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Exhibit 10.3    
    




  





Project Lumina 


Senior
Funding Bond

Subscription Agreement

Amendment and Restatement Agreement 





FIMAF S.A.S
 as Issuer 


and 


Lumina Financing 1, SARL
 as Subscriber 





 


relating
to a subscription agreement dated 26 July 2002 


December
2002 








 
 

CONTENTS    
    



	CLAUSE
 
	 	PAGE

	1.    INTERPRETATION	 	1
	2.    RESTATEMENT OF SUBSCRIPTION AGREEMENT	 	1
	3.    STATUS OF DOCUMENTS	 	2
	       EXPENSES	 	2
	5.    REPRESENTATIONS AND WARRANTIES	 	2
	6.    MISCELLANEOUS	 	3
	7.    GOVERNING LAW AND SUBMISSION TO JURISDICTION	 	3
	

SCHEDULE 1	
 	

4
	Restated Subscription Agreement	 	4









   THIS AMENDMENT AND RESTATEMENT AGREEMENT is made on            December 2002 


BETWEEN:


	(1)
	FIMAF SAS (a company incorporated in France with registered number 421391269) (the  "Issuer"); and



	(2)
	LUMINA FINANCING 1, SARL (a company incorporated in Luxembourg) (the "Subscriber").




WHEREAS:


	(A)
	By a senior funding bonds subscription agreement dated 26 July 2002 (the "Subscription
Agreement") the Subscriber agreed to subscribe for senior funding bonds subject to and upon the terms and conditions thereof.



	(B)
	The parties to this agreement have agreed to enter into this agreement in order to amend and restate the terms of the Subscription
Agreement in the manner set out below. 



THE PARTIES AGREE AS FOLLOWS:


1.     INTERPRETATION  


1.1   Definitions  



In
this agreement: 


"Effective Date" means the date on which the amendment and restatement agreement in respect of the Senior Credit Agreement dated on or about the date of
this agreement has become effective; 


"Restated Subscription Agreement" means the Subscription Agreement as amended and restated in accordance with this agreement in the form set out in
schedule 1; and 


"Senior Credit Agreement" means the Senior Credit Agreement dated 26 July 2002 whereby credit facilities of up to €2,220,000,000
where made available to the Borrowers (as defined therein). 




1.2   Construction



	(a)
	Clauses
1.2 (Construction) and 1.3 (Other References) of the Subscription Agreement will be deemed to be set out in full in this agreement, but as if references in those clauses to
the Subscription Agreement were references to this agreement.



	(b)
	Unless
a contrary intention appears in this agreement, any word or expression defined in the Subscription Agreement will have the same meaning when it is used in this agreement. 




2.     RESTATEMENT OF SUBSCRIPTION AGREEMENT  


2.1   Restatement  



	(a)
	The
Subscription Agreement will, with effect from (and including) the Effective Date, be amended and restated in the form set out in schedule 1 so that the rights and
obligations of the parties to this agreement relating to their performance under the Subscription Agreement from (and including) the Effective Date shall be governed by, and construed in accordance
with, the terms of the Restated Subscription Agreement.



	(b)
	The
parties to this agreement agree that, with effect from (and including) the Effective Date, they shall have the rights and take on the obligations ascribed to them under the
Restated Subscription Agreement. 



1





 





2.2   Effective Date  



	(a)
	The
Issuer will notify the Subscriber promptly when the Effective Date occurs.



	(b)
	If
the Effective Date has not occurred by 20 December 2002 (or any later date which the Issuer and the Subscriber may agree), then clauses 2.1 (Restatement) and 3 (Status of
Documents) will lapse and none of the amendments recorded in clause 2.1 (Restatement) will take effect. 




3.     STATUS OF DOCUMENTS  


3.1   Subscription Agreement  



Except
as varied by the terms of this agreement, the Subscription Agreement will remain in full force and effect and any reference in the Subscription Agreement to the Subscription Agreement or to any
provision of the Subscription Agreement will be construed as a reference to the Subscription Agreement, or that provision, as amended and restated by this agreement. 




3.2   Finance Document  



This
agreement will constitute a Senior Funding Finance Document for the purposes of the Subscription Agreement. 




4.     EXPENSES  


4.1   Initial Expenses  



The
Subscriber will pay to the Issuer 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 the Issuer in connection with the negotiation, preparation, execution and completion of this agreement and all documents, matters and things referred to in, or
incidental to, this agreement. 




5.     REPRESENTATIONS AND WARRANTIES  


5.1   Reliance  



Each
of the Issuer and the Subscriber represents and warrants as set out in the following provisions of this clause 5 and acknowledges that each other has entered into this agreement and has
agreed to the amendment and restatement effected by this agreement in full reliance on those representations and warranties. 




5.2   Powers and Capacity  



It
has the power to enter into and comply with its obligations under this agreement. 




5.3   Authorisation  



It
has taken all necessary action: 


	(a)
	to
authorise the entry into of and compliance with its obligations under this agreement;



	(b)
	to
ensure that its obligations under this agreement are valid, legally binding and enforceable in accordance with their terms; and



	(c)
	to
make this agreement admissible in evidence in the courts of England and the jurisdiction in which it is incorporated. 



2





 





5.4   No Contravention  



The
entry into by it, the exercise of its rights under and the compliance with its obligations under this agreement do not: 


	(a)
	contravene
any material law, regulation, judgment or order to which any Group Company; or



	(b)
	conflict
with its constitutional documents. 




5.5   Obligations Binding  



The
obligations expressed to be assumed by it under this agreement constitute its valid and legally binding obligations and (subject to the Reservations) are enforceable in accordance with their
terms. 




6.     MISCELLANEOUS  


6.1   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. 




6.2   Counterparts  



This
agreement may be executed by facsimile (with the originals to be delivered promptly thereafter) in any number of counterparts and all of those counterparts taken together will be deemed to
constitute one and the same instrument. 




6.3   Third Party Rights  



The
Contracts (Rights of Third Parties) Act 1999 shall not apply to this agreement and no person other than the parties to this agreement shall have any rights under it other than [the
Finance Parties]. 




7.     GOVERNING LAW AND SUBMISSION TO JURISDICTION  


7.1   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 or its formation) shall be governed by, and construed in
accordance with, French law. 




7.2   Submission to Jurisdiction  



For
the benefit of each Finance Party and the Subscriber, the Issuer irrevocably submits to the jurisdiction of the Commercial Courts 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. 




7.3   Freedom of Choice  



The
submission to the jurisdiction of the courts referred to in clause 7.2 (Submission to Jurisdiction) shall not (and shall not be construed so as to) limit the right of any party hereto to
take proceedings against the other party in any other court of competent jurisdiction nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any
other jurisdiction (whether concurrently or not) if and to the extent permitted by applicable law. 




IN WITNESS whereof this agreement has been duly executed on the date first above written. 


3






  



 
 

SCHEDULE 1
  Restated Subscription Agreement    
    


[Insert form of Subscription Agreement] 


4






  



 
 

Signatories to the Amendment Agreement    
    



	The Issuer

FIMAF SAS	 	 
	  	 	 	 
	By:	
	 	 
	  	 	 	 
	The Subscriber

LUMINA FINANCING 1, SARL	 	 
	  	 	 	 
	By:	
	 	 




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Exhibit 10.3



CONTENTS


SCHEDULE 1 Restated Subscription Agreement


Signatories to the Amendment Agreement