DATED 16 MARCH 2011 FINANCIAL SECURITIES ACCOUNT PLEDGE AGREEMENT (Acte de Nantissement de Compte de Titres Financiers) Between ANTARGAZ as Pledgor NATIXIS as Security Agent THE FACILITY AGENT, THE SECURITY AGENT AND THE LENDERS as Beneficiaries and...
Exhibit 10.3
DATED 16 MARCH 2011
FINANCIAL SECURITIES ACCOUNT PLEDGE AGREEMENT
(Acte de Nantissement de Compte de Titres Financiers)
(Acte de Nantissement de Compte de Titres Financiers)
Between
ANTARGAZ
as Pledgor
as Pledgor
NATIXIS
as Security Agent
as Security Agent
THE FACILITY AGENT, THE SECURITY AGENT AND THE LENDERS
as Beneficiaries
as Beneficiaries
and
NATIXIS
as Bank Accounts Holder
as Bank Accounts Holder
INDEX
Page | ||||
1. INTERPRETATION |
4 | |||
1.1 DEFINITIONS |
4 | |||
1.2 CONSTRUCTION |
6 | |||
2. SECURITY AGENT |
7 | |||
3. PLEDGE |
7 | |||
3.1 PLEDGED ACCOUNTS |
7 | |||
3.2 REGISTRATION OF THE PLEDGE |
7 | |||
3.3 SHAREHOLDER INTEREST |
8 | |||
3.4 INCOME AND PROCEEDS |
8 | |||
3.5 INSTRUCTIONS |
9 | |||
4. PRESERVATION OF SECURITY |
9 | |||
4.1 CONTINUING SECURITY |
9 | |||
4.2 ADDITIONAL SECURITY |
9 | |||
4.3 SECURITY TRANSFER |
9 | |||
5. REPRESENTATIONS AND WARRANTIES |
9 | |||
5.1 REPRESENTATIONS AND WARRANTIES |
9 | |||
5.2 TIME FOR MAKING REPRESENTATIONS AND WARRANTIES |
10 | |||
6. UNDERTAKINGS |
10 | |||
6.1 DURATION |
10 | |||
6.2 NEGATIVE PLEDGE |
10 | |||
6.3 NO DISPOSAL |
11 | |||
6.4 MANAGEMENT OF PLEDGED ACCOUNTS |
11 | |||
6.5 INFORMATION |
11 | |||
7. LIABILITY TO PERFORM |
12 | |||
8. ENFORCEMENT |
12 | |||
9. APPLICATION OF PROCEEDS |
13 | |||
10. COVENANT TO RELEASE |
14 | |||
11. EXPENSES, INDEMNITIES AND TAXES |
14 | |||
12. CHANGES TO THE PARTIES |
14 | |||
13. SEVERABILITY |
14 | |||
14. NOTICES |
15 | |||
15. FRENCH LANGUAGE |
15 | |||
16. GOVERNING LAW AND JURISDICTION |
15 | |||
16.1 GOVERNING LAW |
15 | |||
16.2 JURISDICTION |
15 | |||
17. DURATION |
15 | |||
18. WAIVERS, REMEDIES CUMULATIVE |
15 | |||
SCHEDULE 1. FORM OF STATEMENT OF PLEDGE |
17 | |||
SCHEDULE 2. FORM OF FINANCIAL SECURITIES ACCOUNT — CONFIRMATION OF PLEDGE |
26 | |||
SCHEDULE 3. FORM OF BANK ACCOUNT CONFIRMATION OF PLEDGE |
28 | |||
SCHEDULE 4. LIST OF LENDERS AND COMMITMENTS |
29 | |||
SCHEDULE 5. FORM OF NOTICE |
30 |
2.
THIS AGREEMENT IS MADE BY AND BETWEEN:
1. | ANTARGAZ, a société anonyme, incorporated under the laws of France under registration number
572 126 043 RCS Nanterre, with registered capital of euro 3,935,349.00, and having its
registered office at Xxxxxxxx Xxx Xxxxxxxxxxx, 0 Xxxxx xx Xxxxxxx, 00000 Courbevoie, and
represented by a duly authorized signatory for the purpose of this Agreement, as Pledgor; |
2. | NATIXIS, a société anonyme, incorporated under the laws of France under registration number
542 044 524 RCS Paris, with registered capital of euro 4,653,020,308.80, and having its
registered office at 00, xxxxxx Xxxxxx Xxxxxx Xxxxxx 00000 Paris, and represented by duly
authorised signatories for the purpose of this Agreement, as Security Agent; |
3. | NATIXIS, (designated as above) and represented by duly authorised signatories for the purpose
of this Agreement, as Facility Agent; |
4. | The Lenders listed in Schedule 4 (List of Lenders and Commitments) of this Agreement,
duly represented by the Security Agent for the purpose of this Agreement; |
5. | NATIXIS, a société anonyme, incorporated under the laws of France under registration number
572 126 043 RCS Paris, with registered capital of euro 4,653,020,308.80, and having its
registered office at 00, xxxxxx Xxxxxx Xxxxxx Xxxxxx 00000 Paris and represented by duly
authorised signatories for the purpose of this Agreement, as Bank Accounts Holder. |
3.
WHEREAS:
(A) | Pursuant to a facilities agreement dated 16 March 2011 entered into between,
inter alios, AGZ
Holding and Antargaz as Borrowers, BNP Paribas, Caisse Régionale de Crédit Agricole Mutuel de
Paris et D’Ile De France, Crédit Lyonnais SA and Natixis as Mandated Lead Arrangers and
Bookrunners, the Mandated Lead Arrangers (as defined therein), the Arrangers (as defined
therein), the Lenders (as defined therein), and Natixis as Facility Agent and Security Agent
(the “Facilities Agreement”), the Lenders have agreed to make certain Facilities available to
the Borrowers. |
(B) | Pursuant to clause 15 (Security interest) and Schedule 2 (Security Documents) of the
Facilities Agreement, as a condition precedent to the Lenders making the Facilities available
to the Borrowers, the Obligors have accepted to grant to the Beneficiaries, as security for
the Secured Liabilities (as defined herein), a pledge over the Pledged Account upon the terms
and conditions of this Agreement and the Intercreditor Agreement. |
NOW, THEREFORE, IT HAS BEEN AGREED AS FOLLOWS:
1. | INTERPRETATION |
1.1 | Definitions |
In this Agreement, terms defined in the Facilities Agreement shall have the same meaning
when used in this Agreement, unless otherwise specified. Terms defined above have the same
meaning when used in this Agreement, and the following terms have the following meanings:
“Account Holders” means the Companies in their capacity as account holders (teneurs de
comptes) of the Financial Securities Accounts open in the name of the Pledgor in the
Companies’ books.
“Agreement” means this agreement for the pledge of the Pledged Accounts together with the
Schedules hereto, as supplemented or amended from time to time.
“Aquitaine Rhône Gaz” means a société anonyme à conseil d’administration, incorporated
under the laws of France under registration number 000 000 000 RCS Lyon, with registered
capital of euro 197,731.45, and having its registered office at 00 xxx Xxxxxx Xxxxx
Xxxxxxxx A 69320 Feyzin.
“Bank Accounts” means in relation to the Financial Securities Accounts, the bank accounts
(comptes bancaires spéciaux) open in the name of the Pledgor in the books of the Bank
Accounts Holder in accordance with article L.211-20 of the French Monetary and Financial
Code (Code monétaire et financier).
“Bank Accounts Holder” means Natixis, as designated above, in its capacity as holder
(teneur de comptes bancaires) of the Bank Accounts open in the name of the Pledgor in
Natixis’s books.
4.
“Beneficiaries” means (i) the Lenders, the Facility Agent and/or any of them, from time to
time party to each and any Finance Documents, as represented by the Security Agent and
(ii) the Security Agent itself.
“Companies” means Aquitaine Rhône Gaz and Gaz Energie Distribution.
“Discharge Date” means the earlier of (i) the date on which all the Secured Liabilities
have been irrevocably and unconditionally discharged in full, independently of any partial
or intermediate payment and (ii) the date on which the Pledge has been fully released in
accordance with the terms of this Agreement or the other Finance Documents.
“Event of Default” means an event specified as such in clause 18.1 (Events of Default) of
the Facilities Agreement.
“Facilities” has the meaning ascribed thereto in the Facilities Agreement.
“Facility Agent” has the meaning ascribed thereto in the Facilities Agreement.
“Finance Documents” has the meaning ascribed thereto in the Facilities Agreement.
“Financial Instruments” means all the financial instruments (excluding ten shares) held at
any time by the Pledgor in the issued share capital of each Company and any other
financial instrument which is a debt instrument issued by the Companies and held by the
Pledgor.
“Financial Securities Accounts” means the financial securities accounts (comptes de titres
financiers) within the meaning of article L.211-20 of the French Monetary and Financial
Code (Code monétaire et financier) open in the name of the Pledgor in the books of the
Companies as set out in the Statements of Pledge.
“Gaz Energie Distribution” means a société anonyme incorporated under the laws of France
under registration number 421 283 615 RCS Xxxxx, with registered capital of euro
348,965.52, and having its registered office at 000 Xxxxxxxxx x’Xxxxxxxxxxxx 00000 Xxxxx.
“Insolvency” means any proceeding referred to in clauses 18.1(f) to 18.1(h) of the
Facilities Agreement.
“Intercreditor Agreement” has the meaning ascribed thereto in the Facilities Agreement.
“Lenders” has the meaning ascribed thereto in the Facilities Agreement.
“Obligors” has the meaning ascribed thereto in the Facilities Agreement.
“Pledge” means the pledge (nantissement) created over the Pledged Accounts by virtue of
this Agreement, as security for the Secured Liabilities.
“Pledged Accounts” means the Financial Securities Accounts (“Comptes de Titres
Financiers”) together with the Bank Accounts.
“Pledgor” means ANTARGAZ, as designated above.
5.
“Secured Liabilities” means all present and future obligations and liabilities (whether
actual or contingent and whether owed jointly or severally) arising from obligations and
liabilities of Antargaz to the Lenders, the Facility Agent, the Security Agent (or any of
them) in its capacity as Borrower under or in connection with the Facilities and the
Finance
Documents (or any of them) (including, in each case, without limitation, under any
amendments, supplements or restatements of any of the Finance Documents or in relation to
any new or increased advances or utilisations); together with all costs, charges and
expenses incurred by any Beneficiary in connection with the protection, preservation or
enforcement of its respective rights (and/or in the case of the Security Agent, the rights
of the other Beneficiaries (as the case may be)) under the Finance Documents or any other
document evidencing or securing any such payment liabilities in favour of the
Beneficiaries, to the extent due under any such document and subject to the provisions of
the Facilities Agreement.
“Security Agent” means Natixis, as designated above, or any bank or financial institution
which becomes Security Agent under the Facilities Agreement.
“Security Period” means the period beginning on the date hereof and ending on the
Discharge Date.
“Shareholder Interest” means, in respect of the Pledgor and at any time until the expiry
of the Security Period, (a) any and all of the Financial Instruments of the Companies held
by the Pledgor on the date hereof; (b) all shares, other shareholder interest (titres
financiers) and other securities (valeurs mobilières) which may be substituted for or
added to the Financial Instruments, following or in connection with share exchanges,
regroupings, splits, free issues, subscriptions by way of cash or otherwise, in accordance
with the terms hereof and article L. 211-20 of the French Monetary and Financial Code
(Code monétaire et financier); and (c) all proceeds or income whether present or future,
actual or contingent, from time to time (including, without limitation, dividends,
interest and other distributions) (fruits et produits) attached or deriving from the
Financial Instruments or other securities referred to in paragraphs (b) and (c) above,
provided that the dividends paid in cash (dividendes en numéraire), interest and other
distributions thereon (fruits et produits) relating to the Financial Instruments or other
above mentioned shareholder interest (titres financiers) shall be credited to the Bank
Accounts in accordance with Clause 3.4 (Income and Proceeds) of this Agreement.
1.2 | Construction |
(a) | In this Agreement, unless the contrary intention appears, a reference to: |
(i) | “assets” or “regulation” shall be construed in accordance with
the Facilities Agreement; |
(ii) | a Clause or a Schedule is, unless otherwise specified, a
reference to a clause or a schedule to this Agreement; |
(iii) | a provision of a law is a reference to that provision as
amended or re-enacted; |
(iv) | a time of day is a reference to Paris time; |
(v) | words importing the plural shall include the singular and vice
versa; |
(vi) | any reference to a party to this Agreement or other person
includes, unless otherwise provided in this Agreement, such party’s or person’s
permitted successors, assignees, transferees or substitutes; |
(vii) | an agreement or document includes a reference to that
agreement or document as amended, novated or supplemented from time to time. |
6.
(b) | The index to and the headings in this Agreement are for convenience only
and are to be ignored in construing this Agreement. |
(c) | This Agreement is entered into with the benefit and subject to the burden
of the Intercreditor Agreement. |
(d) | The “Facility Agent” shall on or prior to the Discharge Date, be deemed to
be a reference to the “Facility Agent” (in the context of the rights and obligations
of the Lenders). |
2. | SECURITY AGENT |
The Pledgor hereby agrees that the Security Agent shall be the agent (mandataire) of the
Beneficiaries for the purposes of this Agreement, acting in such capacity in its name but
on behalf of the Beneficiaries.
3. | PLEDGE |
3.1 | Pledged Accounts |
As security for the full repayment, discharge and performance of the Secured Liabilities
and in guarantee of the obligations of the Obligors, the Pledgor irrevocably grants to the
Beneficiaries a first ranking Pledge over the Pledged Accounts to the credit of which its
Shareholder Interest has been credited, pursuant to article L. 211-20 of the French
Monetary and Financial Code (Code monétaire et financier).
3.2 | Registration of the Pledge |
Immediately upon signature of this Agreement and in relation to the Pledged Accounts, the
Pledgor shall, for each of the Pledged Accounts, execute in French a statement of first
ranking pledge related to the concerned Pledged Account (each, a “Statement of Pledge” and
together, the “Statements of Pledge”) (“déclarations de nantissement de compte de titres
financiers”) in the form of Schedule 1, transmit an executed copy of such
Statement of Pledge to the concerned Company as Account Holder of the concerned Financial
Securities Account and to the Bank Accounts Holder as account holder of the concerned Bank
Account and request:
A. | such Account Holder to (i) record in the concerned Company’s shareholder
register (“registre de mouvements de titres”) and the shareholders accounts registry
(“comptes d’actionnaires”) that the concerned Financial Securities Account is
pledged in favour of the Beneficiaries by virtue of such Statement of Pledge and
(ii) issue on the same date a certificate of confirmation of pledge related to such
Financial Securities Account (the “Financial Securities Account Confirmation of
Pledge”) (“attestation de nantissement de compte de titres financiers”) in the form
of Schedule 2; and |
B. | the Bank Accounts Holder (which the Bank Accounts Holder undertakes) to
(i) record that the concerned Bank Account is pledged in favour of the Beneficiaries
by virtue of such Statement of Pledge and (ii) issue on the same date a certificate
of confirmation of pledge related to such Bank Account (the “Bank Account
Confirmation of Pledge” (“attestation de nantissement de compte de fruits et
produits”) and together with the Financial Securities Account Confirmation of
Pledge, the “Confirmations of Pledge”) in the form of Schedule 3. |
7.
3.3 | Shareholder Interest |
Without prejudice to Clause 3.1 (Pledged Account) and subject to the provisions of
Clause 3.4 (Income and Proceeds) herein:
(i) | any shareholder interest (titre financier) for any reason
whatsoever substituted for, or added to, the Shareholder Interest of the
Pledgor, together with any and all distributions, interest and proceeds (fruits
et produits) resulting therefrom in accordance with article L. 211-20 of the
French Monetary and Financial Code (Code monétaire et financier), and |
(ii) | more generally, any shares or other shareholder interests
(titres financiers) attributed to, and any additional shares or other
shareholder interests (titres financiers) acquired by the Pledgor and
constituting ownership interests in the Companies or any legal entity resulting
from the transformation or merger of the Companies or any similar operation, |
shall automatically be deemed the Shareholder Interest of the Pledgor for the purposes of
this Agreement and shall be promptly credited to the Pledged Accounts, without any such
operation constituting in any manner a novation of the rights and security granted to the
Beneficiaries hereunder.
3.4 | Income and Proceeds |
(a) | In accordance with article L.211-20 of the French Monetary and Financial
Code (Code monétaire et financier), any cash proceeds, income or distribution
included in the Shareholder Interest shall be recorded on the Bank Accounts. The Bank
Accounts shall be deemed to be an integral part of the Financial Securities Accounts
as from the date of execution of the Statements of Pledge. The Pledgor shall request,
at any time upon the Security Agent’s reasonable demand, from the Bank Accounts
Holder a certificate of pledge comprising the inventory of all sums standing to the
credit of the Bank Accounts as from the date of delivery of such certificate. |
(b) | Notwithstanding Clause 4.4(a) above, as long as no Event of Default has
occurred and has been notified to the Bank Accounts Holder (with copy to the Pledgor)
by the Security Agent in accordance with paragraph (c) below and is continuing, the
Beneficiaries authorise the Pledgor to freely use all the monies held on the Bank
Accounts. |
(c) | Upon the occurrence of an Event of Default which is notified to the Bank
Accounts Holder (with copy to the Pledgor) by a notice substantially in the form of
Schedule 5 and which is continuing, the Pledgor will cease to be entitled to
use the monies held on the Bank Accounts and any monies held on the Bank Accounts
shall, upon receipt of such notice by the Bank Accounts Holder, no longer be
available to the Pledgor, until such Event of Default has been remedied or waived.
Notwithstanding the foregoing provisions, the Pledgor is entitled to use the monies
held on the Bank Accounts exclusively in order to perform payments due under the
Secured Liabilities by using the due amounts directly on the bank accounts held by
the Security Agent. |
(d) | For the avoidance of doubt, as soon as an Event of Default is remedied or
waived, the Pledgor will be entitled to use all monies held on the Bank Accounts so
long as no other Event of Default occurs and is continuing, and the Security Agent
shall, upon the request of the Pledgor, promptly notify the Bank Accounts Holder of
the same. |
8.
3.5 | Instructions |
The Pledgor agrees that it shall instruct the Companies to pay all dividends paid in cash
(dividendes en numéraire), interest and other distributions thereon (fruits et produits)
relating to the Shareholder Interest on the Bank Accounts.
4. | PRESERVATION OF SECURITY |
4.1 | Continuing security |
The security (nantissement) constituted by the Pledge herein created shall extend to the
Discharge Date.
4.2 | Additional security |
This Pledge is in addition to and is not in any way prejudiced by any other security now
or hereafter held by the Beneficiaries in respect of the Secured Liabilities.
4.3 | Security transfer |
In the event of any assignment, transfer, novation or disposal of a part or all of its
rights and obligations by any Beneficiary under each and any of the Finance Documents to
which such Beneficiary is a party, such Beneficiary hereby expressly maintains, which the
Pledgor accepts, all its rights and privileges hereunder for the benefit of its successor,
in accordance with the terms of article 1278 of the French Civil Code (Code civil) so that
the Pledge herein created will secure the Secured Liabilities to the rateable benefit of
such successor, without further formalities.
5. | REPRESENTATIONS AND WARRANTIES |
5.1 | Representations and Warranties |
The Pledgor represents and warrants to the Beneficiaries that:
(a) | Due incorporation: it is a limited liability company, duly incorporated and
validly existing under the laws of the jurisdiction of its incorporation, with the
power to own its assets and carry on its business as it is being conducted; |
(b) | Corporate power and authority: it has the power to enter into and perform,
and has taken all necessary action to authorise the entry into, performance and
delivery by it of, this Agreement and the obligations contemplated herein; |
(c) | Insolvency: it is not in Insolvency, nor in a situation likely to result in
the same; |
(d) | Authorisations, approvals and consents: no authorization, approval,
consent, licence, notice or other requirement of public or corporate bodies of the
Pledgor or of the Companies is required in connection with the entry into,
performance, validity or enforceability of this Agreement and of the Statements of
Pledge, except any authorization that has been duly obtained and of which written
evidence has been provided to the Security Agent; |
9.
(e) | Companies’ approval: the Beneficiaries and any other transferee, assignee
or appointee of all or part of the Financial Instruments have been approved by the
relevant competent corporate body of each Company in accordance with article 11 of
the by-laws of Aquitaine Rhône Gaz and article 10 of the by-laws of Gaz Energie
Distribution respectively, so as is required for any of them to become a shareholder
of the Companies; |
(f) | Validity: this Agreement constitutes its legal, valid, binding and
enforceable obligation in accordance with its terms; |
(g) | Non-conflict: the execution of this Agreement and performance of the
Pledgor’s obligations hereunder and the performance by the Companies of the
transactions contemplated by this Agreement do not and will not breach, violate or
conflict with any agreement to which the Pledgor or the Companies is respectively a
party or which is binding upon their respective assets, by-laws, rules, regulations,
or any applicable law, regulation or official or judicial order or any authorization; |
(h) | Ownership: |
(i) | it has valid title and is the sole absolute legal owner of the
Shareholder Interest and the Pledged Accounts; and |
(ii) | all of the Financial Instruments and the Shareholder Interest
have been validly issued and fully paid, and are not subject to any option to
purchase or similar rights; |
(i) | Security Interests: the Pledged Accounts and the Shareholder Interest are
not subject to any Security Interest, and there are no similar restrictions which may
affect the rights of the Beneficiaries under this Agreement and the Pledge created
over the Pledged Accounts, or the Shareholder Interest; |
(j) | Access to share capital: on the date hereof, there are no securities giving
access directly or indirectly to the share capital of the Companies, and more
generally there exists no agreement by which the Companies has undertaken to issue
new Financial Securities or securities giving access directly or indirectly to its
share capital except as otherwise permitted under the Finance Documents. |
5.2 | Time for making representations and warranties |
The representations and warranties set out in Clause 5.1 (Representation and
warranties) above are made on the date hereof and are deemed to be repeated on the same
dates as the representations and warranties are repeated under the Facilities Agreement.
6. | UNDERTAKINGS |
6.1 | Duration |
The undertakings in this Clause 7 remain in force from the date of this Agreement until
the Discharge Date.
6.2 | Negative pledge |
Subject to the Facilities Agreement, the Pledgor hereby undertakes to the Beneficiaries
that it will not create or permit to subsist any Security Interest on the whole or any
part of the
Financial Instruments, the Shareholder Interest and/or the Pledged Accounts other than the
Pledge created pursuant to this Agreement and the Statements of Pledge.
10.
6.3 | No Disposal |
(a) | The Pledgor will not, either in a single transaction or in a series of
transactions, make a sale, transfer or other disposal (including by way of loan) of
all or any part of the Financial Instruments, the Shareholder Interest (subject to
its rights to dispose of the monies credited on the Bank Accounts as set forth in
Clause 3.4) or the Pledged Accounts, except as otherwise provided for in the
Finance Documents and in this Agreement. |
(b) | The Pledgor will refrain from debiting from the Financial Securities
Accounts any Shareholder Interest credited on the Financial Securities Accounts from
time to time, except as otherwise provided for in the Finance Documents and in this
Agreement. |
(c) | The Pledgor will not enter into or permit to subsist any option or other
arrangement whereby any person has the right (whether or not exercisable only on a
contingency) to require the Pledgor to sell or otherwise dispose of all or any part
of the Financial Instruments, the Shareholder Interest or the Pledged Accounts. |
6.4 | Management of Pledged Accounts |
(a) | The Pledgor will request the Account Holder and the Bank Accounts Holder
(and the Bank Accounts Holder undertakes accordingly) to credit to the Pledged
Accounts any Shareholder Interest attributed to or acquired by it in accordance with
Clauses 3.3 (Shareholder Interest) and 3.4 (Income and Proceeds)
above and the Pledgor will, and shall procure that the Account Holders and the Bank
Accounts Holder will, sign all documents and take all action (and the Bank Accounts
Holder undertakes accordingly) necessary to this effect. |
(b) | Except as otherwise provided under the terms of this Agreement, the Pledgor
will not (i) locate or permit to locate the Shareholder Interest received by it from
any person for whatever reason in an account other than the Pledged Accounts, (ii)
close or transfer the Pledged Accounts, nor (iii) appoint a new account holder other
than the Account Holders and the Bank Accounts Holder, unless such new account holder
has been approved by the Security Agent acting in accordance with the instructions of
the Beneficiaries and has agreed in writing to be bound by all the terms and
conditions of this Agreement, as Account Holder or Bank Accounts Holder, as the case
may be. |
6.5 | Information |
(a) | From the date of this Agreement and throughout the Security Period, the
Pledgor undertakes to promptly provide to the Security Agent all information relating
to the Pledged Accounts and the Shareholder Interest which the Security Agent may
from time to time reasonably require and to permit the Security Agent at any time, to
request from the Account Holders and the Bank Accounts Holder, from time to time, a
Confirmation of Pledge, which shall be furnished upon demand of the Security Agent
and the Pledgor will sign all documents and take all action necessary to the effect
of carrying out such request. |
(b) | Upon becoming aware thereof, the Pledgor will promptly inform the Security
Agent of any disputes relating to the Pledged Accounts and the Shareholder Interest. |
11.
7. | LIABILITY TO PERFORM |
It is expressly agreed that the Pledgor shall remain liable to observe and perform all of
the conditions and obligations assumed by it respectively in respect of its Shareholder
Interest and the Pledged Accounts, and the Beneficiaries and the Security Agent shall not
be under any obligation or liability by reason of, or arising out of, this Agreement
unless otherwise specified herein. The Beneficiaries and the Security Agent shall not be
required in any manner to perform or fulfil any obligation of the Pledgor in respect of
its Shareholder Interest and the Pledged Accounts, or to make any payment or to present or
file any claim or take any other action to collect or enforce the payment of any amount to
which it may have been or to which it may be entitled hereunder at any time or times.
8. | ENFORCEMENT |
Subject to the provisions of the Intercreditor Agreement, upon the occurrence of a payment
Event of Default or payment default with respect to a notification relating to any Event
of Default made in accordance with clause 18.2 (Acceleration) of the Facilities Agreement,
the Security Agent acting on behalf of the relevant Beneficiaries, shall be entitled to
exercise all rights, actions and privileges as granted by law to a secured creditor,
including but not limited to:
(a) | at its discretion and in accordance with the provisions of article
L.211-20, paragraph V of the French Monetary and Financial Code (Code Monétaire et
Financier): |
(i) | after a period of 8 (eight) days following the service of a
notification (mise en demeure) on the Pledgor (which may be served
simultaneously with the acceleration notice mentioned above), to request a
court order for the sale of the Shareholder Interest at public auction in
accordance with the provisions of article L.521-3(i) of the French Commercial
Code (Code de Commerce), |
(ii) | immediately following the service of a notification (mise en
demeure) on the Pledgor (which may be served simultaneously with the
acceleration notice mentioned above), to request a court order for the judicial
assignment of the Shareholder Interest to the Beneficiaries in accordance with
the provisions of article 2347 of the French Civil Code (Code civil), or |
(iii) | to become the owner of the Shareholder Interest immediately
following the service of a notification (mise en demeure) on the Pledgor (which
may be served simultaneously with the acceleration notice mentioned above) (the
“Transfer Date”) in satisfaction of the Secured Liabilities in accordance with
the provisions of article 2348 of the French Civil Code (Code civil), in which
case following such transfer of title: |
(1) | the value of the Shareholder Interest will be
estimated by an expert (the “Expert”) appointed in good faith by the
Security Agent and the Pledgor within five (5) calendar days following
the Transfer Date; |
(2) | if the parties fail to agree on the name of the
expert, the Expert shall be appointed by the Président of the Paris
Commercial Court (by way of summary judgment (référé) further to a motion
by the most diligent party) among leading auditors exercising activities
in France; |
12.
(3) | within thirty (30) days of the Expert’s acceptance
of the appraisal mission (such appraisal period to be extended once for a
maximum of ten (10) days at the request of the Expert), the Expert shall
establish a report in which shall be determined (a) the value of the
Shareholder Interest (at the relevant date of transfer of ownership of
the collateral) (the “Enforcement Value”) and (b) the detailed
calculations relating to such valuation (the “Report”); it being agreed
to such valuation shall, in the absence of a manifest error (“erreur
grossière”), be finally binding on the parties; the Report shall be
delivered to the Security Agent and the Pledgor; |
(4) | in the event of a manifest error (“erreur
grossière”) in the determination of the value of the Shareholder
Interest, such error being acknowledged by the President of the
commercial court of Paris (Président du Tribunal de Commerce de Paris), a
new Expert shall be appointed in accordance with the same terms and
conditions as referred to in paragraphs (1) and (2) above and perform the
appraisal mission in accordance with the same terms and conditions as
referred to in paragraph (3) above; |
(5) | the Pledgor hereby undertakes to execute any
document and do all such things that are required to carry out the
transfer of full ownership in the Shareholder Interest to the
Beneficiaries on the Transfer Date; |
(6) | notwithstanding the foregoing, the Security Agent
shall be entitled to resort at any time during the course of the
procedure set out in this paragraph (iii) to the proceedings mentioned in
paragraphs (i) and (ii) above, if it deems it necessary to protect the
Beneficiaries’ interests; |
(b) | immediately after serving a notification (mise en demeure) on the Pledgor
and the Bank Accounts Holder in accordance with the provisions of article L.211-20,
paragraph V of the French Monetary and Financial Code (Code monétaire et financier),
to retain full ownership in the sums credited to the Bank Accounts up to the amount
of the Secured Liabilities. |
9. | APPLICATION OF PROCEEDS |
The proceeds from the sale or the retention of the Shareholder Interest and/or the sums on
the Bank Accounts pursuant to the enforcement of this Pledge shall be applied to the
repayment of the Secured Liabilities, as set out and in the order and priority set forth
under the Intercreditor Agreement.
If the aggregate amount of the Enforcement Value and of all sums credited on the Bank
Accounts and collected by the Beneficiaries (represented by the Security Agent) in
accordance with paragraph 9(b) above is greater than the amount of the Secured Liabilities
which are due and payable, the Security Agent shall pay to the Pledgor the difference
between those two amounts in accordance with the provisions of article 2348, paragraph 3
of the French Civil Code (Code civil).
In any case, the Beneficiaries shall not be responsible for the value retained for the
enforcement of the Pledge.
13.
10. | COVENANT TO RELEASE |
On or, as soon as practicable, after the Discharge Date, the Security Agent on behalf of
the Beneficiaries shall, at the cost of the Pledgor, execute and do all such deeds, acts
and things as may be necessary to release and discharge in full the Pledgor from its
liability hereunder.
11. | EXPENSES, INDEMNITIES AND TAXES |
In accordance with, and subject to the provisions of, clause 14 (Fees, Expenses and Stamp
Duties) of the Facilities Agreement, all out of pocket costs and expenses (including
reasonable legal fees and expenses) together with any applicable value added tax or other
like Taxes incurred by the Beneficiaries or the Security Agent in connection with the
negotiation or execution of this Agreement will be for the account of the Pledgor.
12. | CHANGES TO THE PARTIES |
All the rights, privileges, powers, discretions and authorities of the Beneficiaries
hereunder will benefit their respective successors and assignees and all terms,
conditions, representations and warranties and undertakings of the Pledgor hereunder shall
oblige its respective successors and assignees in the same manner, it being agreed and
understood that:
(a) | the Pledgor shall not assign, transfer, novate or dispose of any of, or any
interest in its rights and/or obligations under this Agreement, and |
(b) | the Beneficiaries shall be entitled to assign, transfer, novate or dispose
of any of, or any interest in their rights and/or obligations hereunder to any
successor in accordance with the relevant provisions of the Finance Documents. |
The provisions of this Agreement and the rights arising therefrom shall remain in full
force and effect and benefit to any successors, transferees or assignees of a Beneficiary,
without any specific notice, registration or reiteration, in case, inter alia, of any
sale, merger, demerger, spin-off or assets contribution which a Beneficiary may decide to
proceed. It is expressly agreed that an asset contribution or a partial merger within the
meanings of articles L. 236-1 et sequitur of the French Commercial Code (Code de Commerce)
shall be deemed to be a transfer for the purpose of the present provision.
13. | SEVERABILITY |
If a provision of this Agreement is or becomes illegal, invalid or unenforceable in any
jurisdiction in respect of the Pledgor and/or the Account Holders and/or the Bank Accounts
Holder that shall not affect:
(a) | the validity or enforceability in that jurisdiction of any other provision
of this Agreement; or |
(b) | the validity or enforceability in other jurisdictions of that provision or
any other provision of this Agreement. |
In any case, if such illegality, invalidity or enforceability occurs, the parties shall
negotiate in good faith with a view to agree on the replacement of such provision by a
provision which is legal, valid and enforceable and which is to the extent applicable in
accordance with the
intents and purposes of this Agreement and which in its economic effect come as close as
practicable to the provision being replaced.
14.
14. | NOTICES |
Except as specifically provided otherwise in this Agreement, all notices or other
communications under or in connection with this Agreement shall be given to each party as
specified in clause 18 (Notices) of the Intercreditor Agreement.
15. | FRENCH LANGUAGE |
The Statements of Pledge executed by the Pledgor pursuant to Clause 3.2
(Registration of the Pledge) above shall be made in the French language and
accompanied by an English translation. The French language version of the Statements of
Pledge shall prevail over any English translation and shall be binding on the Pledgor.
16. | GOVERNING LAW AND JURISDICTION |
16.1 | Governing law |
This Agreement and the Statements of Pledge shall be governed by and construed in
accordance with French law.
16.2 | Jurisdiction |
For the benefit of the Beneficiaries, the Pledgor and the Bank Accounts Holder agree that
the courts of France have jurisdiction to settle any disputes in connection with this
Agreement and the Statements of Pledge, and accordingly submit to the jurisdiction of the
Commercial Court of Xxxxx (Xxxxxxxx xx Xxxxxxxx xx Xxxxx).
00. | DURATION |
The Pledge created pursuant to this Agreement shall remain in force until the Discharge
Date.
18. | WAIVERS, REMEDIES CUMULATIVE |
(a) | The rights of the Beneficiaries under this Agreement: |
(i) | may be exercised as often as necessary; |
(ii) | are cumulative and not exclusive of its rights under general
law; and |
(iii) | may be waived only in writing and specifically. |
(b) | Delay in exercising or non-exercise of any such right is not a waiver of
that right. |
15.
Made in Paris
On 16 March 2011
On 16 March 2011
In as many original copies as parties to this Agreement |
The Pledgor
ANTARGAZ
By: François Varagne
The Beneficiaries
NATIXIS
As Facility Agent and Security Agent
As Facility Agent and Security Agent
By: Xxxx-Xxxxxxxx Nani
|
By: Xxxxxx Xxxxxxx |
THE LENDERS
Represented by the Security Agent
Represented by the Security Agent
By: Xxxx-Xxxxxxxx Nani
|
By: Xxxxxx Xxxxxxx |
The Bank Accounts Holder
NATIXIS
By:
16.
TRANSLATION FOR INFORMATION PURPOSES ONLY
STATEMENT OF PLEDGE OVER FINANCIAL SECURITIES ACCOUNT
(subject to provisions of article L. 211-20 of the Monetary and Financial Code)
(subject to provisions of article L. 211-20 of the Monetary and Financial Code)
THE UNDERSIGNED:
ANTARGAZ, a société anonyme, incorporated under the laws of France under registration number 572
126 043 RCS Nanterre, with registered capital of euro 3,935,349.00, and having its registered
office at Xxxxxxxx Xxx Xxxxxxxxxxx, 0 Xxxxx xx Xxxxxxx, 00000 Courbevoie and represented by a duly
authorized signatory for the purpose hereof,
Hereinafter referred to as the “Pledgor”,
HEREBY PLEDGES:
(A) THE FOLLOWING FINANCIAL SECURITIES ACCOUNT:
Its special shareholder’s account number [ARG: 11 Quarter / GED: 1 Quarter],
Hereinafter referred to as the “Financial Securities Account”,
OPEN IN THE BOOKS OF:
[AQUITAINE RHONE GAZ, a société anonyme à conseil d’administration, incorporated under the laws of
France under registration number 000 000 000 RCS Lyon, with registered capital of euro 197,731.45,
and having its registered office at 13 rue Xxxxxx Xxxxx Bâtiment A 69320 Feyzin / GAZ ENERGIE
DISTRIBUTION, a société anonyme incorporated under the laws of France under registration number 421
283 615 RCS Xxxxx, with registered capital of euro 348,965.52, and having its registered office at
109 Boulevard d’Haussonville 54000 Xxxxx]
Hereinafter referred to as the “Account Holder”
or the “Company”,
IN WHICH IS CREDITED INITIALLY THE FOLLOWING SHAREHOLDER INTEREST:
Nomination, nature, | ||||||
Qty | form, nominal | Currency | Par value (each share) | |||
[ARG: 3,805 / GED: 22,888] |
Ordinary shares | Euro | € [ARG: 51.83 / GED: 15.24] |
AND
17.
(B) THE BANK ACCOUNT:
The bank account open in the name of the Pledgor, N° [ARG 30007 99999 3N019091001 88 / GED 30007
99999 3N019091002 85], deemed to be an integral part of the Financial Securities Account at the
date hereof pursuant to the provisions of article L. 211-20 of the French Monetary and Financial
Code,
Hereinafter referred to as the “Bank Account” and together with the Financial Securities Account,
the “Pledged Accounts”,
OPEN IN THE BOOKS OF:
NATIXIS, a société anonyme, incorporated under the laws of the Republic of France under
registration number 542 044 524 RCS Paris, with registered capital of euro 4,653,020,308.80, and
having its registered office at 00, xxxxxx Xxxxxx Xxxxxx Xxxxxx 00000 Paris,
Hereinafter referred to as the “Bank Accounts Holder”,
In which will be credited all dividends paid in cash (dividendes en numéraire), interest and other
distributions thereon (fruits et produits) which will be due to the Pledgor in relation to the
Shareholder Interest,
TO THE BENEFIT OF:
• | BANQUE PALATINE, a société anonyme à directoire incorporated under the laws of France under
registration number 542 104 245 RCS Paris,with registered capital of euro 538,802,680.00,
having its registered office at 00 xxx x’Xxxxx 00000 Xxxxx, acting as Lender; |
• | BARCLAYS BANK PLC, a company incorporated under the laws of England and Wales under
registration number 1026167, with registered capital of sterling 3,040,001,000, having its
registered office at 0 Xxxxxxxxx Xxxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx, acting as Lender; |
• | BANCO BILBAO VIZCAYA ARGENTARIA, a société anonyme, incorporated under the laws of the
Kingdom of Spainacting through its Paris Branch under registered number 349 358 887 RCS Paris,
with registered capital of euro 1,523,867,581.08, and having its registered office at 29,
Avenue de l’Xxxxx 00000 Xxxxx, Xxxxxx, acting as Lender; |
• | BNP PARIBAS, a société anonyme incorporated under the laws of the Republic of France under
registration number 662 042 449 RCS Paris, with registered capital of euro 2,397,320,312.00,
having its registered office at 00, xxxxxxxxx xxx Xxxxxxxx, 00000 Xxxxx, acting as Lender; |
• | BRED BANQUE POPULAIRE, a société anonyme coopérative de Banque Populaire incorporated under
the laws of France under registration number 552 091 795 RCS Paris,with registered capital of
euro 432,487,500.00, having its registered office at 00 xxxx xx xx Xxxxx 00000 Xxxxx, acting
as Lender; |
• | CAISSE REGIONALE DE CREDIT AGRICOLE MUTUEL DE PARIS ET D’ILE DE FRANCE, a société
coopérative, incorporated under the laws of France under registration number 775 665 615 RCS
Paris, a credit institution and brokerage insurance firm registered with the Register of the
Intermediaries in Insurances under number 07 008 015, and having its registered office at 00
xxxx xx xx Xxxxx, 00000 Xxxxx, acting as Lender; |
18.
• | CREDIT DU NORD, a société anonyme incorporated under the laws of France under registration
number 456 504 851 RCS Lille,with registered capital of euro 890,263,248.00, having its
registered office at 28 place Rihour 59000 Lille, acting as Lender; |
• | CREDIT LYONNAIS, a société anonyme incorporated under the laws of the Republic of France
under registration number 954 509 741 RCS Lyon, with registered capital of euro
1,847,860,375.00, having its registered office at 00, xxx xx xx Xxxxxxxxxx, 00000 Xxxx, acting
as Lender; |
• | BANQUE COMMERCIALE POUR LE MARCHE DE L’ENTREPRISE, a société anonyme à directoire et conseil
de surveillance, incorporated under the laws of France under registration number 378 398 911
RCS Brest, with registered capital of euro 330,000,000, having its registered office at 0
xxxxx Xxxxx Xxxxxx 00000 Xx Xxxxxx-Xxxxxxx Xxxxxx, acting as Lender; |
• | CREDIT SUISSE INTERNATIONAL, a company incorporated under the laws of England and Wales under
registration number 02500199, having its registered office at One Xxxxx Xxxxxx, Xxxxxx, XX X00
0XX, acting as Lender; |
• | HSBC FRANCE, a société anonyme, incorporated under the laws of France under registration
number 775 670 284 RCS Paris, with registered capital of euro 337,189,100, having its
registered office at 000, xxxxxx xxx Xxxxxx-Xxxxxxx, 00000 Xxxxx, Xxxxxx, acting as Lender; |
• | ING BELGIUM SA, SUCCURSALE EN FRANCE, incorporated under registration number 490 100 260,
having its main office at Coeur Défense, Tour A, Place de la Défense, 00-000 xxxxxx xx Xxxxxxx
xx Xxxxxx, 00000 Xxxxxxxxxx, Xxxxxx, a branch of ING Belgium SA/NV, with capital of euro
2,350,000,000, having its registered office at Xxxxxx 00, X-0000 Xxxxxxxx, registered with the
Brussels register under number 0403 200 393, acting as Lender; |
• | NATIXIS, a société anonyme incorporated under the laws of the Republic of France under
registration number 542 044 524 RCS Paris, with registered capital of euro 4,653,020,308.80,
having its registered office at 00, xxxxxx Xxxxxx Xxxxxx Xxxxxx 00000 Paris, acting as Lender; |
and their respective successors and assignees under a facilities agreement dated 16 March
2011 entered into between, inter alios, AGZ Holding and Antargaz as Borrowers, BNP Paribas,
Caisse Régionale de Crédit Agricole Mutuel de Paris et d’Ile De France, Crédit Lyonnais SA
and Natixis as Mandated Lead Arrangers and Bookrunners, the Mandated Lead Arrangers (as
defined in the Facilities Agreement), the Arrangers (as defined in the Facilities Agreement),
the Lenders, and Natixis as Facility Agent and Security Agent (the “Facilities Agreement”),
• | NATIXIS, a société anonyme, incorporated under the laws of the Republic of France under
registration number 542 044 524 RCS Paris, with registered capital of euro 4,653,020,308.80,
and having its registered office at 00, xxxxxx Xxxxxx Xxxxxx Xxxxxx 00000, as Security Agent,
and its successors and assignees in such capacity under the Facilities Agreement; and |
• | NATIXIS, a société anonyme, incorporated under the laws of the Republic of France under
registration number 542 044 524 RCS Paris, with registered capital of euro 4,653,020,308.80,
and having its registered office at 00, xxxxxx Xxxxxx Xxxxxx Xxxxxx 00000, as Facility Agent,
and its successors and assignees in such capacity under the Facilities Agreement. |
Hereinafter referred to as the “Beneficiaries”,
19.
AS SECURITY FOR PAYMENT OF THE FOLLOWING LIABILITIES:
All present and future obligations and liabilities (whether actual or contingent and whether owed
jointly or severally) of Antargaz to (a) the Lenders, the Facility Agent, the Security Agent (or
any of them), in its capacity as Borrower under the Finance Documents (or any of them) (including,
in each case, without limitation, under any amendments, supplements or restatements of any of the
Finance Documents or in relation to any new or increased advances or utilisations); together with
all costs, charges and expenses incurred by any Beneficiary in connection with the protection,
preservation or enforcement of its respective rights (and/or in the case of the Security Agent, the
rights of the other Beneficiaries (as the case may be)) under the Finance Documents or any other
document evidencing or securing any such payment liabilities in favour of the Beneficiaries, to the
extent due under any such document.
Secured amounts:
• | an aggregate principal amount of EUR 40,000,000 (forty million euros) plus interest, late
payment interest, fees, commissions and anything else of a similar nature, under the Revolving
Facility. |
Hereinafter referred to as the “Secured Liabilities”.
UNDER THE FOLLOWING TERMS AND CONDITIONS:
The Pledge is granted by the Pledgor in accordance with terms of (i) a financial securities account
pledge agreement dated 16 March 2011 (the “Agreement”) entered into between the Pledgor, the
Beneficiaries and the Bank Accounts Holder, constituting an integral part of this statement of
pledge and defining the terms and conditions under which the Pledged Accounts shall operate and the
Pledge shall be enforced and (ii) the Intercreditor Agreement.
A copy of this statement of pledge shall be notified to the Account Holder and the Bank Accounts
Holder on the date hereof, together with the Pledgor’s instruction to register this pledge in the
books held by the Account Holder and the Bank Accounts Holder. In particular, the Account Holder
shall register in the Company’s shareholder register (“registre de mouvements de titres”) and the
shareholders accounts registry (“comptes d’actionnaires”) the following:
“Affectation en nantissement aux termes d’une déclaration de nantissement de compte de titres
financiers en date du 16 mars 2011 signée par Antargaz en qualité de Constituant au profit de
l’Agent, de l’Agent des Sûretés et des Prêteurs au titre du Contrat de Crédits, étant précisé que
les droits de tout Bénéficiaire au titre du présent nantissement (en ce compris pour la réalisation
du nantissement) demeurent soumis aux stipulations de la Convention de Subordination (les termes
commençant par une majuscule ayant le sens qui leur est attribué dans la déclaration susvisée)”.
Capitalized terms used herein shall have the meaning ascribed to them under the Agreement.
This statement of pledge is governed by the laws of France. Any dispute relating to the validity,
interpretation and realisation of this statement shall be in the jurisdiction of the Paris
Commercial Court (Tribunal de Commerce de Paris).
Signed in Paris, on 16 March 2011
In one (1) original copy
In one (1) original copy
For the Pledgor
ANTARGAZ
ANTARGAZ
20.
Schedule 2.
FORM OF FINANCIAL SECURITIES ACCOUNT — CONFIRMATION OF PLEDGE
FORM OF FINANCIAL SECURITIES ACCOUNT — CONFIRMATION OF PLEDGE
To:
|
Natixis | |
in its capacity as Security Agent |
Dear Sirs,
Having knowledge of the Statement of Pledge over the Financial Securities Account (Déclaration de
nantissement de compte de titres financiers),
dated: 16 March 2011
signed by: ANTARGAZ
We the undersigned, [AQUITAINE RHONE GAZ, a société anonyme à conseil d’administration,
incorporated under the laws of France under registration number 000 000 000 RCS Lyon, with
registered capital of euro 197,731.45, and having its registered office at 13 rue Xxxxxx Xxxxx
Bâtiment A 69320 Feyzin / GAZ ENERGIE DISTRIBUTION, a société anonyme incorporated under the laws
of France under registration number 421 283 615 RCS Xxxxx, with registered capital of euro
348,965.52, and having its registered office at 109 Boulevard d’Haussonville 54000 Xxxxx] (the
“Company”), in our capacity as Account Holder,
1/ | hereby confirm the opening and constitution of a pledge over the financial securities
account, the references of which are the following: Financial Securities Account N°[ARG: 11
Quarter / GED: 1 Quarter] open in the name of the Pledgor as provided in the Statement of
Pledge; |
2/ | present the inventory of shareholder interest as attached hereto, held by the Pledgor in the
books of the Company; |
3/ | hereby confirm having knowledge of the mode of management of the Financial Securities Account
under the conditions described in the financial securities account pledge agreement dated 16
March 2011 and entered into, inter alios, between ANTARGAZ as Pledgor, NATIXIS as Security
Agent, the Beneficiaries, and NATIXIS as Bank Accounts Holder (the “Agreement”), and referred
to in the Statement of Pledge; |
4/ | accept to pay all dividends paid in cash (dividendes en numéraire), interest and other
distributions thereon (fruits et produits) relating to the Shareholder Interest on the Bank
Account; |
5/ | agree to promptly credit to the Financial Securities Account (i) any shareholder interest
(titre financier) for any reason whatsoever substituted for, or added to, the Shareholder
Interest of the Pledgor and (ii) any shares or other shareholder interests (titres financiers)
attributed to, and any additional shares or other shareholder interests (titres financiers)
acquired by the Pledgor and constituting ownership interests in the Company; |
6/ | acknowledge that the Pledgor is not allowed to sell, assign or otherwise dispose of any or
all of the Shareholder Interest credited to the Financial Securities Account other than in
accordance with the Agreement, and undertake not to debit from the Financial Securities
Account any Shareholder Interest credited on the Financial Securities Account from time to
time, except as otherwise provided for in the Finance Documents and in the Agreement; and |
21.
7/ | agree, upon instruction of the Security Agent, to sign all documents and take all action to
render effective, and to record in the Company’s shareholder register (“registre de mouvements
de titres”) and the shareholders accounts registry (“comptes d’actionnaires”), the transfer of
Financial Instruments to it following an enforcement of the Pledge for the benefit of the
Beneficiaries. |
Terms defined herein have the meaning ascribed to them in the Agreement.
Made in Paris, on 16 March 2011
In two (2) original copies
In two (2) original copies
[AQUITAINE RHONE GAZ/GAZ ENERGIE DISTRIBUTION]
as Account Holder
as Account Holder
22.
Schedule 3.
FORM OF BANK ACCOUNT CONFIRMATION OF PLEDGE
To:
|
NATIXIS | |
in its capacity as Security Agent |
Dear Sirs,
Having knowledge of the Statement of Pledge over the Bank Accounts (Déclaration de nantissement de
compte de titres financiers),
dated: 16 March 2011
signed by: ANTARGAZ
We, Natixis, in our capacity as Bank Accounts Holder,
1/ | hereby confirm the opening and constitution of a pledge over special bank accounts, the
references of which are the following: (i) with respect to Aquitaine Rhône Gaz, Bank Account
N°00000 00000 3N019091001 88 open in the name of the Pledgor as provided in the concerned
Statement of Pledge and (ii) with respect to Gaz Energie Distribution, Bank Account N°00000
00000 3N019091002 85 open in the name of the Pledgor as provided in the concerned Statement of
Pledge; and |
2/ | acknowledge that the Pledgor is not allowed to assign or otherwise dispose of any or all of
the monies credited to the Bank Accounts other than in accordance with the terms of the
financial securities account pledge agreement dated 16 March 2011 and entered into, inter
alios, between ANTARGAZ as Pledgor, NATIXIS as Security Agent, the Beneficiaries, and us as
Bank Accounts Holder (the “Agreement”), and referred to in the Statement of Pledge. |
Terms defined herein have the meaning ascribed to them in the Agreement.
Made in Paris, on 16 March 2011
In two (2) original copies
In two (2) original copies
NATIXIS
as Bank Accounts Holder
as Bank Accounts Holder
23.
Schedule 4.
LIST OF LENDERS AND COMMITMENTS
LIST OF LENDERS AND COMMITMENTS
Revolving | ||||
Commitment (EUR) | ||||
Banque Palatine |
1 400 000 | |||
Barclays Bank Plc |
3 800 000 | |||
Banco Bilbao Vizcaya Argentaria |
1 900 000 | |||
BNP Paribas |
5 700 000 | |||
Bred Banque Populaire |
1 900 000 | |||
Caisse Régionale de Crédit Agricole Mutuel de Paris et d’Ile de France |
2 000 000 | |||
Crédit du Nord |
1 900 000 | |||
Crédit Lyonnais SA |
5 700 000 | |||
Banque Commerciale pour le Marché de l’Entreprise |
3 800 000 | |||
Crédit Suisse International |
1 900 000 | |||
HSBC France |
1 900 000 | |||
ING Belgium SA, Succursale en France |
3 800 000 | |||
Natixis |
4 300 000 | |||
40 000 000 | ||||
24.
Schedule 5.
FORM OF NOTICE
FORM OF NOTICE
To:
|
NATIXIS | |
in its capacity as Bank Accounts Holder | ||
Copy to:
|
AQUITAINE RHONE GAZ and GAZ ENERGIE DISTRIBUTION | |
in their capacity as Account Holders | ||
Copy to:
|
ANTARGAZ | |
in its capacity as Pledgor |
(Re: Bank Account number [ARG 00000 00000 3N019091001 88 / GED 30007 99999 3N019091002 85])
Dear Sirs,
We refer to the financial securities account pledge agreement dated 16 March 2011, entered into
between, amongst others, ANTARGAZ as Pledgor, NATIXIS as Security Agent, the Beneficiaries, and
NATIXIS as Bank Accounts Holder (the “Pledge Agreement”).
Capitalized terms used herein shall have the meaning ascribed to them under the Pledge Agreement.
This notice is sent to you for the purpose of Clause 4.4 (Income and Proceeds) of the Pledge
Agreement.
We hereby inform you that an Event of Default has occurred and is continuing and that, as from the
date hereof, the Pledgor is not entitled to use the monies held on the Bank Accounts in accordance
with the provisions of the Pledge Agreement (in particular Clause 4.4(c)). Notwithstanding the
foregoing provisions, the Pledgor is entitled to use the monies held on the Bank Accounts
exclusively in order to perform payments due under the Secured Liabilities.
In accordance with Clause 4.4(d) of the Pledge Agreement, the Pledgor will be entitled again to use
all monies held on the Bank Accounts as soon as we notify you that such Event of Default is
remedied or waived and so long as no other Event of Default occurs and is continuing.
Signed in Paris, on [_____]
NATIXIS
as Security Agent
as Security Agent
25.