iii) Calyon as Primary Revolving Credit Facility Lender, as
amended from time to time.
The present Form is endorsable to other licensed credit institutions.
Signature and stamp of the representative of the Assignor
Signature and stamp of the representative of the Security Agent
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SCHEDULE 3
Information relating to the Assigned Receivables
Each list on electronic file shall contain, for each Assigned Receivable, the
following mentions:
- name and address of the Assigned Debtor;
- amount of the Assigned Receivable (for the Receivable in other currency
than Euro, the currency, the amount of the currency and the estimated
exchange value);
- type of the relevant Underlying Agreement; and
- maturity date and place of payment of the Assigned Receivable.
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