Exhibit 10(a)
CONFORMED COPY
23RD AUGUST, 2000
TXU EUROPE LIMITED
AMENDMENT AND RESTATEMENT AGREEMENT
RELATING TO A
FACILITIES AGREEMENT FOR (POUND)1,075,000,000 CREDIT FACILITIES
FACILITY AGENT
CHASE MANHATTAN INTERNATIONAL LIMITED
▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
for the Finance Parties for TXU Europe Limited
CONTENTS
CLAUSE PAGE
1 Purpose and Definitions..................................................1
2 Amendments to the Principal Agreement....................................2
3 Representations and warranties...........................................2
4 Fees and Expenses........................................................3
5 Effective Date...........................................................4
6 Miscellaneous............................................................4
7 Governing Law............................................................5
Schedule 1 Documents and Evidence required as Conditions Precedent.............6
Schedule 2 Form of Amended and Restated Facilities Agreement...................7
THIS AGREEMENT is made as of the 23rd day of August, 2000 BETWEEN:
(1) TXU EUROPE LIMITED (a company registered in England and Wales with company
number 3505836) (the "PRIMARY BORROWER");
(2) TXU FINANCE (NO.2) LIMITED, a company registered in England and Wales with
company number 3514100 ("▇▇▇▇▇ 2") and TXU ACQUISITIONS LIMITED, a company
registered in England and Wales with company number 3455523 ("BIDCO");
(3) CHASE MANHATTAN PLC, ▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE) and ▇▇▇▇▇▇▇
▇▇▇▇▇ CAPITAL CORPORATION as joint lead arrangers;
(4) THE FINANCIAL INSTITUTIONS named in the execution pages as the Banks;
(5) THE CHASE MANHATTAN BANK as the Issuing Bank;
(6) CHASE MANHATTAN INTERNATIONAL LIMITED as the Facility Agent.
IT IS AGREED as follows:
1 PURPOSE AND DEFINITIONS
1.1 PURPOSE
(a) This Agreement is supplemental to an agreement dated 24th March, 1999 made
between the parties hereto (as amended by letters dated 4th January, 2000
and 26th January, 2000) whereby the Banks agreed to make available to the
Borrowers facilities of up to (pound)1,275,000,000 upon the terms and
subject to the conditions therein contained (the "PRINCIPAL AGREEMENT").
(b) The Obligors have requested the Finance Parties to amend and restate the
Principal Agreement and the Majority Banks have agreed to the amendment and
restatement of the Principal Agreement as contemplated by this Agreement.
1.2 DEFINITIONS IN PRINCIPAL AGREEMENT
Unless the context otherwise requires and save as mentioned below, words
and expressions defined in the Principal Agreement shall have the same
meanings when used in this Agreement. In this Agreement:
"EFFECTIVE DATE" shall have the meaning given to it in clause 5.1.
1
1.3 INCORPORATION OF CERTAIN REFERENCES
Clauses 1.3 and 1.4 of the Principal Agreement shall be deemed to be
incorporated in this Agreement in full, mutatis mutandis.
2 AMENDMENTS TO THE PRINCIPAL AGREEMENT
The Principal Agreement shall be amended, with effect from the Effective
Date, to read as set out in Schedule 2 to this Agreement.
3 REPRESENTATIONS AND WARRANTIES
The Primary Borrower represents and warrants to each of the Finance Parties
that:
(a) the principal amount of the Excess Equity Funding has been repaid in full
(it being acknowledged that such repayment shall constitute the discharge
of the Excess Equity Funding for all purposes of the Principal Agreement);
(b) it has power and is able lawfully to execute and deliver this Agreement and
to exercise its rights and perform its obligations under this Agreement and
the transactions contemplated hereby and all corporate or other action
required to be taken by it in order to authorise the execution and delivery
by it of this Agreement and the performance by it of its obligations has
been duly taken;
(c) this Agreement constitutes its legal, valid and binding obligations;
(d) the execution and delivery by it of this Agreement and the performance by
it of its obligations under this Agreement will not:
(i) contravene any provision of any law, statute (including the
Electricity Act), decree, rule, regulation or code of practice to
which it or any of its assets or revenues is subject, or of any order,
judgement, injunction, decree, resolution, determination or award of
any court or any judicial, administrative or Governmental Entity or
organisation having applicability to it or any of its assets or
revenues; or
(ii) result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, bond, agreement or other instrument or obligation to
which it is a party or by which it or any of its assets or revenues
may be bound or affected; or
(iii) violate any provision of its constitutive documents;
2
(e) all consents, approvals, authorisations, exemptions, registrations and
filings and all acts, conditions and things required to be obtained, done,
fulfilled and performed in order to:
(i) enable it to enter into and exercise its rights and perform its
obligations under this Agreement; and
(ii) make this Agreement legal, valid and binding and admissible in
evidence in England and Wales,
have been obtained and are in full force and effect or have been done,
fulfilled or performed (as the case may be); and
(f) each of the repeating representations and warranties referred to in clause
9.22(b) of the Principal Agreement are true and correct as if made at the
date of this Agreement and on the Effective Date with reference to the
facts and circumstances existing at such dates and as if referring to the
Principal Agreement as varied by this Agreement.
4 FEES AND EXPENSES
4.1 FEES
The Primary Borrower shall pay to the Facility Agent (for the account of such
Parties as are entitled thereto), such fees as are set out in the fees letter
dated 26th July, 2000 from Chase Manhattan plc to the Primary Borrower (the "NEW
FEE LETTER").
4.2 EXPENSES
The Primary Borrower shall pay to the Facility Agent on demand all reasonable
expenses (including legal fees) incurred by the Facility Agent in connection
with the negotiation, preparation and execution of this Agreement.
4.3 STAMP AND OTHER DUTIES
The Primary Borrower shall pay all stamp, documentary, registration or other
similar duties or Taxes (including any duties or Taxes payable by, or assessed
on, the Banks or the Facility Agent) imposed on or in connection with this
Agreement or the Principal Agreement and shall indemnify the Facility Agent and
the Banks against any liability arising by reason of any delay or omission by
the Primary Borrower to pay such duties or Taxes.
3
5 EFFECTIVE DATE
5.1 CONDITIONS PRECEDENT DOCUMENTATION
The amendments to be made to the Principal Agreement by this Agreement shall
take effect on and from the date (the "EFFECTIVE DATE") on which the Facility
Agent notifies the Primary Borrower and the Banks that the Facility Agent has
received the documents set out in Schedule 1 in form and substance satisfactory
to it.
5.2 FURTHER CONDITIONS PRECEDENT
The Agent shall give the notice referred to in clause 5.1 unless, on the date on
which it would otherwise have done so, the Facility Agent has received actual
knowledge (i) that an Event of Default has occurred and is continuing or (ii)
that any of the representations and warranties in Clause 3 (Representations and
Warranties) are untrue or incorrect as at such date as if made on such date with
respect to the facts and circumstances existing at such date (unless expressly
instructed in writing by the Majority Banks to do so).
6 MISCELLANEOUS
6.1 CONTINUATION OF PRINCIPAL AGREEMENT
Save as amended by this Agreement, the provisions of the Principal Agreement
shall continue in full force and effect and the Principal Agreement and this
Agreement shall be read and construed as one instrument.
6.2 TRANSITIONAL ARRANGEMENTS
(a) On the Effective Date, each Advance or Letter of Credit outstanding under
the Principal Agreement shall be deemed to be an Advance drawn down or a
Letter of Credit Issued under the terms of the Principal Agreement as
amended and restated by this Agreement.
(b) Each outstanding Advance and Letter of Credit shall have the same Sterling
Amount and be denominated in the same currency as the Advance or Letter of
Credit immediately before the Effective Date, but each outstanding
Revolving Advance shall be repayable on the last day of the then current
Interest Period for that Advance.
6.3 COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so executed and
4
delivered shall be an original but all counterparts shall together constitute
one and the same instrument.
6.4 THIRD PARTIES
(a) The terms of this Agreement may be enforced only by a party to it and the
operation of the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ is excluded.
(b) Notwithstanding any provision of this Agreement, the parties to this
Agreement do not require the consent of any third party to rescind or vary
this Agreement at any time.
7 GOVERNING LAW
This Agreement shall be governed by English law.
IN WITNESS whereof the parties hereto have caused this Agreement to be duly
executed the day and year first above written.
5
SCHEDULE 1
DOCUMENTS AND EVIDENCE REQUIRED AS CONDITIONS PRECEDENT
1 Certified copies of the Memorandum and Articles of Association and the
Certificate of Incorporation and any change of name certificates of the
Primary Borrower, ▇▇▇▇▇ 2 and Bidco, in the agreed form.
2 Certified copies of resolutions of the board of directors of the Primary
Borrower, ▇▇▇▇▇ 2 and Bidco in the agreed form approving the execution and
delivery of and the performance of their respective obligations under this
Agreement and authorising a person or persons (specified by name or office)
on behalf of each of them to sign this Agreement and any other documents to
be delivered by them under this Agreement or the Principal Agreement as
varied by this Agreement.
3 A certificate of a duly authorised signatory of the Primary Borrower, ▇▇▇▇▇
2 and Bidco setting out the names and specimen signatures of the persons
authorised to sign on behalf of such person the documents referred to in
clause 2 above and any other documents to be delivered by such company
pursuant to them, and confirming that the resolutions referred to in clause
2 above are still in effect and have not been varied or rescinded.
4 The opinion of ▇▇▇▇▇ & Overy, English solicitors for the Facility Agent.
5 The New Fee Letter, duly executed and countersigned, and the fees and
expenses payable under the New Fee Letter having been paid.
6 Evidence that the maximum outstanding amount of the (pound)250,000,000
multicurrency facility dated 21st May, 1998 between (among others) Eastern
Electricity plc and Chase Manhattan International Limited as facility agent
has been permanently reduced to an amount not exceeding (pound)150,000,000.
7. Evidence that all amounts of principal under the Excess Equity Funding have
been repaid in full and confirmation of the amounts of interest outstanding
under the Excess Equity Funding.
6
SCHEDULE 2
FORM OF AMENDED AND RESTATED FACILITIES AGREEMENT
AMENDED AND RESTATED
FACILITIES AGREEMENT
dated 24th March 1999 (and amended
and restated by an agreement
dated 23rd August, 2000 on the Effective Date)
for
(pound)1,075,000,000 Credit Facilities
TXU Europe limited (1)
as Primary Borrower
CHASE MANHATTAN PLC (2)
▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
as Joint Lead Arrangers
THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1 (3)
as Banks
THE CHASE MANHATTAN BANK (4)
as Issuing Bank
CHASE MANHATTAN INTERNATIONAL LIMITED (5)
as Facility Agent
▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
for the Finance Parties for TXU Europe Limited
7
CONTENTS
CLAUSE PAGE
1. Purpose and Definitions.................................................10
2. The Commitments.........................................................39
3. The Conditions..........................................................40
4. Advances and Letters of Credit..........................................40
5. Interest and Interest Periods...........................................47
6. Repayment, Prepayment, Cancellation and Reductions......................50
7. Fees and Expenses.......................................................53
8. Payments and Taxes; Accounts and Calculations...........................55
9. Representations and Warranties..........................................64
10. Information Undertakings................................................68
11. General Undertakings....................................................70
12. Events of Default.......................................................80
13. Indemnities.............................................................85
14. Unlawfulness, Increased Costs, Alternative Interest Rates...............87
15. Set-Off and Pro-Rata Payments...........................................91
16. Assignment, Substitution and Lending Offices............................93
17. Facility Agent..........................................................96
18. Powers..................................................................98
19. Duties.................................................................101
20. Exoneration............................................................102
21. Guarantee..............................................................106
22. Determination of Matters...............................................107
23. Basis of Decisions.....................................................109
24. Matters concerning the Obligors........................................111
25. Notices and Other Matters..............................................112
26. Governing Law and Jursidiction.........................................115
8
THE SCHEDULES
SCHEDULE PAGE
SCHEDULE 1 The Banks and their Commitments...................................116
SCHEDULE 2 Forms of Drawdown Notice
Part A Revolving Credit Facility.............................................119
Part B Letters of Credit.....................................................120
SCHEDULE 3 Documents and Evidence Required as Conditions Precedent to the
Accession of Guarantors......................................................121
SCHEDULE 4 Calculation of Mandatory Cost Rate................................122
SCHEDULE 5 Form of Substitution Certificate (referred to in clause 16.5
(Substitution Certificate))..................................................124
9
THIS AGREEMENT is dated as of the 24th day of March 1999, was amended and
restated on the Effective Date (as defined below) and is made BETWEEN:
(1) TXU EUROPE LIMITED (a company registered in England and Wales with company
number 3505836) (the "PRIMARY BORROWER"); (2) CHASE MANHATTAN PLC, ▇▇▇▇▇▇
BROTHERS INTERNATIONAL (EUROPE) and ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION as
joint lead arrangers; (3) THE FINANCIAL INSTITUTIONS listed in Schedule 1
as the initial Banks; (4) THE CHASE MANHATTAN BANK as the initial Issuing
Bank; and (5) CHASE MANHATTAN INTERNATIONAL LIMITED as the initial Facility
Agent.
IT IS AGREED as follows:
2. PURPOSE AND DEFINITIONS
2.1 PURPOSE
This Agreement sets out the terms and conditions upon and subject to which
the Banks agree, according to their several obligations, to make available:
(a) TERM FACILITY to the Primary Borrower, a term facility in Sterling of
up to(pound)750,000,000 which shall be available for the financing or
refinancing of the Acquisition;
(b) REVOLVING CREDIT FACILITY to the Primary Borrower, a four year
multicurrency revolving credit facility of up to a Sterling Amount of
(pound)325,000,000 to be used for the Group's general corporate
purposes.
For the avoidance of doubt, no Revolving Advance may be used to finance or
refinance the Acquisition save as envisaged by clause 4.3 (Utilisations
generally).
No amounts borrowed under any of the Facilities may be used, directly or
indirectly, to repay or refinance the minimum equity contribution of
(pound)1,678,082,000 required to be made under the terms of the Original
Facilities Agreement.
This Agreement is being entered into for the purpose, in effect, of
amending and restating the Original Facilities Agreement.
2.2 DEFINITIONS
In this Agreement, unless the context otherwise requires:
"ACCESSION CERTIFICATE" means an accession certificate (by way of deed)
substantially in the form of Schedule 6 (Form of Accession Certificate) and
entered into or to be entered into by an acceding Obligor and the Facility
Agent;
"ACQUISITION" means the acquisition by Bidco of the Target Shares;
"ACT" means the Companies ▇▇▇ ▇▇▇▇;
10
"ACTING IN CONCERT" has the meaning given to that term in the City Code on
Takeovers and Mergers;
"ADDITIONAL GUARANTOR" means any member of the Group which accedes to this
Agreement as a Guarantor pursuant to clause 11.20 and in accordance with
clause 24 (Matters Concerning the Obligors) for so long as it remains a
Guarantor;
"ADJUSTED SHARE CAPITAL AND RESERVES" means the aggregate of the following
items namely:
(a) the nominal amount of the share capital of ▇▇▇▇▇ 2 for the time being
issued and paid up or credited as paid up excluding any Qualifying
Preference Shares issued by ▇▇▇▇▇ 2;
(b) the amounts standing to the credit of the consolidated reserves of the
Group (including any share premium account and capital redemption
reserve),
but adjusted, to the extent that the following items have not already been
added, deducted or excluded in arriving at the figures referred to in (a)
or (b) above:
(i) by deducting the amounts standing to the debit of the
consolidated reserves of the Group;
(ii) by deducting any amounts attributable to interests of non-Group
members in Subsidiaries of ▇▇▇▇▇ 2;
(iii) by deducting any reserves set aside for deferred taxation;
(iv) by deducting the amount by which the net book value of any fixed
asset has been written up after the date of this Agreement (or,
in the case of a person which has become or becomes a member of
the Group after that date, the date on which it became or becomes
a member of the Group) by way of revaluation or on its transfer
from one member of the Group to another (but no such deduction
shall be made if the amount of this write up is supported by and
does not exceed the amount shown by an independent written
valuation);
(v) by adding back (aa) to capital reserves, goodwill written off by
reason of the Acquisition and (bb) to cumulative revenue
reserves, any goodwill arising on the Acquisition and
subsequently amortised through the profit and loss account;
(vi) by adding back (aa) to capital reserves, goodwill written off by
reason of any other acquisition after the date of this Agreement
of all or a majority of the equity share capital or business of
another person and (bb) to cumulative revenue reserves, any
goodwill, arising on any other such acquisition and subsequently
amortised through the profit and loss account; and
(vii) by adding back proceeds (up to a maximum aggregate amount of
US$500,000,000) from any issue of Equity-Credit Preferred
Securities
11
but so that no amount to be added, deducted or excluded as a result of any
of the foregoing shall be added, deducted or excluded more than once in the
same calculation and, where the calculation is being made as at the end of
a Test Period or in the context of paragraph (d) of the definition of
Permitted Security Interest or in the context of clauses 11.1 (Financial
ratios) or 11.17 (Project Finance Subsidiaries), each such amount shall be
determined by reference to the most recent financial statements and
compliance certificates delivered hereunder as adjusted pursuant to the
provisions of clause 11.2 (Change of Accounting policies) and the terms of
this definition or any relevant clause of this Agreement;
"ADVANCE" means any Term Advance or Revolving Advance and, as the context
requires, includes the full amount of such Advance when made or the amount
of an Advance which is outstanding at any relevant time;
"AFFECTED BANK" has the meaning given to it in clause 14.4 (Mitigation)
(except that the definition of "Affected Bank" and "Affected Banks" in
clause 4.14 (Unavailability of Optional Currency) shall have that meaning
in that clause only);
"AFFILIATE" means, in relation to any person, any Subsidiary of that
person, any holding company of that person and any other Subsidiary of that
holding company;
"APPLICABLE FEES RATE" means at any time 50% of the Applicable Margin;
"APPLICABLE MARGIN" means, at any time, 0.875% per annum or if at the date
hereof or subsequently the most recent determination of the Leverage Ratio
under clause 11.1 (Financial Ratios) shows that the Leverage Ratio is less
than 65%, the rate per annum determined as follows:
LEVERAGE RATIO AND NOT LESS THAN: APPLICABLE MARGIN IS:
IS LESS THAN:
65% 60% 0.75%
60% 55% 0.625%
55% - 0.5%
provided that:
(a) any reduction or increase in the Applicable Margin shall have effect 5
Banking Days following the date of delivery of any set of audited or
management accounts for a Quarter under clause 10.3(a) (Annual audited
financial statements) and 10.3(b) (Unaudited management accounts),
together with the financial covenant compliance certificate by the
Primary Borrower referred to in clause 10.3(c) (Compliance with
financial undertakings), until (but excluding) the effective date for
any subsequent change in the Applicable Margin in accordance with this
definition;
(b) during the continuance of any Default, any margin reduction under this
definition will not apply, and the Applicable Margin shall be 0.875%;
12
"APPROPRIATE ACCOUNTING PRINCIPLES" means:
(c) the accounting principles, policies, standards, practices and bases
(being generally accepted in the United Kingdom), as adopted in the
Original Group Accounts; or
(d) where any change has occurred and (if required) has been agreed under
clause 11.2 (Change of Accounting policies), such accounting
principles, standards, practices and bases as have so occurred and (if
required) have been so agreed;
"ARRANGERS" means Chase Manhattan plc, ▇▇▇▇▇▇ Brothers International
(Europe) and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation;
"AUDITORS" means Deloitte & Touche or such other internationally recognised
firm of chartered accountants as may be auditors to the Group for the time
being;
"AVAILABLE AMOUNT" means, at any time and in respect of any Facility, the
aggregate of the Available Commitments of all the Banks in respect of such
Facility at such time;
"AVAILABLE COMMITMENT" means, in relation to a Bank and save as otherwise
provided in this Agreement in respect of the Revolving Credit Facility at
any time, its Commitment in respect of such Facility at such time less:
(i) its Contribution to the Sterling Amount of all outstanding
Revolving Advances at such time;
(ii) its Proportion of the Sterling Amount at that time of the
Outstanding Contingent Liabilities under all Letters of Credit
then outstanding under the Revolving Credit Facility; and
(iii) its proportion of the Sterling Amount of any amount paid out by
the Issuing Bank under a Letter of Credit issued under the
Revolving Credit Facility and not yet reimbursed;
"AVAILABLE COMMITMENT TERMINATION DATE" means save as otherwise provided
herein in relation to the Revolving Credit Facility, one month before the
Final Repayment Date.
"BANKING DAY" means a day (other than a Saturday or a Sunday) on which
banks are open for general business in London and New York City; and:
(e) in relation to a transaction involving an Optional Currency (other
than Euros, Euro Units or national currency units), the principal
financial centre of the country of that Optional Currency; and
(f) in relation to a transaction involving Euros, Euro Units or national
currency units, in Frankfurt am Main, Germany (or such other principal
financial centre(s) of any Participating Member State(s) as the
Facility Agent may from time to time reasonably nominate for this
purpose) and, being a day on which payments in Euros are settled in
the Trans-European Automated Real-time Gross settlement Express
Transfer (TARGET) system;
13
"BANKS" means the original banks listed in Schedule 1 (The Banks and their
Commitments) and includes their successors in title, assignees and
Substitutes;
"BIDCO" means TXU Acquisitions Limited (company no.3455523);
"BORROWED MONEY" means any present or future Indebtedness (whether by way
of principal or premium) for or in respect of:
(g) money borrowed or raised;
(h) any recourse arising from the discounting of receivables save for
recourse for disputed or ineligible debts or similar rights of
recourse typical in a securitisation transaction;
(i) liabilities under or in respect of any acceptance or acceptance credit
or documentary credit facility or standby credit facility, other than
(i) any such credit facility relating to the acquisition cost of
assets or services to the extent that the same involves deferral of
payment of any sum for one year or less and (ii) exposure under any
such credit issued to back completion or performance obligations
(including any obligation to lodge cash margin payments in case of a
specified decline in a Group Company's rating), except to the extent
that:
(aa) such obligations are for the payment of Borrowed Monies, or for
the payment of liquidated damages the payment of which is
triggered by an event or circumstance which has (as of the
relevant date on which any calculation is made) already occurred,
and, in the case of a decline in rating, if the rating agency
concerned has reduced the relevant rating, the amount taken into
account will be the amount which has, or will, become payable by
reason of such decline; or
(bb) provision has been made in the accounts of the relevant Group
Company for an amount due under the underlying obligation or,
were the relevant Group Company to prepare accounts as of the
date on which a compliance certificate is issued to the Facility
Agent under clause 10.3 (Delivery of financial statements), such
a provision should be made in accordance with Appropriate
Accounting Principles;
(j) any notes, bonds, debentures, debenture stock, loan stock or other
debt security offered, issued or distributed whether by way of public
offer, private placing, acquisition consideration or otherwise and
whether issued for cash or in whole or in part for a consideration
other than cash, other than any bond, note, debenture or other debt
security referred to in (f) below;
(k) any outstanding Qualifying Preference Shares in issue;
(l) any outstanding balance of the acquisition cost of assets or services
to the extent payable on deferred payment terms after the time of
acquisition or possession thereof by the person liable (but only to
the extent that the same:
(i) involves deferral of payment of any sum for more than one year;
14
(ii) is not a cost in respect of the expansion, development or renewal
of all or part of the "licensee's distribution system" (as
defined in the PES Licence); and
(iii) exceeds(pound)25,000,000 in respect of any transaction or series
of related transactions)
whether or not any instalments for payment are evidenced by a bond,
note, debenture or other debt security issued by the obligor;
(m) any Finance Lease;
(n) any guarantee, indemnity or other legally binding assurance against
(or other legally binding arrangement intended to prevent or limit)
loss arising under any Borrowed Money of any person who is not a Group
member;
(o) for the purpose of clause 12.1(d) (Cross-default) only, any
Derivatives Transaction (calculated at the ▇▇▇▇-to-market value for
close-out);
(p) any liability which has arisen under any transaction by virtue of
which:
(i) a capital sum is received by a person as consideration for the
sale or disposal (whether by outright alienation or the grant of
a lease or other interest or otherwise) of any assets; and
(ii) a third party making or funding the payment receives a guarantee,
indemnity or other legally binding assurance from a member of the
Group against (or other legally binding arrangement intended to
prevent or limit) loss as a result of the assets not generating
or being realised for a specific amount or an amount calculated
in an agreed manner;
(q) any amount raised under any other transaction having the commercial
effect of a borrowing and entered into primarily as a means of raising
finance;
(r) such part (if any) of the amounts made available to any person as a
result of any securitisation as, in accordance with the Appropriate
Accounting Principles, is or is to be treated as a creditor rather
than as a deduction from or reduction in debtors or other assets;
Provided that:
(i) Subordinated Debt shall be excluded;
(ii) Indebtedness of a member of the Group to another member of the
Group shall be excluded except that indebtedness of any member of
the Group to the Primary Borrower shall (to the extent that any
such indebtedness would have fallen within the definition of
Borrowed Money if owed to a third party) be treated as Borrowed
Money. Where Borrowed Money is incurred by an SPV and on-lent
indirectly to ▇▇▇▇▇ 2 by the Borrowed Money in question being
on-lent by such SPV to the Primary Borrower and then being
on-lent by the Primary Borrower to ▇▇▇▇▇ 2, such Borrowed Money
15
shall be counted only once in any calculation of the Leverage
Ratio or of any other Financial Covenant;
(iii) Indebtedness of a member of the Group to a Relevant Person shall
(to the extent that any such Indebtedness would have fallen
within the definition of Borrowed Money if owed to a third party)
be treated as Borrowed Money;
(iv) any interest, dividends, commissions, fees or other like
financing charges shall be included to the extent that they have
been capitalised and remain payable but have not been discharged;
(v) in respect of paragraph (d) (where the item concerned is a bond,
note, debenture, debenture stock, loan stock or other debt
security issued at a discount) and in respect of paragraph (e),
only the issue price of any such debt security or Qualifying
Preference Share falling thereunder, together with any applicable
discount required under the Appropriate Accounting Principles to
be recognised in the relevant person's most recently published
financial statements, shall be included;
(vi) in respect of paragraph (g), only the capitalised value
established in accordance with the Statement of Standard
Accounting Practice 21 (as supplemented, varied or replaced from
time to time) of a Finance Lease as shown in the relevant
person's most recently published financial statements (or as
would be shown in the next following financial statements, if
such Finance Lease was entered into in a period for which there
are not yet statements available) shall be included;
(vii) Indebtedness for or in respect of Project Finance Borrowings
shall be excluded; and
(viii) adjustments shall be made to the exchange rate at which such
Borrowed Monies are converted into Sterling in order to take
account of the effect of any relevant currency swap;
(ix) Indebtedness for or in relation to Equity-Credit Preferred
Securities up to US$500,000,000 shall be excluded from Borrowed
Money;
(and so that no amount shall be included or excluded more than once);
"BORROWER" means the Primary Borrower;
"CAPITALISATION" means at any time the aggregate of Adjusted Share Capital
and Reserves and Consolidated Net Borrowings;
"CHANGE IN CONTROL" shall be deemed to have occurred if:
(s) any person or group of related persons (other than the Parent, any
Subsidiary of the Parent, or any pension, savings or other employee
benefit plan for the benefit of employees of the Parent and/or any
Subsidiary of the Parent) shall have acquired beneficial ownership of
more than 30% of the outstanding Voting Shares of the Parent (within
the meaning of section 13(d) or 14(d) of the Securities Exchange Act
16
of 1934 of the United States of America, as amended, and the
applicable rules and regulations thereunder); provided that a Change
in Control shall not be deemed to have occurred if such acquisition
has been approved, prior to the Parent Acquisition Date and the date
on which any tender offer for Voting Shares of the Parent was
commenced, by a majority of the Disinterested Directors of the Parent;
or
(t) during any period of 12 consecutive months, commencing on or after 2
March 1998, individuals who on the first day of such period were
directors of the Parent (together with any replacement or additional
directors who were nominated or elected by a majority of directors
then in office) cease to constitute a majority of the board of
directors of the Parent;
"COMMITMENT" means, in relation to a Bank and in respect of any Facility at
any relevant time, the amount set opposite its name in relation to the
relevant Facility in Schedule 1 (The Banks and their Commitments) and/or,
in the case of a Substitute, the amount novated in relation to the relevant
Facility as specified in the relevant Substitution Certificate, as reduced,
in each case, by any relevant term of this Agreement;
"CONSOLIDATED NET BORROWINGS" means, at any time, in respect of the Group,
the aggregate of the Borrowed Money of the Group, as shown in the then
latest compliance certificate most recently delivered to the Facility Agent
pursuant to clause 10.3(c) (Compliance with Financial Undertakings) (the
"RELEVANT BALANCE SHEET"), less the aggregate book value of:
(u) all Liquid Assets which are in, or are freely transferable to, the
United Kingdom and which are owned by ▇▇▇▇▇ 2 or a wholly-owned member
of the Group or (in the case of the Liquid Assets of a member of the
Group which is a partly-owned member of the Group) the proportion of
the total amount for the time being of Liquid Assets held by such
member which corresponds to the proportion of the total nominal amount
of the issued equity share capital of such member which is
beneficially owned directly or indirectly by ▇▇▇▇▇ 2 (exclusive of
Liquid Assets constituting or representing obligations of any member
or members of the Group); and
(v) in the case of a partly-owned member of the Group, the proportion of
total amounts for the time being outstanding of Borrowed Money owing
by such partly owned member of the Group otherwise than to another
member of the Group which corresponds to the proportion of the total
nominal amount of the issued equity share capital of such partly owned
member of the Group not beneficially owned directly or indirectly by
▇▇▇▇▇ 2 (the "MINORITY PROPORTION");
but adding the aggregate book value (as included in the relevant balance
sheet) of the Minority Proportion of the total amount, if any, for the time
being outstanding of Borrowed Money owing to a partly-owned member of the
Group by any other member of the Group;
17
"CONTRIBUTION" means, in relation to a Bank, the principal amount of any or
all (as the context requires) of the Term Advances and/or the Revolving
Advances and its Proportion of the Outstanding Contingent Liabilities owing
to such Bank at any relevant time;
"CONTRACTUAL CURRENCY" has the meaning ascribed to it in clause 13.2(a);
"DEFAULT" means any Event of Default or any event which with the giving of
notice, lapse of time, determination of materiality or fulfilment of any
other applicable condition (or any combination of the foregoing) would, if
unremedied, constitute an Event of Default;
"DERIVATIVES TRANSACTION" means a contract, agreement or transaction which
is:
(w) a rate swap, basis swap, forward rate transaction, equity (or equity
or other index) swap or option, bond option, interest rate option,
foreign exchange transaction, cap, collar or floor, currency swap,
currency option or any other similar transaction; and/or
(x) any combination of such transactions;
in each case, whether on-exchange or otherwise;
"DIRECTOR GENERAL" means the person appointed from time to time by the
Secretary of State to hold office as the Director General of Electricity
Supply (or any successor to his functions) for the purposes of the
Electricity Act;
"DISINTERESTED DIRECTOR" shall mean any member of the Board of Directors of
the Parent who:
(y) is not affiliated, directly or indirectly, with, or appointed by, a
person or group of related persons (other than the Parent, any
Subsidiary of the Parent, or any pension, savings or other employee
benefit plan for the benefit of employees of the Parent and/or any
Subsidiary of the Parent) acquiring the beneficial ownership of more
than 30% of the outstanding Voting Shares of the Parent (within the
meaning of section 13(d) or 14(d) of the Securities Exchange Act of
1934 of the United States of America, as amended, and the applicable
rules and regulations thereunder); and
(z) either was a member of the board of directors of the Parent prior to
the Parent Acquisition Date or was recommended for election by a
majority of the Disinterested Directors in office prior to the Parent
Acquisition Date;
"DISTRIBUTION BUSINESS" means the business of REC, or any successor
undertaking to that business within the Group, in or ancillary to the
distribution (whether for its own account or that of any other party) of
electricity through the Group's distribution system and includes any
business of providing connections to the Group's distribution system;
"DOUBLE TAXATION TREATY" means any convention or agreement between the
government of the United Kingdom and any other government for the avoidance
of double taxation and the prevention of fiscal evasion with respect to
taxes on income and capital gains;
"DRAWDOWN DATE" means the date on which an Advance is, or is to be, made;
18
"DRAWDOWN NOTICE" means, in respect of a Facility, a notice substantially
in the terms of the relevant Part of Schedule 2 (Forms of Drawdown Notice);
"EBITDA" means, in respect of any Test Period, the total operating profit
of the Group for continuing operations, acquisitions (as a component of
continuing operations) and discontinued operations (excluding any share of
consolidated profits or losses which is attributable to Project Finance
Subsidiaries or to a business the assets or cash flow of which constitute
security for Project Finance Borrowings as contemplated in paragraphs
(c)(i) and (c)(ii) of the definition of Project Finance Borrowings) and
including dividends received in cash by members of the Group from Project
Finance Subsidiaries (or any other company not being a member of the
Group), in each case before taking into account:
(aa) interest payable and interest receivable;
(bb) amounts provided for depreciation and amortisation of goodwill;
(cc) exceptional items;
(dd) Taxes (other than VAT);
(ee) the deduction of any costs relating to the Acquisition; and
(ff) the deduction of costs (not exceeding an aggregate amount of
(pound)25,000,000) related to any other acquisition after the
Effective Dateof all or a majority of the equity share capital or
business of another person;
for that Test Period (calculated on a consolidated basis disregarding any
portion of any item taken into account in that calculation which is
attributable to any minority interests in Subsidiaries, but for this
purpose treating ▇▇▇▇▇ 2 as a wholly-owned Subsidiary of the Primary
Borrower) all as determined by reference to the most recent financial
statements and compliance certificates delivered under clause 10.3
(Delivery of Financial Statements), as adjusted pursuant to clause 11.2
(Change of Accounting policies);
"EFFECTIVE DATE" has the meaning given to it in the Restatement Agreement;
"ELECTRICITY ACT" means the Electricity ▇▇▇ ▇▇▇▇ and, unless the context
otherwise requires, all subordinate legislation made pursuant to that Act
and all other laws, regulations or requirements of any relevant authority
(in so far as such regulations have the force of law) relating to the
transmission, distribution or supply of electricity in force in the United
Kingdom;
"EMU" means Economic and Monetary Union as contemplated in the Treaty
establishing the European Community;
"EMU LEGISLATION" means legislative measures of the European Council for
the introduction of, changeover to or operation of a single or unified
European currency (whether known as the Euro or otherwise), being in part
the implementation of the third stage of Economic and Monetary Union as
contemplated in the Treaty on European Union;
"ENFORCEMENT DATE" means the date of the first declaration made by the
Facility Agent pursuant to clause 12.2 (Acceleration);
19
"EQUITY-CREDIT PREFERRED SECURITIES" shall mean securities, however
denominated:
(i) issued by the Primary Borrower or any of the Primary Borrower's
Subsidiaries;
(ii) that are not subject to mandatory redemption or the underlying
securities, if any, of which are not subject to mandatory redemption
(save upon acceleration after the occurrence of an event of default
thereunder);
(iii) that are perpetual or mature no less than 30 years from the date of
issuance;
(iv) the indebtedness incurred by any member of the Group in connection
with which, including any guarantee, is subordinate in right of
payment to the unsecured and unsubordinated indebtedness of the issuer
of such indebtedness or guarantee; and
(v) the terms of which permit the deferral of the payment of interest or
distributions thereon to a date occurring after the Final Repayment
Date;
and where the proceeds of such securities are on-lent or on-invested into
the Group or otherwise represented or underlain by one or a series of
underlying inter-company loans, debentures or other securites, references
to Equity Credit-Preferred Securities shall where the context admits
include such loans, debentures or other securities;
"EQUITY-FINANCED LOAN" means the aggregate of any loans by the Primary
Borrower (other than to a member of the Group) to the extent that at any
time they do not exceed an amount equal to the excess (if any) of dividends
received by the Primary Borrower over and above the amount of dividends
paid out or declared by the Primary Borrower;
"EURO" means the single currency of Participating Member States;
"EURIBOR" means, in relation to any Advance or unpaid sum denominated in
Euros, the percentage rate per annum determined by the Facility Agent to be
equal to:
(gg) the rate which appears on the page of the Telerate Screen which
displays for spot value the EURIBOR rate sponsored by the Banking
Federation of the European Union for deposits in Euros (currently page
"248") for the specified period; or
(hh) if such page or such service shall cease to be available or relevant,
such other page or such other service for the purpose of displaying
the EURIBOR rate for Euros as the Facility Agent, after consultation
with the Banks and the Primary Borrower, shall select; or
(ii) if no rate can be determined under (b) above, the arithmetic mean
(rounded upwards, if not already such a multiple, to four decimal
places) of the rates (as notified to the Facility Agent) at which each
of the Reference Banks was offering to prime banks in the European
inter-bank market deposits in euro for the specified period,
"EURO UNIT" means the currency unit of the Euro;
"EVENT OF DEFAULT" means any of the events or circumstances described in
clause 12.1 (Events of Default);
20
"EXCESS EQUITY FUNDING" means the amount owing by Bidco to the Parent
pursuant to the note issued by Bidco to the Parent in consideration of the
issue of the Parent's shares, which shares constituted a portion of the
consideration for the Target Shares acquired by Bidco in connection with
the Acquisition.
"EXPIRY DATE" means the date stated in a Letter of Credit to be its expiry
date or (if later) the latest date on which demand may be made under it;
"FACILITIES" means both or either (as the context requires) of the Term
Facility and the Revolving Credit Facility and (as the context requires)
"FACILITY" means either of them;
"FACILITY AGENT" means Chase Manhattan International Limited of ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ or such other person as may be appointed Facility
Agent for the Banks pursuant to clause 17 (Facility Agent);
"FACILITY OFFICE" means, in relation to the Facility Agent or any Bank, the
office identified in Schedule 1 (or, in the case of a Substitute, at the
end of the Substitution Certificate to which it is a party as a Substitute)
or such other office as it may from time to time select provided written
notice thereof has been given by the Facility Agent or such Bank to the
Primary Borrower;
"FEE LETTERS" means the fee letters referred to in clause 7.1 (Arrangement,
underwriting, participation and agency fees), in the agreed form, and "FEE
LETTER" shall mean any one of them;
"FEE PAYMENT DATE" means each of the dates falling at three monthly
intervals after the date of this Agreement;
"FINAL REPAYMENT DATE" means 2 March 2003;
"FINANCE DOCUMENTS" means this Agreement, the Restatement Agreement, any
L/C-Related Document, each Drawdown Notice, each Accession Certificate and
the Fee Letters (including the fee letter referred to in clause 4.1 of the
Restatement Agreement);
"FINANCE LEASE" means any lease under which a member of the Group is the
lessee which is or should be treated as a finance or capital lease under
the Appropriate Accounting Principles (and includes any hire purchase
contract or other arrangement which is or should be similarly treated);
"FINANCE PARTIES" means the Facility Agent, the Issuing Bank, the Arrangers
and the Banks and (as the context requires) "FINANCE PARTY" means any one
of them;
"FINANCE PERIOD" means the period from the date of this Agreement until the
date on which the Facility Agent acting reasonably confirms that none of
the Finance Parties and none of the Obligors has any actual or contingent
liabilities or obligations under any of the Finance Documents;
"FINANCIAL COVENANTS" means the financial undertakings in clause 11.1
(Financial ratios);
21
"FINANCIAL DEFINITIONS" means the definitions of Adjusted Share Capital and
Reserves, Capitalisation, Consolidated Net Borrowings, EBITDA, Leverage
Ratio, Net Interest Costs and Test Period;
"▇▇▇▇▇ 2" means TXU Finance (No.2) Limited (company number 3514100);
"GAS FRAMEWORK AGREEMENT" means the agreement dated 1 March 1996 between
British Gas Transco and Eastern Natural Gas (Retail) Limited;
"GENERATION BUSINESS" means the business of the Group in or ancillary to
the generation of electricity (whether for its own account or that of any
other party);
"GENERATION LICENCE" means each of those licences granted by the Secretary
of State under section 6(1) of the Electricity Act authorising the relevant
licensee to carry on Generation Business and any activities ancillary
thereto, or any replacement licence or licences granted from time to time
to any member of the Group (or, if more than one, the most recent such
replacement);
"GOVERNMENT ENTITY" means and includes (whether having a distinct legal
personality or not) any supra-national, national or local government
authority, regulatory body, central bank, board, commission, department,
division, organ, instrumentality, court or agency and any association,
organisation or institution of which any of the foregoing is a member or to
whose jurisdiction any of the foregoing is subject or in whose activities
any of the foregoing is a participant;
"GROUP" means the Primary Borrower and all its Subsidiaries for the time
being (except Project Finance Subsidiaries) save that, where the reference
to the Group is used in respect of the Financial Definitions used in
calculating the Leverage Ratio, Group shall mean the Primary Borrower's
Subsidiaries (except Project Finance Subsidiaries) and shall not include
the Primary Borrower itself, and in either case "MEMBER OF THE GROUP" or
"GROUP COMPANY" means any one of them;
"GUARANTEE" means the guarantee set out in Schedule 9 (Terms of Guarantee)
given by the Primary Borrower and any Additional Guarantor;
"GUARANTOR" means the Primary Borrower in its capacity as the person
obligated under the Guarantee and any Additional Guarantor;
"INDEBTEDNESS" means any obligation of a person for the payment or
repayment of money, whether as principal or as surety and whether present
or future, actual or contingent;
"INTEREST PAYMENT DATE" means the last day of an Interest Period;
"INTEREST PERIOD" means in relation to any Term Advance, each period for
the calculation of interest in respect of such Advance ascertained in
accordance with clause 5.2 (Interest Period for the Term Advances) (or
otherwise in this Agreement);
"ISSUE" means with respect to any Letter of Credit, to issue or extend the
expiry of, or to renew or increase the amount of, such Letter of Credit;
and the terms "ISSUED", "ISSUING" and "ISSUANCE" have corresponding
meanings;
22
"ISSUE DATE" means in relation to a Letter of Credit, the date on which
that Letter of Credit was Issued, or, as the context requires, is to be
Issued under clause 4.5 (Issue of Letters of Credit);
"ISSUING BANK" means The Chase Manhattan Bank or any alternative Bank which
has been notified by the Primary Borrower to the Facility Agent as the
issuer of any Letter of Credit in accordance with the terms of this
Agreement;
"L/C-RELATED DOCUMENTS" means each Letter of Credit, any Drawdown Notice or
other application for a Letter of Credit and any other document relating to
any Letter of Credit;
"LETTER OF CREDIT" means a letter of credit or a bank guarantee (as the
case may be) Issued or to be Issued by the Issuing Bank on the terms of
this Agreement;
"LEVERAGE RATIO" means, at any relevant date, the percentage which
Consolidated Net Borrowings is of Capitalisation of the Group;
"LIBOR" means, in relation to any Advance or unpaid sum, the rate per annum
determined by the Facility Agent to be equal to:
(jj) in the case of Euros, EURIBOR; or
(kk) in the case of any other currency, the offered rate (if any) appearing
on the relevant page of the Telerate screen, or such other pages as
may replace such page of the Telerate screen, which displays "BBA
LIBOR" for deposits in the relevant currency and for the specified
period (where "SPECIFIED PERIOD" means the Interest Period or Maturity
Period of such Advance or, as the case may be, the period for which
LIBOR falls to be determined in relation to such unpaid sum); or
(ll) if no rate can be determined under (b) above, the arithmetic mean
(rounded upwards, if not already such a multiple, to four decimal
places) of the rates (as notified to the Facility Agent) at which each
of the Reference Banks was offering to, in the case of Euros, prime
banks in the European inter-bank market and, in the case of any other
currency, leading banks in the London inter-bank market, deposits in
the relevant currency and for the specified period,
in each case at or about 11.00 am (London time or, in the case of Euros,
Central European Time) on the Quotation Date for such period;
"LICENCE UNDERTAKING" means any and each undertaking or assurance by any
one or more of the Parent, the Primary Borrower, ▇▇▇▇▇ 2, Bidco, the Target
or The Energy Group Limited (company number 3613919) or any Affiliate of
any of them to the Director General, the Director General of Gas Supply or
the Secretary of State concerning the management and/or ownership of and/or
other matters concerning any Licensee;
"LICENCES" means those licences granted by the Secretary of State:
(mm) under the Electricity Act to the REC or any other Principal Subsidiary
authorising each relevant licensee to carry on the Distribution
Business, the Supply Business, a Second-Tier Supply Business or (or
part of) the Generation Business and any activities ancillary thereto;
23
(nn) under section 7 of the Gas ▇▇▇ ▇▇▇▇ to a Principal Subsidiary ; or
(oo) being a replacement licence or licences, from time to time to REC or
any other Principal Subsidiary (or, if more than one, the most recent
such replacement);
as amended and/or extended from time to time;
"LICENSEES" means REC and any such other Principal Subsidiary as, at any
time, is the licensee under a Licence and "LICENSEE" means any one of them;
"LIQUID ASSETS" means as at any date, the aggregate (calculated on a
consolidated basis) of:
(pp) cash at bank and in hand in a jurisdiction where (if not the United
Kingdom) such amounts are freely transferable out of that jurisdiction
and convertible into currencies dealt in on the London foreign
exchange market;
(qq) short term deposits (the term of which has twelve months or less
remaining maturity) and money at call, with a recognised financial
institution;
(rr) certificates of deposit, from a recognised financial institution,
which are negotiable or, if not, the term of which has twelve months
or less remaining to maturity;
(ss) gilts or Treasuries or similar securities issued by or guaranteed by
the Government of any of the United Kingdom, The United States or any
Participating Member States;
(tt) deposits made with the Commissioners of Inland Revenue in respect of
which certificates of tax deposit have been issued by Her Majesty's
Treasury;
(uu) Sterling bills of exchange eligible for rediscount at the Bank of
England;
(vv) any other negotiable money market instrument with a maximum remaining
maturity of 12 months or less excluding commercial paper issued by any
person other than a state entity or a person with a credit rating of
AAA from Standard & Poor's or equivalent or a short term credit rating
of A1 or equivalent;
(ww) any obligation owing to a Group Company in respect of a securities
repurchase agreement by a counterparty which is rated AAA or
equivalent or has a short term credit rating of A1 or equivalent, or
in the absence of such a rating, where such obligation is backed by a
margin deposit substantially sufficient to make up for any shortfall
as between the ▇▇▇▇-to-market price of the underlying securities and
the amount owing;
provided that:
(i) where Liquid Assets are deposited subject to restrictions in
order that they are held as security for a liability or can be
offset against a liability, such Liquid Assets shall be taken
into account only to the extent that such liability is taken into
account under Consolidated Net Borrowings; and
(ii) when the aggregate amount of Liquid Assets required to be taken
into account for the purposes of this definition on any
particular day is being ascertained, any such Liquid Assets
24
denominated or repayable or in respect of which monies are
payable in a currency other than Sterling shall be converted for
the purposes of calculating the Sterling equivalent at the rate
of exchange prevailing on that day in London by taking the Spot
Rate as of 11.00 am on such date for the purchase of such
currency with Sterling;
"MAJORITY BANKS" means subject to clause 23.2 (Notice to Majority Banks) at
any relevant time, Banks:
(xx) the aggregate of whose Contributions to all the Facilities exceeds
66(2)/3 per cent. of the Total Contributions in respect of all the
Facilities; or
(yy) (if no principal amounts are outstanding under this Agreement) the
aggregate of whose Commitments in respect of all the Facilities
exceeds 66(2)/3 per cent. of the Total Commitments in respect of all
the Facilities but so that if at such time the Total Commitments in
respect of any Facility have been reduced to zero references to a
Bank's Commitment in relation to such Facility shall be construed as
amongst the Finance Parties (and not so as to give any rights to any
other person) as a reference to that Bank's Commitment in relation to
such Facility immediately prior to such reduction to zero;
"MANDATORY COST RATE" means, in relation to any period, a percentage
calculated for such period at an annual rate determined in accordance with
Schedule 4 (Calculation of Mandatory Cost Rate);
"MATERIAL ADVERSE EFFECT" is a reference to:
(zz) something having a material adverse effect on the ability of any
Obligor to perform its payment or Financial Covenant obligations under
any of the Finance Documents; or
(aaa) something (other than the Reservations) which results in any of the
Finance Documents not being legal, valid and binding on, or
enforceable in accordance with their terms against, any of the
Obligors in a manner and to an extent reasonably considered by the
Majority Banks to be materially adverse to the interests of the Banks;
"MATURITY DATE" means, in relation to any Revolving Advance, the last day
of the period for which that Revolving Advance is drawn down;
"MATURITY PERIOD" means, in relation to any Revolving Advance, the period
beginning on its Drawdown Date and ending on its Maturity Date;
"MONTH" or "MONTHS" means a period beginning in one calendar month and
ending in the relevant later calendar month on the day numerically
corresponding to the day of the calendar month in which it started,
provided that (a) if the period started on the last Banking Day in a
calendar month or if there is no such numerically corresponding day, it
shall end on the last Banking Day in such later calendar month and (b) if
such numerically corresponding day is not a Banking Day, the period shall
end on the next following Banking Day in such later calendar month but if
25
there is no such Banking Day it shall end on the preceding Banking Day and
"MONTHLY" shall be construed accordingly;
"NATIONAL CURRENCY UNIT" means the currency unit (other than a Euro Unit)
of a Participating Member State;
"NET INTEREST COSTS" means, in respect of any period, the aggregate of
(i) the amounts accruing during such period (whether or not paid or
payable within such period) in respect of interest, guarantee and
other ancillary facility fees, letter of credit commission and
fronting fees and commitment fees incurred by the Group (disregarding
any portion attributable to any minority interests in Subsidiaries,
other than the minority interest in ▇▇▇▇▇ 2) charged and amortised
under FRS4, including the interest equivalent element of Finance
Leases (but excluding any of the foregoing that are attributable to
Equity-Credit Preferred Securities); and
(ii) the amounts actually paid by any member of the Group (disregarding any
portion attributable to any minority interests in Subsidiaries, other
than the minority interest in ▇▇▇▇▇ 2) during such period by way of
(A) interest or distributions in respect of Equity-Credit Preferred
Securities and
(B) dividends or other distributions in respect of any shares of any
member of the Group (other than equity share capital)
beneficially owned by any person other than a member of the Group
(to the extent paid in respect of that period)
adjusted in each case by:
(bbb) excluding interest, fees or commission or the interest equivalent
element of Finance Leases accrued by or to members of the Group from
or to other members of the Group;
(ccc) deducting credit interest accrued during such period which would be
shown as interest receivable in the relevant accounts delivered under
clause 10.3 (Delivery of Financial Statements), as adjusted pursuant
to clause 11.2 (Change of Accounting Policies);
(ddd) excluding any nominal imputed interest charge that arises only as a
result of an accounting procedure;
(eee) adding amounts payable, and deducting amounts receivable, under
interest rate hedging transactions entered into by the Group from time
to time; and
(fff) deducting the amount of income accrued to any member of the Group in
respect of the actual or prospective repurchase by the counterparty of
securities under any such securities repurchase agreement as is
referred to in paragraph (h) of the definition of Liquid Assets
established by reference to the increase in price as between the
original sale and the repurchase;
"OBLIGOR" means the Borrower and any Guarantor;
"OPTIONAL CURRENCY" means any currency (other than Sterling) which is
freely transferable and freely convertible into Sterling;
26
"ORIGINAL FACILITIES AGREEMENT" means the agreement dated 2 March 1998 (as
subsequently re-stated) made between the Joint Lead Arrangers, the Facility
Agent, the Issuing Bank, the Primary Borrower and others providing for
facilities of (pound)3,625,000,000 for the purposes of the Acquisition;
"ORIGINAL GROUP ACCOUNTS" means the audited consolidated accounts of the
Target for the year ended 31 March 1998;
"OUTSTANDING CONTINGENT LIABILITIES" at any time under a Letter of Credit
means the face value of that Letter of Credit at that time in accordance
with its express provisions less:
(ggg) the aggregate amount of any cash cover (not including any cash cover
lodged by any Bank) held in relation to that Letter of Credit at that
time; and
(hhh) (save to the extent that this is taken into account in the express
provisions of that Letter of Credit or unless the context otherwise
requires) the aggregate of all payments made by the Issuing Bank,
pursuant to demands made under that Letter of Credit on or prior to
such time, for which it has been reimbursed by the relevant Borrower;
or such lesser amount as the Facility Agent and the Issuing Bank may agree
in good faith represents the maximum liability of the Issuing Bank in
respect thereof:
"PARENT" means TXU Corp. whose principal place of business is at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇;
"PARENT ACQUISITION DATE" shall mean the date as of which a person or group
of related persons first acquires more than 30% of the outstanding Voting
Shares of the Parent (within the meaning of section 13(d) or 14(d) of the
Securities Exchange Act of 1934 of the United States of America, as
amended, and the applicable rules and regulations thereunder);
"PARTICIPATING MEMBER STATE" means each state so described in any EMU
legislation;
"PERMITTED SECURITY INTEREST" means any of the following, namely a Security
Interest;
(iii) subsisting at the date of this Agreement and notified in writing to
the Facility Agent on or prior to that date or securing the amounts
outstanding under the Original Facilities Agreement, or arising
whether before, on or after the date of this Agreement by operation of
law in the ordinary course of business;
(jjj) over goods and/or documents of title thereto arising in the ordinary
course of letter of credit transactions;
(kkk) arising by way of retention of title to goods by the supplier of
those goods arising in the ordinary course of business;
(lll) created after the date hereof provided that the Indebtedness secured
thereby, when aggregated with any other Indebtedness secured by any
subsisting Security Interest permitted by (and only by) this paragraph
(d) whether or not such Indebtedness is in respect of any member of
27
the Group, does not at any time exceed an amount equal to 15 per cent.
of Adjusted Share Capital and Reserves;
(mmm) created after the date hereof securing Borrowed Money which is
refinanced by a Project Finance Borrowing within 6 months of the date
of such Security Interest's creation, provided that:
(i) at any one time Borrowed Money permitted to be secured under this
clause (e) shall not exceed(pound)200,000,000, or its equivalent
in any other currency; and
(ii) the Primary Borrower shall have notified the Facility Agent on or
before the creation of such Security Interest that the related
Borrowed Money is intended to be temporary bridging finance
pending refinancing by a Project Finance Borrowing;
(nnn) existing on or created after the date hereof (i) to secure a Project
Finance Borrowing and/or (ii) over an asset and/or the shares of a
Project Finance Subsidiary;
(ooo) over or affecting any asset acquired by a member of the Group after
the date hereof and subject to which such asset is acquired, provided
that:
(i) such Security Interest was not created at the request of any
member of the Group in contemplation of the acquisition of such
asset by a member of the Group; and
(ii) the amount thereby secured (or the amount of the facility,
drawings under which are or would be thereby secured) has not
been increased at the request of any member of the Group in
contemplation of, or since the date of, the acquisition of such
asset by a member of the Group; or
(ppp) over or affecting any assets of any company which became or becomes a
member of the Group after the date hereof, where such Security
Interest is created prior to the date on which such company became or
becomes a member of the Group provided that:
(i) such Security Interest was not created at the request of any
member of the Group in contemplation of such company becoming a
member of the Group; and
(ii) the amount thereby secured (or the amount of the facility,
drawings under which are or would be thereby secured) has not
been increased at the request of any member of the Group in
contemplation of, or since the date of, such company becoming a
member of the Group; or
(qqq) created after the date hereof with the prior written consent of the
Facility Agent (acting in accordance with the instructions of the
Majority Banks) provided that the amount thereby secured (or the
28
amount of the facility, drawings under which are or would be thereby
secured) has not been increased beyond the amount so consented to; or
(rrr) any order of a court affecting any asset or assets of a member of the
Group to the extent that such order is discharged within 28 days after
it is made and the consequences thereof would not constitute an Event
of Default; or
(sss) created or arising to secure any Indebtedness incurred and applied in
or towards the refinancing of any Indebtedness secured by a Permitted
Security Interest as permitted by paragraphs (a), (g), (h), (i) or (m)
of this definition but only to the extent that:
(i) the amount of the Indebtedness secured by such Security Interest
(or, if higher, the amount of the facility, drawings under which
are or would be thereby secured) does not exceed the amount
secured by such Permitted Security Interest at the date of the
refinancing; and
(ii) the amount secured by such Permitted Security Interest is thereby
reduced by an amount equal to the amount secured by such Security
Interest; and
(iii) the assets on which the Indebtedness secured by the Security
Interest referred to in sub-paragraph (i) of this paragraph (k)
are substantially the same as (or only some of) the assets on
which the refinanced Indebtedness was secured by the Permitted
Security Interest referred to in sub-paragraph (ii);
(ttt) consisting of a contractual right (in personam and not in rem)
restricting the payment of:
(i) cash deposits made by way of support of counter-indemnity
obligations of a member of the Group in respect of guarantees
given or analogous contingent liabilities incurred by the holder
of such cash deposits for the account of a member of the Group;
and/or
(ii) credit balances on bank accounts as part of general Group banking
arrangements having as their intention or effect the netting of
exposure of the bank to members of the Group; or
(uuu) over any asset acquired by a member of the Group after the date of
this Agreement as security for Indebtedness incurred to finance or
refinance (within 6 months of the acquisition) all or part of the
consideration for the acquisition of that asset, provided that the
Indebtedness secured by Security Interests under this paragraph (m)
and, to the extent it refinances Indebtedness secured under this
paragraph (m), paragraph (k), shall not exceed (pound)1,000,000 in
aggregate at any time; or
(vvv) arising under the terms of Derivatives Transactions or as a result of
trading of shares or other securities where such Security Interest
arises under the rules of the relevant exchange or clearing system;
29
(www) arising as a result of the Primary Borrower or any of its
Subsidiaries, or Subsidiary Undertakings acting as a paying agent in
respect of any Equity-Credit Preferred Securities;
"PES LICENCE" means the licence granted to REC by the Secretary of State
under Section 6 of the Electricity Act authorising REC to distribute and/or
supply electricity within an authorised area to the public, or any
additional or replacement licence(s) for the supply and/or distribution of
electricity granted from time to time to any member of the Group (or, if
more than one replacement, the most recent such replacement), each as
amended or modified from time to time;
"POOLING AND SETTLEMENT AGREEMENT" means the pooling and settlement
agreement dated 30 March 1990 made between REC and the National Grid
Company Plc and others setting out the rules and procedures for the
operation of an electricity trading pool and of a settlement system in
England and Wales and any agreement replacing such pooling and settlement
agreement from time to time;
"PRINCIPAL SUBSIDIARY" means:
(xxx) any member of the Group whose unconsolidated net assets or pre-tax
profit at the date of, or for, any period ending after the date of
this Agreement, equals or exceeds 10 per cent of the net assets or
pre-tax profit of the Group at that time or for that period, and,
during any financial year, such other members of the Group as may be
named in the notification provided to the Agent by the Primary
Borrower pursuant to clause 10.3(b)(i) (Unaudited management
accounts), and for the purpose of the above:
(i) the net assets or pre-tax profit of the Group shall be
ascertained by reference to the latest audited consolidated
accounts of the Group; and
(ii) the net assets or pre-tax profit of any such member shall be
ascertained by reference to the latest audited accounts of that
Subsidiary;
for the purposes of the above, "NET ASSETS" in respect of the Group or
any such member means the fixed assets and current assets of the Group
or that member (as the case may be) but excluding investments in any
Subsidiary and any loan to another member of the Group; or
(yyy) a member of the Group to which has been transferred (whether by one
transaction or a series of transactions, related or not) the whole or
a material part of the business, undertaking or assets of a Subsidiary
which immediately prior to those transactions was a Principal
Subsidiary provided that it shall not continue by operation of this
paragraph (b) to be a Principal Subsidiary after the delivery to the
Facility Agent of the accounts referred to in (a) above covering the
period in which the transfer occurred, if:
(i) the transferor was and continues to be a Principal Subsidiary by
virtue of paragraph (a) above or was a Principal Subsidiary only
by virtue of paragraph (c) below; and
30
(ii) where the transferor was a Licensee, it continues to be a
Licensee; or
any member of the Group which is a holding company, directly or indirectly,
of a Principal Subsidiary;
"PROJECT" means any project or investment (these terms being treated as
including a series of related projects or investments and any modifications
thereto or developments or expansions of such projects or investments);
"PROJECT FINANCE BORROWINGS" means, at any date, any Indebtedness to
finance or refinance, or in respect of the financing or refinancing of, a
Project:
(zzz) which is or has been incurred by a single purpose company (whether or
not a Subsidiary of the Primary Borrower) whose principal assets and
business are, at such date, constituted by such Project and whose
liabilities in respect of such Indebtedness are, at such date, not
directly or indirectly the subject of a guarantee, indemnity or other
form of assurance, undertaking or support (having substantially
similar effect to a guarantee or indemnity) from any member of the
Group except as expressly referred to in paragraph (c) below (a
"PROJECT FINANCE SUBSIDIARY"); or
(aaaa) which is or has been incurred by a Subsidiary of the Primary
Borrower in its capacity as a partner in, and whose only material
asset is its interest in, a single purpose partnership where the
partnership's principal assets and business are, at that date,
constituted by such Project and where the liabilities of such
Subsidiary in respect of such Indebtedness are not, at that date,
directly or indirectly the subject of a guarantee, indemnity or other
form of assurance, undertaking or support (having substantially
similar effect to a guarantee or indemnity) from any member of the
Group except as expressly referred to in paragraph (c) below (also a
"PROJECT FINANCE SUBSIDIARY"); or
(bbbb) inrespect of which the person or persons to whom such Indebtedness
is or may be owed by the obligor in respect of such Indebtedness
(whether or not a Subsidiary of the Primary Borrower) have no recourse
whatsoever to any member of the Group (whether or not the obligor) for
the repayment of or payment of any sum relating to such Indebtedness
other than:
(i) recourse to such obligor for amounts limited to the aggregate
cash flow or net cash flow received or receivable by it (other
than historic cash flow or historic net cash flow) from such
Project; and/or
(ii) recourse to such obligor for the purpose only of enabling amounts
to be claimed in respect of such Indebtedness in an enforcement
of any Security Interest given by such obligor over the assets
comprised in such Project (or, where such obligor is a single
purpose company or a Subsidiary of the Primary Borrower as
described in sub-clause (b), given by any shareholder or the like
in the obligor over its shares or the like in the capital of the
obligor) to secure such Indebtedness or any recourse referred to
31
in (iii) below, Provided that (A) the extent of such recourse to
such obligor (or its shareholder or the like) is limited solely
to the amount of any recoveries made on such enforcement, and (B)
such person or persons are not entitled, by virtue of any right
or claim arising out of or in connection with such Indebtedness,
to commence proceedings for the winding up or dissolution of the
obligor (or its shareholder or the like) or to appoint or procure
the appointment of any administrator, receiver, administrative
receiver, trustee or similar person or official in respect of the
obligor (or its shareholder or the like) or any of its assets
(save for the assets the subject of such Security Interest);
and/or
(iii) recourse to such obligor generally, or directly or indirectly to
a member of the Group, under any form of assurance, undertaking
or support, which recourse is limited to a claim for damages
(other than liquidated damages and damages required to be
calculated in a specified way) for breach of an obligation (not
being a payment obligation or an obligation to procure payment by
another or an obligation to comply or procure compliance by
another with any financial ratios or other tests of financial
condition) by the person against whom such recourse is available.
For the purpose of each of paragraphs (a), (b) and (c) of this definition:
(aa) an off-take agreement entered into between a Group Company and a
Project Finance Subsidiary, or an obligor in respect of Project
Finance Borrowing described in paragraph (c), which is on arms length
terms shall not of itself be deemed to be a guarantee, indemnity or
other form of assurance, undertaking or support or to involve
liability or recourse; and
(bb) any right of recourse against a member of the Group as a result of its
shareholding in an unlimited company, partnership or similar entity
will be deemed to be a guarantee, indemnity or other form of
assurance, undertaking or support (having substantially similar effect
to a guarantee or indemnity);
"PROJECT FINANCE SUBSIDIARY" has the meaning set out in paragraph (a) or
(b) of the definition of Project Finance Borrowing and also means any
Subsidiary of any such person;
"PROPORTION" means, in relation to a Bank, the proportion borne by its
Commitment to the Total Commitments (or, if the Total Commitments are then
zero, by its Commitment to the Total Commitments immediately prior to their
reduction to zero);
"QUALIFYING BANK" means:
(cccc) a person which:
(i) is a bank within the meaning of Section 840A of the Income and
Corporation Taxes ▇▇▇ ▇▇▇▇; and
(ii) is or will (on becoming a Bank) be beneficially entitled to any
interest paid and to be paid to it (as a Bank) under this
Agreement; and
32
(iii) is within the charge to United Kingdom corporation tax as
respects such interest,
except that, if Section 349 or Section 840A of the Income and
Corporation Taxes Act 1988 is repealed, modified, extended or
re-enacted, the Facility Agent may at any time and from time to time
(after consultation with the Primary Borrower and the Banks) amend
this paragraph (a) in such manner as it may determine acting
reasonably to be appropriate by giving notice of the amended paragraph
(a) to the Primary Borrower and the Banks so as, so far as
practicable, to put the Banks in the same position as they would
otherwise have been in; or
(dddd) a Treaty Lender;
"QUALIFYING PREFERENCE SHARES" means on any date preference shares of any
member of the Group expressed (whether by law, agreement or otherwise) to
be redeemable at the option of the issuer, any other person or otherwise on
or before the Final Repayment Date;
"QUARTER" means each three-month period ending on the last day in March,
June, September and December in each year;
"QUARTER DATE" means the final day of each Quarter;
"QUOTATION DATE" means, in relation to an Interest Period, Maturity Period
or other period for which LIBOR is to be determined:
(eeee) the first day of such period if the Advance is in Sterling;
(ffff) the second Banking Day before the first day of such period (or such
other date on which quotations would customarily be provided by
leading banks in the London interbank market for deposits in the
relevant currency for delivery on the first day of such period), if
the Advance is in an Optional Currency;
"REC" means Eastern Electricity plc (company no. 2366906 or any successor
as the Licensee in respect of the Distribution Business);
"RECOVERING BANK" has the meaning given to that term in clause 15.2
(Pro-rata payments);
"REFERENCE BANKS" means The Chase Manhattan Bank and any two other banks
selected by the Facility Agent with the consent of the Primary Borrower
(which is not to be unreasonably withheld), or if any of them ceases to so
act, such other bank or banks as shall be selected by the Facility Agent in
accordance with clause 23.7 (Change of Reference Banks);
"RELATED PERSONS" each of the Facility Agent, the Issuing Bank, any
successor Facility Agent or Issuing Bank arising under clause 17 (Facility
Agent) and the Arrangers, together with their respective Affiliates and the
officers, directors, employees, agents, trustees and attorneys-in-fact of
such persons and Affiliates;
"RELEVANT COMPANY" means any of the Obligors, ▇▇▇▇▇ 2, Bidco, The Energy
Group Limited (company no. 3613919) and the Principal Subsidiaries;
33
"RELEVANT PERSON" means the Parent and any Affiliate or Associated Company
of the Parent which is neither the Primary Borrower nor a member of the
Group nor a Project Finance Subsidiary;
"RESERVATIONS" means (a) the principle that equitable remedies may be
granted or refused at the discretion of the court, (b) the limitation on
enforcement by laws of general application relating to insolvency,
liquidation, reorganisation, court schemes or administration, and (c) the
time barring of claims under the Limitation ▇▇▇ ▇▇▇▇;
"RESTATEMENT AGREEMENT" means the amendment and restatement agreement dated
23rd August, 2000 between, among others, the parties to this Agreement,
under which this Agreement was amended and restated;
"REVOLVING ADVANCE" means each borrowing made or to be made by way of an
advance under the Revolving Credit Facility or (as the context requires)
the principal amount of that borrowing outstanding at any relevant time;
"REVOLVING CREDIT FACILITY" means the facility granted by the Banks to the
Borrower in accordance with clause 2.1(b) (The Facilities);
"SECOND-TIER SUPPLY BUSINESS" has the same meaning as in the PES Licence;
"SECRETARY OF STATE" means the Secretary of State for Trade and Industry
from time to time or his/her successor or such other person as may for the
time being be fulfilling the functions of the Secretary of State under the
Electricity Act or the Gas Acts;
"SECURITY INTEREST" means any mortgage, pledge, lien, charge, assignment by
way of security, deposit of cash subject to contractual restrictions on
re-drawing, arrangement for retention of title, hypothecation or security
interest, or any other agreement or arrangement having the effect of
conferring security or a security interest;
"SPOT RATE" means, in respect of any sum denominated in any currency other
than Sterling, the Facility Agent's spot rate of exchange for purchase of
that sum in that currency in the London foreign exchange market with
Sterling at or about 11.00 am on a particular day;
"SPV" means any company or other entity directly or indirectly wholly-owned
by the Primary Borrower, incorporated or otherwise established, and used,
solely for the purpose of issuing one or more capital market instruments or
other securities for the purpose of raising finance on behalf of the Group,
and, if applicable, carrying out all functions falling to be carried out by
it under a securitisation or other financing arrangement for which it was
established;
"STERLING" and "(POUND)" mean the lawful currency for the time being of the
United Kingdom and in respect of all payments to be made under this
Agreement in Sterling mean immediately available, freely transferable
cleared funds;
"STERLING AMOUNT" means:
(gggg) inrespect of Outstanding Contingent Liabilities, the sum of the
amount in Sterling of the Outstanding Contingent Liabilities under
Letters of Credit denominated in Sterling and the amount of Sterling
34
required to purchase the currency amount of the Outstanding Contingent
Liabilities under Letters of Credit denominated in each other currency
at the Spot Rate at the relevant time and so that such Sterling Amount
shall be recalculated by the Facility Agent:
(i) in any event, on every Quarter Date; and
(ii) on each date on which the Majority Banks request the Facility
Agent to do so in accordance with the provisions of clause 4.11
(Currency Fluctuations),
and the recalculated amount shall thereupon and until the next
recalculation required by this Agreement constitute the Sterling
Amount of Outstanding Contingent Liabilities under any Letters of
Credit for all purposes of this Agreement;
(hhhh) inrespect of each Advance, if such Advance is denominated in
Sterling, the amount of the Advance requested in the Drawdown Notice
relating to the Advance, or, in the case of an Advance denominated in
an Optional Currency the amount of Sterling required to purchase such
amount calculated at the Spot Rate on the Quotation Date in each case
as reduced by the amount (if any) of such Advance which has been
repaid;
"SUBORDINATED DEBT" means Indebtedness incurred on terms which to the
reasonable satisfaction of the Facility Agent:
(iiii) prohibit repayment or prepayment of any principal amounts (including
capitalised interest) during the Finance Period;
(jjjj) prohibit the holder of that Indebtedness from exercising any rights
or remedies which it might otherwise have to recover such Indebtedness
during the Finance Period; and
(kkkk) provide that in the event of insolvency, dissolution, liquidation or
other insolvency proceedings such Indebtedness shall be effectively
subordinated in right of payment to all liabilities of the Obligors
under the Finance Documents;
"SUBSIDIARY" means:
(llll) a subsidiary within the meaning of section 736 of the Act; and
(mmmm) where the context requires or admits, and without limitation for the
purposes of the definitions of "AFFILIATE", "EQUITY CREDIT PREFERRED
SECURITIES" and "GROUP" and clauses 10.2 (Preparation of Financial
Statements), 11.1 (Financial Ratios), 11.2 (Change of Accounting
policies), 20.7 (Pre-contractual effect of exoneration) and Schedule 6
(Form of Accession Certificate), a subsidiary undertaking within the
meaning of section 258 of the Act (a "SUBSIDIARY UNDERTAKING");
"SUBSTITUTE" has the meaning given to that term in clause 16.3
(Substitution);
"SUBSTITUTION CERTIFICATE" means a certificate substantially in the terms
of Schedule 5 (Form of Substitution Certificate);
35
"SUPPLY BUSINESS" means, in the case of a Licensee under the PES Licence,
its authorised business as a public electricity supplier in the authorised
area as such terms are used in its PES Licence from time to time;
"TARGET" means the company formerly known as The Energy Group PLC (company
no. 3257256) and subsequently re-named as Energy Holdings (No.3) Limited;
"TARGET SHARES" means the issued and to be issued shares in the capital of
the Target;
"TAXES" includes all present and future taxes, levies, imposts, duties,
fees or charges of whatever nature including without limitation any
interest or penalties payable in connection with any failure or delay in
paying any of the same and "TAXATION" shall be construed accordingly;
"TERM ADVANCE" means each borrowing under the Term Facility or (as the
context requires) the principal amount of that borrowing outstanding at any
relevant time;
"TERM FACILITY" means the facility granted by the Banks under clause 2.1(a)
(The Facilities);
"TEST PERIOD" means:
(nnnn) each twelve-month period ending on the last day of each Quarter; and
(oooo) each accounting reference period (as defined in Part VIII of the
Companies Act 1985) of the Primary Borrower or, where it applies to
the Leverage Ratio, ▇▇▇▇▇ 2, ending on 31 December in each year;
"TOTAL COMMITMENTS" means, in respect of a Facility or (as the context
requires) the Facilities at any relevant time, and save as otherwise
provided herein, the total of the Commitments of all the Banks in respect
of such Facility or Facilities (as appropriate) at such time;
"TOTAL CONTRIBUTIONS" means, in respect of any Facility or (as the context
requires) the Facilities at any relevant time, the total of the
Contributions of all the Banks in respect of such Facility or Facilities
(as appropriate) at such time;
"TREATY LENDER" means a person which (a) is resident (as such term is
defined in the appropriate double taxation treaty) in a country with which
the United Kingdom has a double taxation treaty giving residents of that
country complete exemption from the imposition of any withholding or
deduction for or on account of United Kingdom Taxes on interest; and (b)
does not carry on business in the United Kingdom through a permanent
establishment with which the Indebtedness under this Agreement in respect
of which the interest is paid is effectively connected;
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of 25 March 1957, as
amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty (which
was signed at Maastricht on 1 February 1992 and came into force on 1
November 1993), as amended from time to time;
"UTILISATION" means the making of an Advance or the Issue of a Letter of
Credit; and
36
"VOTING SHARES" means outstanding shares of capital stock of any class of
the Parent entitled to vote in the election of directors, excluding shares
entitled so to vote only upon the happening of some contingency.
2.3 HEADINGS
Clause headings and the table of contents are inserted for convenience of
reference only and shall be ignored in the interpretation of this
Agreement.
2.4 CONSTRUCTION OF CERTAIN TERMS
In this Agreement, unless the context otherwise requires:
(a) references to clauses and schedules are to be construed as references
to the clauses of, and schedules to, this Agreement and references to
this Agreement include its schedules;
(b) references to (or to any specified provision of) this Agreement or any
other document shall be construed as references to this Agreement
(including any Accession Certificate and Substitution Certificate),
that provision or that document as in force for the time being and as
from time to time amended, novated or supplemented in accordance with
its terms, or, as the case may be, with the agreement of the relevant
parties and (where such consent is, by the terms of this Agreement or
the relevant document, required to be obtained as a condition to such
amendment being permitted) the prior written consent of the Facility
Agent;
(c) references to a "REGULATION" include any present or future regulation,
rule, directive, requirement, request or guideline (whether or not
having the force of law) of any Government Entity;
(d) references to an "AUTHORISATION" mean and include any consent,
authorisation, licence, approval and permit;
(e) words importing the plural shall include the singular and vice versa;
(f) references to a time of day are to London time;
(g) references to a "PERSON" includes any individual, firm, company,
corporation, government, state or agency of a state or any
unincorporated body of persons, undertaking (within the meaning of
Section 259(1) of the Act) or other joint venture, organisation or
association (whether or not having separate legal personality) or any
two or more of the foregoing;
(h) references to "ASSETS" include all or part of any business,
undertaking, real property, personal property, shareholdings, assets,
revenues, uncalled capital and any rights (whether actual or
contingent, present or future) to receive, or require delivery of, any
of the foregoing;
(i) references to the "EQUIVALENT" of an amount specified in a particular
currency (the "SPECIFIED CURRENCY AMOUNT") shall be construed as a
reference to the amount of the other relevant currency which can be
purchased with the specified currency amount at the Spot Rate on the
37
day on which the calculation falls to be made for spot delivery, as
conclusively determined by the Facility Agent;
(j) references to any enactment shall be deemed to include references to
such enactment as re-enacted, amended or extended;
(k) references to documents being in the "AGREED FORM" mean documents
initialled on behalf of the Facility Agent and the Arrangers and on
behalf of the Obligors, or if there is no such document, the form
reasonably required by the Facility Agent;
(l) references to "VAT" are to be construed as including references to any
similar Tax;
(m) "INCLUDING" and "IN PARTICULAR" shall not be construed restrictively
but shall mean "including, without prejudice to the generality of the
foregoing" and "in particular, but without prejudice to the generality
of the foregoing" respectively;
(n) references to documents being "CERTIFIED COPIES" mean copies certified
as being true, complete and up-to-date copies as of a date no earlier
than the date of this Agreement by an officer of the Primary Borrower
who is at such time duly authorised to execute or certify such
documents on behalf of the Primary Borrower;
(o) "ARMS LENGTH TERMS" means on terms which are no more or less
favourable to the other party to the relevant transaction than could
reasonably be expected to be obtained in a comparable transaction with
a person unconnected with the Group;
(p) references to "HOLDING COMPANY", save as otherwise defined, shall bear
the same meaning as in section 736 of the Act, as if extended to
bodies corporate wherever incorporated;
(q) a Letter of Credit being "REPAID" or "PREPAID" is effected by:
(i) providing the Issuing Bank with cash cover in the currency in
which that Letter of Credit is denominated;
(ii) reducing (in accordance with the terms of this Agreement and the
relevant Letter of Credit) the amount that may be demanded under
that Letter of Credit (or by such amount automatically reducing
in accordance with the terms of the relevant Letter of Credit);
or
(iii) cancelling that Letter of Credit by returning the original to
the Issuing Bank together with written confirmation (in form and
substance satisfactory to the Issuing Bank) from the beneficiary
that the Issuing Bank has no further liability under that Letter
of Credit;
(r) any provision of this Agreement stated to have effect on, after, or as
from, 1 January 1999 will, to the extent that the provision relates to
any currency of a state which is not a Participating Member State on 1
January 1999, have effect in relation to that currency on the date on
which it becomes a Participating Member State;
38
(s) unless the context requires otherwise, expressions defined in the Act
shall have the same meanings in this Agreement, except that the
expression "COMPANY" shall include a body corporate established
outside Great Britain;
(t) "ASSOCIATED COMPANY" shall have the meaning given to it in the
Appropriate Accounting Principles;
(u) references to a "WHOLLY-OWNED" or "PARTLY-OWNED" member of the Group
or Subsidiary of the Primary Borrower shall be construed: (i) to refer
to Subsidiaries whether directly or indirectly owned by the Primary
Borrower; and (ii) on the assumption that the Primary Borrower owns
100% of ▇▇▇▇▇ 2; and
(v) for the avoidance of doubt, neither a lease nor a Finance Lease
entered into on arm's length terms shall be regarded as an agreement
or arrangement having the effect of conferring security or a security
interest.
3. THE COMMITMENTS
3.1 THE FACILITIES
The Banks, relying upon each of the representations and warranties in
clause 9 (Representations and Warranties) and upon and subject to the
conditions hereof, agree to make available:
(a) to the Primary Borrower, the Term Facility in the principal sum
of(pound)750,000,000;
(b) to the Primary Borrower the Revolving Credit Facility in the principal
sum of(pound)325,000,000.
The obligations of each Bank under this Agreement shall be to participate
in each Advance in the proportion which its Commitment in respect of the
Term Facility or the Revolving Credit Facility, as the case may be, bears
to the Total Commitments in respect of the Term Facility or the Revolving
Credit Facility but so that no Bank shall be under any obligation to
participate in an Advance if and to the extent its Commitment in respect of
the Term Facility or the Revolving Credit Facility would thereby be
exceeded.
3.2 FINANCE PARTIES' OBLIGATIONS SEVERAL
The obligations of each Finance Party under this Agreement are several; the
failure of any Finance Party to perform such obligations shall not relieve
any other Finance Party or any Obligor of any of their respective
obligations or liabilities under this Agreement nor shall any Finance Party
be responsible for the obligations of any other Finance Party under this
Agreement.
3.3 FINANCE PARTIES' INTERESTS SEVERAL
Notwithstanding any other term of this Agreement (but without prejudice to
the provisions of this Agreement relating to or requiring action by the
Majority Banks) the interests of the Finance Parties are several and the
amount due to each of the Finance Parties (for its own account) is a
separate and independent debt. Without prejudice to any other provision of
39
this Agreement (including any requirement for action to be approved or
instigated by, or with the consent or approval of, the Majority Banks) each
of the Finance Parties shall have the right to protect and enforce its
rights in respect of amounts which have become due and payable to it under
this Agreement and it shall not be necessary for any other Finance Party to
be joined as an additional party in any proceedings for this purpose.
4. THE CONDITIONS
3.1 GENERAL CONDITIONS PRECEDENT
Subject to clause 3.2 (Waiver of conditions precedent), in respect of each
Facility, the obligation of each Bank to contribute to a Utilisation is
subject to the further conditions that at the date of each Drawdown Notice
and on each Drawdown Date:
(a) the applicable representations and warranties set out in clause 9
(Representations and Warranties) are true and correct on and as of
each such date as if each such representation and warranty were made
with respect to the facts and circumstances existing at such date; and
(b) no Default shall have occurred and be continuing (which has not been
waived) or would result from the making of such Utilisation, but this
clause 3.1(b) shall not prevent the rollover of an existing Revolving
Credit Advance (without increasing the amount thereof) for a Maturity
Period of no more than one month at any time when no Event of Default
has occurred and is continuing (which has not been waived).
3.2 WAIVER OF CONDITIONS PRECEDENT
The conditions specified in this clause 3 (The Conditions) are inserted
solely for the benefit of the Banks and may be waived on their behalf in
whole or in part and with or without conditions by the Facility Agent
acting on the instructions of the Majority Banks in respect of any Advance.
5. ADVANCES AND LETTERS OF CREDIT
5.1 TERM FACILITY
The Borrower acknowledges that, as at the Effective Date, Term Advances
with an aggregate Sterling Amount of (pound)750,000,000 are outstanding
under this Agreement.
5.2 REVOLVING CREDIT FACILITY
(a) DRAWDOWN
Subject to the terms and conditions of this Agreement, Revolving
Advances shall be made to any Borrower following receipt by the
Facility Agent from such Borrower of an appropriately completed
Drawdown Notice relating to the Revolving Credit Facility and in the
form set out in Part A of Schedule 2 (Revolving Credit Facility)
signed on behalf of that Borrower not later than 11 a.m. two Banking
40
Days, or, in the case of non-sterling Advances, 3 p.m. three Banking
Days before the proposed Drawdown Date.
(b) AMOUNT
Each Drawdown Notice delivered to the Facility Agent pursuant to
clause 4.2(a) (Drawdown) shall be irrevocable and shall specify:
(i) the proposed Drawdown Date, which shall be a Banking Day falling
prior to the Available Commitment Termination Date of the
Revolving Credit Facility;
(ii) the currency of denomination of the Advance (being Sterling or an
Optional Currency);
(iii) the amount of the Revolving Advance, which shall be of
(pound)10,000,000 or any larger sum which is an integral multiple
of (pound)5,000,000 (or if such Advance is to be denominated in
an Optional Currency, an integral multiple of 1,000,000 of the
largest currency unit of that Optional Currency but in an amount
at least the equivalent of (pound)5,000,000) or, if less, the
Available Amount on the relevant Drawdown Date;
(iv) the Maturity Period which shall be of 1, 2, 3 or 6 months (or
such other period as the Facility Agent, acting on the
instructions of the Majority Banks, shall agree) ending not later
than the Final Repayment Date;
(v) the account to which the proceeds of the proposed Advance are to
be paid.
(c) NUMBER OF ADVANCES
There shall be no more than 15 Revolving Advances outstanding at any
time, and not more than one Revolving Advance may be made under the
Revolving Credit Facility in any period of 5 consecutive Banking Days.
(d) CALCULATION OF AVAILABLE COMMITMENT
For the purpose of calculating the Available Commitment, the
Outstanding Contingent Liabilities under a Letter of Credit will
initially be its Sterling Amount on the Issue Date, subject to
recalculation by the Facility Agent in accordance with the definition
of "Sterling Amount" and clause 4.11 (Currency fluctuations).
(e) CANCELLATION ON THE AVAILABLE COMMITMENT TERMINATION DATE
Without prejudice to any other provision of this Agreement, the Total
Commitments under the Revolving Credit Facility shall in any event be
reduced to zero on the Available Commitment Termination Date of the
Revolving Credit Facility and no Advance may be drawn by any Borrower
under that Facility thereafter.
(f) NETTING
if, on any Maturity Date, a Bank is required to provide another
Revolving Credit Advance to the same Borrower in the same currency,
the Facility Agent shall apply the amount which that Bank is required
to make available in respect of the new Revolving Credit Advance in or
towards the repayment (or, if it is a different currency, the purchase
of the relevant currency required for the repayment) for the account
41
of the relevant Borrower of the amount of the Revolving Credit Advance
(in its currency of denomination) which is then due to be repaid to
that Bank. Any difference between the amount which is due to that Bank
and the amount which that Bank is required to make available on that
Maturity Date shall remain payable by the relevant Borrower or that
Bank, as the case may be.
5.3 UTILISATIONS GENERALLY
(a) A Drawdown Notice (or notice purporting to be such) shall only be
effective if it complies with this Agreement and only upon actual
receipt by the Facility Agent and, once given, shall be irrevocable.
(b) As soon as practicable after receipt of each Drawdown Notice complying
with this Agreement the Facility Agent shall notify each Bank of such
receipt and of the date on which the proposed Advance is to be made
and of the relevant Interest Period or, as the case may be, the
relevant Maturity Period and each Bank shall on such Drawdown Date or,
the case may be, on the first day of the relevant Interest Period
participate in such Advance by making available to the Facility Agent
its portion of such Advance in accordance with clause 8.2 (Payments by
the Banks or by Obligors).
(c) For the purpose of calculating the Available Amount, the amount of any
Advance outstanding in an Optional Currency shall be its Sterling
Amount. Where an Advance denominated in an Optional Currency is to be
repaid and a new Advance denominated in the same Optional Currency is
to be drawn down on the same day, the currency amounts to be repaid
and re-drawn may be netted off, and the Sterling Amount of the new
Advance and the Available Amount which can be drawn on that day will
be recalculated accordingly.
(d) The Primary Borrower shall not be entitled to utilise the Revolving
Credit Facility except that:
(i) subject to paragraph 4.3(d)(ii), the Primary Borrower may draw
down Revolving Advances (including Revolving Advances to finance
payment to the holders of loan notes issued pursuant to the
Acquisition if and when such holders require redemption of those
loan notes) if and to the extent that it shall immediately
on-lend the amount thereof to other members of the Group by means
of the Primary Borrower first lending the relevant amount to
▇▇▇▇▇ 2; and
(ii) the Primary Borrower may draw down Revolving Advances otherwise
than in compliance with clause 4.3(d)(i) above only up to an
aggregate amount outstanding at any time of (pound)30,000,000.
5.4 APPLICATION OF PROCEEDS
None of the Finance Parties shall have any responsibility for the
application of the proceeds of any Advance by any Borrower.
42
5.5 ISSUE OF LETTERS OF CREDIT
Subject to the provisions of this Agreement, the Issuing Bank will Issue a
Letter of Credit specified in a Drawdown Notice at the request of any
Borrower, if the Facility Agent has received the Drawdown Notice for a
Letter of Credit in the form set out in Part B of Schedule 2 (Letters of
Credit) signed on behalf of that Borrower not later than 11.00 am five
Banking Days prior to the proposed Issue Date and:
(a) the proposed Issue Date is a Banking Day on or before the Final
Repayment Date of the Revolving Credit Facility;
(b) the face value of each Letter of Credit is or is equivalent to a
minimum Sterling Amount of(pound)1,000,000;
(c) the Expiry Date falls on or before the earlier of (i) 12 months from
the Issue Date or (ii) the Final Repayment Date of the Revolving
Credit Facility;
(d) the Issuing Bank and (if different) the Facility Agent have agreed its
terms;
(e) the Sterling Amount of the Letter of Credit requested does not exceed
the Available Amount in respect of the Revolving Credit Facility;
(f) after such Issue, there will be no more than ten Letters of Credit
outstanding;
(g) no order, judgment or decree of any Government Entity or arbitrator
shall be outstanding which by its terms purports to enjoin or restrain
the Issuing Bank from Issuing such Letter of Credit, nor shall any
requirement of law applicable to the Issuing Bank or any request or
directive (whether or not having the force of law) from any
Governmental Entity with jurisdiction over the Issuing Bank prohibit,
or request that the Issuing Bank refrain from, the Issuance of Letters
of Credit generally or such Letter of Credit in particular or shall
impose upon the Issuing Bank with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the Issuing
Bank is not otherwise compensated hereunder and which is not in effect
on the date of this Agreement), or shall impose upon the Issuing Bank
any unreimbursed loss, cost or expense which was not applicable on the
date of this Agreement and which the Issuing Bank in good ▇▇▇▇▇ ▇▇▇▇▇
material to it;
(h) the currency in which the relevant Letter of Credit is to be
denominated is, in the opinion of the Issuing Bank, not likely to be
subject to undue fluctuation against Sterling and is likely to be
freely convertible and available in sufficient amounts to enable the
Issuing Bank to discharge its obligations as they fall due;
(i) the Issuing Bank has approved (and been approved by) the relevant
beneficiary; and
(j) the total Sterling Amount of all Outstanding Contingent Liabilities
under all Letters of Credit then outstanding would not exceed
(pound)400,000,000.
43
5.6 LETTERS OF CREDIT
(a) ISSUING BANK AS PRINCIPAL: the Issuing Bank will act as principal of
each Letter of Credit Issued by it and each Bank will
counter-indemnify the Issuing Bank in respect of the Outstanding
Contingent Liabilities thereunder in the relevant Proportion;
(b) OBLIGORS' AUTHORISATION AND INDEMNITY: each Obligor unconditionally
and irrevocably:
(i) authorises the Issuing Bank to comply with any demand which
appears to be duly made by a third party in respect of a Letter
of Credit without any further reference to the relevant Borrower
on the terms set out in Schedule 7 (Terms of Borrowers'
Indemnity);
(ii) agrees that its authorisation under clause 4.6(b)(i) and its
indemnity referred to in clauses 4.6(b)(iii) and 4.6(b)(iv) shall
remain in full force and effect and shall not be discharged until
such date as the Facility Agent (acting on the instructions of
the Issuing Bank) shall notify the relevant Borrower that it is
satisfied (acting reasonably) that the Issuing Bank remains under
no liability (actual or contingent) in respect of any Letter of
Credit;
(iii) agrees that each Letter of Credit is Issued subject to and with
the benefit of the provisions of Schedule 7 (Terms of Borrowers'
Indemnity); and
(iv) if a Finance Party suffers any liabilities, damages, costs,
expenses, losses and charges whatsoever in relation to or arising
out of any Letter of Credit Issued or in relation to or arising
out of clause 4.7 (Banks' Guarantee and Indemnity), the benefit
of Schedule 7 (Terms of Borrowers' Indemnity) shall extend to
such Finance Party. A Borrower may finance a payment under such
indemnity by drawing down a Revolving Advance if it is then
entitled to do so in accordance with the terms of this Agreement.
(c) NON-CONTRAVENTION OF US LAW: No Obligor will request the Issue of a
Letter of Credit which would contravene any of the laws of the United
States Of America.
5.7 BANKS' GUARANTEE AND INDEMNITY
Each Bank hereby irrevocably and unconditionally:
(a) subject to clause 4.7(b), guarantees to and indemnifies (in each case
on the terms set out in Schedule 8 (Terms of Interbank Guarantee and
Indemnity)) the Issuing Bank severally in its Proportion and on demand
by the Issuing Bank, the due and punctual performance by any relevant
Borrower of all its obligations in respect of each Letter of Credit
Issued by the Issuing Bank;
(b) if it is not permitted by its constitutional documents or any
applicable law to grant guarantees, agrees that, upon any failure of a
relevant Borrower to make timely payment of any amount due in respect
of a Letter of Credit, such Bank shall take (and upon the occurrence
44
of an Event of Default specified in clauses 12.1 (e) to (n) (Events of
Default) (or any event occurs which under the applicable law of any
relevant jurisdiction has an analogous, similar or equivalent effect
to any such events) shall be deemed to have taken without any further
action, as of the Issue Date of each outstanding Letter of Credit), an
undivided participating interest from the Issuing Bank in each Letter
of Credit outstanding at such time in a proportion equal to such
Bank's Proportion. Each Bank shall hold the Issuing Bank harmless and
indemnify the Issuing Bank for such Bank's proportionate share of any
drawing under any Letter of Credit in which it has taken an undivided
participating interest under this clause 4.7;
(c) as a separate and independent stipulation agrees that any sum of money
intended to be the subject of the guarantee in clause 4.7(a), shall be
recoverable from it (in its Proportion) as sole principal debtor even
if such sum would not be recoverable from any relevant Borrower by
reason of any legal limitation, disability or incapacity or
liquidation of any of them or any other fact or circumstance (whether
known to the Issuing Bank or not) but which would have been
recoverable from such Bank if it were the sole or principal debtor in
respect of such liability in place of any such Borrower.
5.8 CALCULATION OF INTEREST IF BANK MAKES A GUARANTEE OR INDEMNITY PAYMENT
Any payment made or to be made by a Bank pursuant to clause 4.7 (Banks'
Guarantee and Indemnity) and any unreimbursed amount due to the Issuing
Bank shall (for the purpose of calculating interest thereon which is due
from the relevant Borrower) be deemed to have been made available to that
Borrower by way of a Revolving Advance on the date such payment is made or
is to be made (or reimbursed) and accordingly is subject to the terms and
conditions hereof and, after the earliest date on which a Revolving Advance
could have been drawn down to fund such liability, such amount shall be
treated as if it were an overdue sum with an initial term of one month but
(for all other purposes) shall be immediately due and payable by the
relevant Borrower.
5.9 DEFAULTING BANKS
If a Bank (a "DEFAULTING BANK") fails to make payment on its due date of
any amount (an "OVERDUE AMOUNT") due from it for the account of the Issuing
Bank pursuant to clause 4.7 (Banks' Guarantee and Indemnity) then until the
Issuing Bank (or the Facility Agent on its behalf) has received payment of
such overdue amount in full (and without prejudice to any other rights or
remedies of the Issuing Bank in respect of such failure):
(a) the Issuing Bank shall be entitled to receive any remuneration which
such Defaulting Bank would otherwise have been entitled to receive in
respect of the Revolving Credit Facility; and
(b) the overdue amount shall bear interest at the rate of one per cent per
annum over LIBOR plus the Mandatory Cost Rate for the time being from
45
the due date until the date of payment and any such interest which
accrues shall be compounded monthly.
5.10 SUBROGATION OF BANKS MAKING GUARANTEE PAYMENTS
(a) Each Obligor agrees that if any Bank makes any payment under clause
4.7 (Banks' Guarantee and Indemnity) it will immediately be subrogated
to any rights. that the Issuing Bank may then have against the
relevant Borrower in respect of the amount paid and such subrogation
will be subject to the terms set out in Schedule 7 (Terms of
Borrowers' Indemnity).
(b) Each Obligor agrees to indemnify the Bank making such a payment in
respect of that payment and all costs and expenses properly incurred
by the Bank in recovering or attempting to recover any amount pursuant
to such rights of subrogation.
5.11 CURRENCY FLUCTUATIONS
In addition and without prejudice to the Banks' other rights hereunder, the
Facility Agent shall on every Quarter Date (and at any other time at which
it is requested to do so by the Majority Banks) calculate the aggregate of
the Sterling Amounts of all Outstanding Contingent Liabilities under all
Letters of Credit then outstanding.
5.12 CLAWBACK
If the Facility Agent at any time issues a certificate addressed to the
Primary Borrower that in its opinion the aggregate of the Sterling Amounts
of Outstanding Contingent Liabilities under all Letters of Credit then
outstanding is equal to or exceeds 105% of the aggregate amount of the
Banks' Commitments under the Revolving Credit Facility less the amount of
all outstanding Revolving Advances at that time, the Facility Agent may
give notice to the Primary Borrower requiring it within five Banking Days
either to:
(a) make arrangements to repay Revolving Advances and/or reduce the amount
of the Letters of Credit outstanding so as to bring the Sterling
Amount of all such Outstanding Contingent Liabilities to an amount
equal to or below 100% of that aggregate amount; or
(b) provide the Issuing Bank with cash cover in the currency in which any
Letter of Credit is denominated of such amount as would cause the
requirements of this clause 4.12 to be satisfied.
5.13 CASH COVER
Where cash cover is provided by an Obligor under clause 4.12 (Clawback) or
otherwise under this Agreement, the Issuing Bank undertakes to place the
relevant cash deposit in an account with it bearing interest at a rate and
on the standard terms applicable to corporate customers of such Bank making
deposits of an equivalent size and for an equivalent duration (or on such
other terms as such Bank and the relevant Obligor may agree). Interest
accruing on cash deposited as cash cover shall be for the account of and
paid to such Obligor but shall not be paid to any Obligor (but shall be
46
compounded) during the continuance of an Event of Default which shall not
have been waived.
5.14 UNAVAILABILITY OF OPTIONAL CURRENCY
If a Borrower requests that an Advance be denominated in an Optional
Currency during its Maturity Period as provided in clause 4.2(b)(ii)
(Amount), and:
(a) no later than 10.00 a.m. on the Quotation Date for such Advance, any
Bank or Banks (in this clause 4.14 only, an "AFFECTED BANK" or, if
more than one, the "AFFECTED BANKS") notifies the Facility Agent
(providing detailed reasons and justification therefor) that it is not
able to comply with such request; or
(b) no later than 11.00 a.m. on the Quotation Date for such Advance, the
Facility Agent notifies the relevant Borrower and the Banks that by
reason of circumstances affecting the London Interbank Market
generally it is not feasible for such Advance to be made in such
Optional Currency or, as the case may be, denominated in such Optional
Currency for the relevant Maturity Period; or
(c) to give effect to such request would cause the Advances under the
Facility to be denominated in more than four Optional Currencies,
then:
(i) if the circumstances in paragraph (a) above only apply, the
relevant Borrower and the Facility Agent shall agree to adjust
the amount of such Advance to exclude the participation therein
of the Affected Bank or Affected Banks and the Affected Bank or
Affected Banks shall make a separate Advance in Sterling in the
amount of their scheduled participation in such Advance Provided
always that the Maturity Period thereof ends on the same day as
the Maturity Period of such Advance; and/or
(ii) if the circumstances in (b) and/or (c) apply, such Advance shall
not be made unless the relevant Borrower specified in the
Drawdown Notice in respect of such Advance and the Banks
otherwise agree that such Advance should be denominated in
Sterling and/or in one or more Optional Currencies in such
circumstances, in which case such Advance shall be made in
Sterling and/or (as the case may be) in such Optional Currency or
Currencies in the Sterling Amount relating to such Advance.
6. INTEREST AND INTEREST PERIODS
6.1 INTEREST ON THE TERM ADVANCES
The Primary Borrower shall pay interest on each Term Advance in respect of
each Interest Period on the relevant Interest Payment Date (or, in the case
of Interest Periods of more than six months, by instalments, every six
months from the commencement of the relevant Interest Period and on the
relevant Interest Payment Date) at the rate per annum determined by the
Facility Agent to be the aggregate of (a) the Applicable Margin, (b) the
Mandatory Cost Rate and (c) LIBOR.
47
6.2 INTEREST PERIODS FOR THE TERM ADVANCES
(a) The Primary Borrower may by notice received by the Facility Agent not
later than 11 a.m. on the second Banking Day before the beginning of
each Interest Period in respect of each Term Advance specify whether
such Interest Period shall have a duration of 1, 2, 3 or 6 months (or
such other period as the Facility Agent, acting on the instructions of
the Majority Banks, may agree).
(b) Every Interest Period in respect of each Term Advance shall be of the
duration specified by the Primary Borrower pursuant to clause 5.2(a)
but so that:
(i) each Interest Period in respect of each such Advance shall
commence on the date of the expiry of the previous Interest
Period;
(ii) if otherwise there would be more than 10 Term Advances
outstanding with different Interest Payment Dates, the Primary
Borrower shall select Interest Periods for such Advances ending
on the same day as the then current Interest Period for another
such Advance and on the last day of such Interest Period such
Advances shall be consolidated into and shall thereafter
constitute a single Advance;
(iii) if any Interest Period in respect of a Term Advance would
otherwise overrun the Final Repayment Date, such Interest Period
shall end on such date;
(iv) if the Primary Borrower fails to select the duration of an
Interest Period in respect of an Advance in accordance with the
provisions of clause 5.2(a) and this clause 5.2(b), such Interest
Period shall have a duration of 3 months subject to this clause
5.2(b).
6.3 INTEREST UNDER THE REVOLVING CREDIT FACILITY
The relevant Borrower shall pay interest on each Revolving Advance on its
Maturity Date (or, in the case of a Revolving Advance having a Maturity
Period of more than six months, by instalments, every six months from the
relevant Drawdown Date and on the relevant Maturity Date) at the rate per
annum determined by the Facility Agent to be the aggregate of (a) the
Applicable Margin, (b) the Mandatory Cost Rate and (c) LIBOR.
6.4 INTEREST ON UNPAID SUMS
(a) If any Obligor fails to pay any sum (including, without limitation,
any sum payable pursuant to this clause 5.4) on its due date for
payment under this Agreement such Obligor shall pay interest on such
sum from the due date up to the date of actual payment (after as well
as before judgment) at a rate determined by the Facility Agent
pursuant to this clause 5.4.
(b) The period beginning on the due date for payment and ending on the
date of actual payment shall be divided into successive periods of not
more than three months as selected by the Facility Agent (after
consultation with the Banks so far as reasonably practicable in the
48
circumstances) each of which (other than the first, which shall
commence on such due date) shall commence on the last day of the
preceding such period but so that if the unpaid sum is an amount of
principal which shall have become due and payable prior to the next
succeeding Interest Payment Date relating thereto or, as the case may
be, prior to the relevant Maturity Date, then the first such period
selected by the Facility Agent shall end on such Interest Payment Date
or, as the case may be, such Maturity Date.
(c) The rate of interest applicable to each period referred to in clause
5.4(b) shall (subject to clause 5.6 (Alternative Interest Rates)) be
the aggregate (as determined by the Facility Agent) of (i) one per
cent per annum, (ii) the Applicable Margin (iii) the Mandatory Cost
Rate and (iv) LIBOR but so that if the unpaid sum is an amount of
principal (as referred to in clause 5.4(b)) interest shall be payable
on such unpaid sum during the first period determined pursuant to
clause 5.4(b) at a rate one per cent above the rate applicable thereto
immediately before it fell due.
(d) Interest under this clause 5.4 shall be due and payable on the last
day of each period determined by the Facility Agent pursuant to this
clause 5.4 or, if earlier, on the date on which the sum in respect of
which such interest is accruing shall actually be paid or on such date
or other dates which the Facility Agent may specify by written notice
to the Primary Borrower (but not more frequently than once a month).
Any interest payable under this clause 5.4 which is not paid when due
shall be deemed an unpaid sum and shall itself bear interest
accordingly.
6.5 NOTIFICATION OF INTEREST PERIODS AND INTEREST RATE The Facility Agent shall
notify the Primary Borrower (who shall notify any other relevant Borrower)
and the Banks promptly of the duration of each Interest Period, Maturity
Period or other period for the calculation of interest (or, as the case may
be, default interest) and of each rate of interest determined by it under
this clause 5.
6.6 ALTERNATIVE INTEREST RATES
If:
(a) in attempting to calculate LIBOR under paragraph (c) of the definition
of LIBOR for a specified period the Facility Agent determines at 11.00
a.m. (London time or, in the case of Euros, Central European Time) on
the Quotation Date that it is unable to obtain quotations for LIBOR
from any of the Reference Banks in respect of the relevant Advance or
unpaid sum for the specified period; or
(b) before its close of business on such day, the Facility Agent has been
notified in writing by a Bank or group of Banks to which 35% or more
of the relevant Advance or unpaid sum is (or, if the relevant Advance
were made, would then be) owed that LIBOR calculated in accordance
with its definition in this Agreement does not accurately reflect the
cost to them of funding their participation; or
49
(c) the Facility Agent, acting reasonably, determines that, by reason of
circumstances affecting the London Inter-bank Market, adequate and
fair means do not or will not exist for determining the rate of
interest applicable to the specified period,
then:
(i) the Facility Agent shall promptly notify in writing the Primary
Borrower and the Banks of such event or circumstance;
(ii) the Facility Agent (on behalf of and after consultation with the
Banks) shall, within three Banking Days of such notice, negotiate
with the Primary Borrower with a view to agreeing a substitute
basis on which the relevant part of the Facility may be
maintained;
(iii) any substitute basis agreed in writing by the Facility Agent (on
behalf of and with the consent of all the Banks) and the Primary
Borrower within 30 days of such notice shall take effect in
accordance with its terms and interest shall be calculated as if
the substitute basis had come into effect from the beginning of
the relevant specific period;
(iv) in default of agreement within 30 days, each Bank's participation
in the Advance or unpaid sum (if any) shall during that specific
period bear interest at the annual rate equal to the cost to that
Bank (as certified by it to the Primary Borrower within ten days
of the end of that 30 day period and expressed as a percentage
rate per annum) of funding its participation during that specific
period by whatever means that Bank determines to be most
appropriate plus the Applicable Margin and the Mandatory Cost
Rate and if and to the extent that clause 5.4 (Interest on unpaid
sums) applies, a further one per cent.
7. REPAYMENT, PREPAYMENT, CANCELLATION AND REDUCTIONS
7.1 REPAYMENT OF THE TERM ADVANCES
The Primary Borrower shall repay in full all outstanding Term Advances on
the Final Repayment Date.
7.2 REPAYMENT OF REVOLVING ADVANCES
The relevant Borrower shall repay each Revolving Advance in full on its
Maturity Date, without prejudice to the right of that or any other
Borrower, subject to the terms of this Agreement, to continue to make
utilisations up to the Available Amount.
On the Final Repayment Date for the Revolving Credit Facility, the balance
of all outstanding Revolving Advances under such Facility shall in any
event be repaid in full and may not be reborrowed.
50
7.3 OPTIONAL PREPAYMENT OF ALL THE BANKS
The relevant Borrower may, subject to clause 6.6 (Cancellation of the
Facilities), prepay:
(a) a Term Advance in whole or part (if in part, being (pound)10,000,000
or any larger sum which is an integral multiple of (pound)5,000,000)
on the next succeeding Interest Payment Date in respect of such
Advance or, together with any relevant amounts payable pursuant to
clause 13.1 (Miscellaneous Indemnities), any Banking Day, which amount
shall be applied by the Facility Agent in prepayment to the Banks to
whom such Advance is owing on a pro rata basis;
(b) a Revolving Advance in whole (but not in part) together with any
relevant amounts payable pursuant to clause 13.1 (Miscellaneous
Indemnities).
7.4 AFFECTED BANKS
(a) The relevant Borrower may and, where required under this Agreement
shall, prepay (in whole but not in part only), without premium or
penalty, subject to clause 6.6 (Cancellation of the Facilities), the
whole of the Contributions to all the Facilities of any Affected Bank.
Upon any such notice of such prepayment being given, or as provided
for in clause 14.1 (Unlawfulness), the Commitments of the relevant
Bank to all the relevant Facilities shall be reduced to zero and the
undrawn amount of the Total Commitments in respect of all the
Facilities shall be reduced accordingly.
(b) Instead of, or in addition to, its rights under clause 6.4(a) above
the relevant Borrower may on payment of the amounts referred to under
clause 6.5 (Prepayments Generally), without prejudice to clause 14.4
(Mitigation), require the Affected Bank to transfer pursuant to clause
16.5 (Substitution Certificate) at par all of its Commitments and
Contributions to a Qualifying Bank nominated by the Borrower provided
that the relevant Qualifying Bank agrees (in its absolute discretion)
to accept the transfer to it and, in the case of clause 14.1
(Unlawfulness), that Bank is lawfully able to do so and the transfer
is to take effect prior to the prepayment date specified by the
Facility Agent thereunder.
7.5 PREPAYMENTS GENERALLY
(a) No prepayment may be made pursuant to clauses 6.3 (Optional Prepayment
of all the Banks) or 6.4 (Affected Banks) unless the Primary Borrower
shall have given the Facility Agent 5 Banking Days' prior notice (or
in the case of a prepayment pursuant to clause 14.1 (Unlawfulness)
such notice as is required under clause 14.1 (Unlawfulness) specifying
the proposed date of the prepayment and the amount to be prepaid.
Every such notice shall be effective only on actual receipt by the
Facility Agent, shall be irrevocable and shall oblige the relevant
Borrower to make the relevant prepayment on the date specified.
(b) No amount of the Term Facility which is repaid or prepaid may be
reborrowed.
51
(c) Prepayments required to be made to an Affected Bank should be applied
first against the Affected Bank's Contribution to outstanding Term
Advances, and then in the following order:
(i) in repayment of that Bank's Contribution to outstanding Revolving
Advances and in permanent reduction of the Revolving Credit
Facility;
(ii) to provide cash cover for that Bank's Proportion of the
Outstanding Contingent Liabilities under the Revolving Credit
Facility.
(d) All prepayments shall be made together with (to the extent these
relate to the amounts prepaid):
(i) accrued interest to the date of prepayment;
(ii) any additional amount payable under clauses 8.5 (Grossing-up for
Taxes) or 14.2 (Increased Costs); and
(iii) all other sums payable by the Borrower to the Banks or the
relevant Bank under this Agreement including, without limitation,
any accrued commitment commission payable under clause 7.2
(Commitment Fees), any Letter of Credit commission and fees under
clause 7.3 (Letter of Credit Fees), expenses under clause 7.4
(Expenses) and any amounts payable under clause 13.1
(Miscellaneous Indemnities).
(e) No Borrower shall prepay all or any part of an Advance outstanding
under this Agreement except at the times and in the manner expressly
provided in this Agreement.
7.6 CANCELLATION OF THE FACILITIES
The Primary Borrower may at any time prior to the Available Commitment
Termination Date in respect of the Revolving Credit Facility by notice to
the Facility Agent (effective only on actual receipt) cancel with effect
from a date not less than 10 Banking Days after the receipt by the Facility
Agent of such notice the whole or any part (if in part, being
(pound)10,000,000 or any larger sum which is an integral multiple of
(pound)5,000,000) of the Available Amount., in each case which is not the
subject of a Drawdown Notice at such time. Such notice shall specify the
date upon which such cancellation is to be made and the amount of such
cancellation. Any such notice of cancellation, once given, shall be
irrevocable and upon such cancellation taking effect the Commitments of the
Banks shall be reduced accordingly (pro-rata their respective Commitments).
7.7 TERMINATION
The Commitment of each Bank shall be automatically cancelled and reduced to
zero at the close of business in London on the relevant Available
Commitment Termination Date.
52
8. FEES AND EXPENSES
8.1 ARRANGEMENT, UNDERWRITING, PARTICIPATION AND AGENCY FEES
The Primary Borrower shall pay to the Facility Agent or shall procure that
there is paid, whether or not any part of the Commitments is ever advanced:
(a) on the date of this Agreement fees of an amount agreed between the
Primary Borrower and the Facility Agent in a letter dated on or about
the date of this Agreement;
(b) on the date of this Agreement and on each anniversary thereof until
the end of the Finance Period, for the account of the Facility Agent,
an agency fee of an amount agreed between the Primary Borrower and the
Facility Agent in a letter dated on or about the date of this
Agreement.
8.2 COMMITMENT FEES
The Primary Borrower shall pay to the Facility Agent, whether or not any
part of the Commitments is ever advanced, from the Effective Date on each
Fee Payment Date after the Effective Date and on the Available Commitment
Termination Date in respect of the Revolving Credit Facility, for the
account of each of the Banks (pro-rata to their respective Commitments for
that Facility), commitment commission computed in arrears at the Applicable
Fees Rate on the daily amount by which the Total Commitments in respect of
the Revolving Credit Facility exceeds the aggregate of the Contributions in
respect of the Revolving Credit Facility. Accrued commitment commission
will also be payable on the amount of any Commitment when cancelled on the
date of its cancellation.
8.3 LETTER OF CREDIT FEES
(a) Each relevant Borrower shall (on the dates set out in clause 7.3(c))
pay commission in Sterling to the Facility Agent for the account of
the Banks (in their respective Proportions) on the Issue of any Letter
of Credit requested by such Borrower in Sterling at a percentage rate
per annum equal to the Applicable Margin on the Sterling Amount of the
Outstanding Contingent Liabilities under such Letter of Credit
calculated in each case on the date of Issue and recalculated on each
Quarter Date from the Issue Date of such Letter of Credit until the
earlier of its Expiry Date or such date as the Issuing Bank and the
Banks have ceased to be under any liability (actual or contingent) in
respect thereof, and on the basis of a 365 day year. If the relevant
Borrower has provided cash cover for any Letter of Credit, the
percentage rate per annum payable on cash covered amounts shall
instead be 0.25%.
(b) Each relevant Borrower shall pay a fronting fee to the Facility Agent
for the account of the Issuing Bank on the Issue of any Letter of
Credit at a rate of 0.2% per annum on the Sterling Amount of the face
amount of the relevant Letter of Credit payable in advance on the date
of Issue and on each Quarter Date thereafter.
53
(c) The commission and fronting fee payable under clauses 7.3(a) and
7.3(b) respectively in respect of each Letter of Credit shall be paid
in advance on the relevant Issue Date and on each Quarter Date in each
year during the continuance of such Letter of Credit (or if such day
is not a Banking Day, on the preceding Banking Day) commencing on the
first Quarter Date falling on or after the Issue of the relevant
Letter of Credit. If a Letter of Credit is terminated leaving no
Outstanding Contingent Liabilities before a Quarter Date, that part of
the commission paid in advance which is attributable to the period
from the date of cancellation until the next Quarter Date shall be
repaid to the Borrower which made the advance commission payment by
set-off against any amounts then due from the Obligor to any Finance
Party or, if no such amounts are due, by payment in cash.
(d) For the avoidance of doubt, the Issuing Bank's Proportion of the
commission at the rate and calculated in the manner specified in
clause 7.3(a) shall be payable to the Issuing Bank in respect of its
residual liability in its capacity as a Bank, notwithstanding that it
does not purport to guarantee itself in its capacity as Issuing Bank.
(e) The relevant Borrower shall pay interest on the amount demanded and
outstanding under the indemnity given by them in respect of Letters of
Credit in accordance with clause 4.8 (Calculation of Interest if Bank
makes a Guarantee or Indemnity Payment) in addition to the commission
and other fees payable under this Agreement in respect of the
Revolving Credit Facility.
8.4 EXPENSES
The Primary Borrower shall reimburse the Arrangers, the Banks and the
Facility Agent from time to time within three Banking Days of receipt of
demand:
(a) all reasonable costs and expenses (including without limitation legal,
printing and out-of-pocket expenses) together with any VAT thereon
incurred by the Facility Agent and the Arrangers in connection with
the negotiation, preparation and execution of the Finance Documents
and the completion of the transactions contemplated in the Finance
Documents, and the negotiation, preparation and execution of any
amendment or extension of, or the granting of any waiver or consent
under, any of the Finance Documents; and
(b) without prejudice to the generality of (c) below, all expenses and
costs (including without limitation the fees and expenses of lawyers,
accountants, surveyors, valuers, environmental consultants and other
professional advisers and out-of-pocket expenses) incurred by the
Facility Agent in connection with the obtaining of reports and/or
advice and/or the undertaking of investigations by or on behalf of the
Facility Agent into or concerning the Primary Borrower or the Group
following the occurrence of a Default and whilst it is continuing (or
where the Majority Banks' reasonable opinion is that a Default may
have occurred) and the Primary Borrower undertakes to give, and to
procure that its Subsidiaries give, all such reasonable assistance
54
(including, without limitation, access to its and/or their properties
and financial and other records) at all times as the Facility Agent
shall reasonably require for the purpose of enabling such reports or
advice to be prepared or such investigations to be undertaken; and
(c) after a Default has occurred, all costs and expenses (including
without limitation legal and out-of-pocket expenses) incurred by any
of the Finance Parties in contemplation of, or otherwise in connection
with, the enforcement or attempted enforcement of, or preservation or
attempted preservation of any rights under, any of the Finance
Documents, or otherwise in respect of the recovery, or attempted
recovery, of moneys owing under the same, together with interest at
the rate referred to in clause 5.4 (Interest on Unpaid Sums) from the
date on which such expenses were incurred to the date of payment (as
well after as before judgment).
8.5 VALUE ADDED TAX
All fees, costs and expenses payable pursuant to this clause 7 shall be
paid together with an amount equal to any VAT thereon payable by any of the
Finance Parties in respect of such fees and expenses against a duly
executed VAT invoice.
8.6 STAMP AND OTHER DUTIES
The Primary Borrower shall pay all proper stamp, documentary, registration,
notarisation or other duties or Taxes (including any duties or Taxes
payable by, or assessed on, the Finance Parties) imposed on or in
connection with the negotiation, preparation, implementation and execution
of any of the Finance Documents and shall indemnify the Finance Parties
against any liability arising by reason of any delay or omission by the
Primary Borrower to pay such duties or Taxes.
9. PAYMENTS AND TAXES; ACCOUNTS AND CALCULATIONS
9.1 NO SET-OFF OR COUNTERCLAIM; DISTRIBUTION TO THE BANKS
All payments to be made by any Obligor under this Agreement shall be:
(a) made in full, without any set-off or counterclaim whatsoever and,
subject as provided in clause 8.5 (Grossing-up for Taxes), free and
clear of any deductions or withholdings, on the due date to the
account of the Facility Agent at such bank as the Facility Agent may
from time to time specify for this purpose;
(b) made in respect of:
(i) each repayment or prepayment of, or payment of interest on, or
participation by a Bank in, a Utilisation, in the currency in
which the Utilisation is denominated;
(ii) any payment of costs and expenses, in the currency in which they
were incurred;
55
(iii) all fees and/or commission payable under clause 7 (Fees and
expenses) shall be paid in Sterling unless the Parent and the
Facility Agent otherwise agree;
(iv) any other amount expressed in any Finance Document to be payable
in a currency, in that currency;
(c) for the account of all the Banks, and the Facility Agent shall
forthwith distribute such payments in like funds as are received by
the Facility Agent to the Banks rateably for the account of such
Banks' respective Facility Offices in accordance with their
Commitments or Contributions, as the case may be provided that where
this Agreement provides for a payment to be made for the account of a
particular Finance Party or Finance Parties, in which case the
Facility Agent shall distribute the relevant payment to the relevant
Finance Party or Finance Parties concerned.
9.2 PAYMENTS BY THE BANKS OR BY OBLIGORS
(a) All payments by an Obligor or a Bank under the Finance Documents shall
be made to the Facility Agent to its account at such office or bank:
(i) in the principal financial centre of the country of the relevant
currency; or
(ii) in the case of Euro Units or national currency units, in
Frankfurt am Main, Germany (or such other principal financial
centre of a Participating Member State as the Facility Agent may
from time to time nominate for this purpose) or London,
as it may from time to time notify to that Obligor or Bank for this
purpose.
(b) Payments under the Finance Documents to the Facility Agent shall be
made for value on the due date at such times and in immediately
available, freely transferable cleared funds (or such other funds as
the Facility Agent may specify to the Party concerned as being
customary at the time for the settlement of transactions in the
relevant currency).
(c) Each payment received by the Facility Agent under the Finance
Documents for another Party shall, subject to paragraph (d) below, be
made available by the Facility Agent to that Party by payment (on the
date and in the currency and funds of receipt) to its account with
such office or bank:
(i) in the principal financial centre of the country of the relevant
currency; or
(ii) in the case of Euro Units or national currency units, in
Frankfurt am Main, Germany (or such other principal financial
centre of a Participating Member State as the Facility Agent may
from time to time nominate for this purpose) or London,
as it may from time to time notify the Facility Agent for this purpose
by prior written notice.
56
(d) The Facility Agent may apply any amount received by it for an Obligor
in or towards payment (on the date and in the currency and funds of
receipt) of any amount due from an Obligor under this Agreement or in
or towards the purchase of any amount of any currency to be so
applied.
9.3 NON-BANKING DAYS
When any payment under this Agreement would otherwise be due on a day which
is not a Banking Day, the due date for payment shall be postponed to the
next following Banking Day unless such Banking Day falls in the next
calendar month, in which case payment shall be made on the immediately
preceding Banking Day.
9.4 FACILITY AGENT MAY ASSUME RECEIPT
(a) Where any sum is to be paid under this Agreement to the Facility Agent
for the account of another person, the Facility Agent may assume that
the payment will be made when due and may (but shall not be obliged
to) make such sum available to the person so entitled.
(b) If it proves to be the case that such payment was not made to the
Facility Agent, then:
(i) the person to whom such sum was so made available shall on
request refund such sum to the Facility Agent together with
interest thereon sufficient to compensate the Facility Agent for
the cost of making available such sum up to (and/or, as the case
may be, the cost to the relevant other person of not receiving
such sum until) the date of such repayment; and
(ii) the person by whom such sum was payable shall indemnify the
Facility Agent (or the relevant other person) for any and all
loss or expense which the Facility Agent (or the relevant other
person) may sustain or incur as a consequence of such sum not
having been paid on its due date together with any interest,
expenses and penalties payable or incurred in connection
therewith.
9.5 GROSSING-UP FOR TAXES
(a) If at any time any Obligor is required to make any deduction or
withholding in respect of Taxes from any payment due under any Finance
Document for the account of any Finance Party (or if the Facility
Agent is required to make any such deduction or withholding from a
payment to a Finance Party), the sum due from the relevant Obligor in
respect of such payment shall, subject to clause 8.6 (Qualifying
Bank), be increased to the extent necessary to ensure that, after the
making of such deduction or withholding (and any further deduction and
withholding which may be levied on the additional amounts paid by
reason of this clause), each Finance Party receives on the due date
for such payment (and retains, free from any liability in respect of
such deduction or withholding) a net sum equal to the sum which it
57
would have received and so retained had no such deduction or
withholding been made or required to be made.
(b) Each Obligor shall (without prejudice to the foregoing provisions of
this clause 8.5) indemnify each Finance Party on demand by the
Facility Agent against any losses or costs incurred by any of them
together with any interest, expenses and penalties payable or incurred
in connection therewith by reason of any failure of such Obligor to
make any such deduction or withholding.
(c) Each Obligor shall promptly deliver to the Facility Agent any
receipts, certificates or other proof evidencing the amounts (if any)
paid or payable in respect of any such deduction or withholding.
9.6 QUALIFYING BANK
(a) If:
(i) any Bank is not or ceases to be a Qualifying Bank; and
(ii) as a result an Obligor is required to deduct or withhold United
Kingdom income tax in respect of payments of interest to be made
by such Obligor to that Bank under any Finance Document or would
otherwise have been required to make an indemnity payment or a
greater indemnity payment under clause 8.5 (Grossing-up for
Taxes) or 14.2 (Increased Costs),
then such Obligor shall (as the case may be) not be liable to pay
under clause 8.5 (Grossing-up for Taxes) in respect of any such
payment of interest any amount in excess of the amount (if any) it
would have been obliged to pay if such Bank were a Qualifying Bank,
nor shall it be liable to make an indemnity payment or a greater
indemnity payment under clause 8.5 (Grossing-up for Taxes) or, as the
case may be, clause 14.2 (Increased Costs) than would have been
required (if any) if the aforesaid Bank had been or had not ceased to
be a Qualifying Bank.
(b) This clause 8.6 shall not apply, and such Obligor shall be obliged to
comply with its obligations under clause 8.5 (Grossing-up for Taxes),
or as the case may be 14.2 (Increased Costs), if on or after the date
of this Agreement:
(i) there shall have been any change in, or in the official
interpretation or application of, any relevant law or the
practice of the United Kingdom Inland Revenue (or, in the case of
a Treaty Lender, any Government Entity in the country in which it
is resident for the purpose of the relevant double taxation
treaty) and as a result thereof the Bank is not or ceases to be a
Qualifying Bank, or
(ii) the Bank referred to in clause 8.6(a) has transferred its
Facility Office in respect of any Facility outside the United
Kingdom or has become a Bank hereunder with a Facility Office
outside the United Kingdom in respect of any Facility, in each
case, with the consent of the Primary Borrower.
(c) A person intending to make a claim pursuant to clause 8.5 (Grossing-up
for Taxes) shall, promptly after such person becomes aware of the
circumstances giving rise to such claim and the amount of such claim,
58
deliver to the Primary Borrower through the Facility Agent a
certificate to that effect specifying the amount of such claim and
setting out in reasonable detail the basis of such claim, provided
that nothing shall require such person to disclose any confidential
information relating to the organisation of its affairs.
(d) If at any time after the date of this Agreement any Bank is aware that
it is not or will cease to be a Qualifying Bank (for whatever reason),
it shall promptly notify the Primary Borrower.
(e) A Treaty Lender will submit such claim to the appropriate authorities
(together with such forms, papers, other documents and/or evidence as
necessary) as may be required for the Obligors to make payment of
interest to such Treaty Lender on its Advances free of withholding or
deduction on account of United Kingdom Tax. No Obligor will be liable
to pay any additional amount under clause 8.5 (Grossing-up for Taxes)
in respect of the withholding or deduction on account of United
Kingdom income tax from any such interest unless such claim has been
submitted to those authorities promptly after that Treaty Lender
became a party to this Agreement as a Treaty Lender or the proviso to
clause 8.6(a) applies.
9.7 CLAW-BACK OF TAX BENEFIT
(a) If following any such deduction or withholding as is referred to in
clause 8.5 (Grossing-up for Taxes) any Finance Party determines in its
sole discretion that it has received or been granted a credit against
or remission for any Taxes payable by it, such Finance Party shall,
subject to the relevant Obligor having made any increased payment in
accordance with clause 8.5 (Grossing-up for Taxes) and subject to
there not being any Event of Default which is continuing, and to the
extent that such Finance Party can do so without prejudicing the
retention of the amount of such credit or remission and without
prejudice to the right of such Finance Party to obtain any other
relief or allowance which may be available to it, reimburse the
relevant Obligor with such amount as such Finance Party shall in its
absolute discretion certify to be the proportion of such credit or
remission as will leave such Finance Party (after such reimbursement)
in no worse position than it would have been in had there been no such
deduction or withholding from the payment by the relevant Obligor as
aforesaid.
(b) Such reimbursement shall be made forthwith upon such Finance Party
certifying that the amount of such credit or remission has been
received by it, provided that the Finance Party shall be the sole
judge of the amount of any such benefit and of the date on which it
was received.
(c) Nothing contained in this Agreement shall interfere with the right of
any Finance Party to arrange its tax affairs in whatever manner it
thinks fit nor oblige any Finance Party to disclose any information
regarding its tax affairs and computations. Without prejudice to the
generality of the foregoing, no Obligor shall, by virtue of this
59
clause 8.7, be entitled to enquire about any Finance Party's tax
affairs or computations.
(d) The Finance Parties are under no obligation to investigate whether any
tax credit is available or to claim any tax credit. Any amount paid by
any Finance Party to an Obligor under this clause shall be conclusive
evidence of the amount payable and will be accepted by the Obligor in
full and final settlement of its claim.
9.8 BANK ACCOUNTS
Each Bank shall maintain, in accordance with its usual practices, an
account or accounts evidencing the amounts from time to time lent by, owing
to and paid to it under this Agreement. The Facility Agent shall maintain a
control account showing the utilisation of the Facilities and other sums
owing by each Obligor under this Agreement and all payments in respect
thereof made by each Obligor from time to time. In any legal action arising
out of or in connection with the Finance Documents the entries made in the
accounts maintained pursuant to this clause 8.8 shall, in the absence of
manifest error, be conclusive as to the amount from time to time owing by
each Obligor under this Agreement.
9.9 PARTIAL PAYMENTS
If:
(a) on any date on which a payment is due to be made by any Obligor under
this Agreement, the amount received by the Facility Agent from such
Obligor falls short of the total amount of the payment due to be made
by such Obligor on such date; or
(b) on any date on which the Facility Agent receives or recovers any
payment from an Obligor or otherwise receives any amount representing
proceeds of realisations or other recoveries under any of the Finance
Documents, the amount of such payment or other receipt falls short of
the total amount owing to the Finance Parties under this Agreement on
such date,
then (in any such case), without prejudice to any rights or remedies
available to the Finance Parties under any of the Finance Documents, the
Facility Agent shall apply the amount actually received by it in or towards
discharge of the obligations of such Obligor under this Agreement in the
following order, notwithstanding any appropriation made, or purported to be
made, by such Obligor:
(i) first, in or towards payment, on a pro-rata basis, of any unpaid
costs and expenses of the Facility Agent or the Arrangers under
this Agreement;
(ii) secondly, in or towards payment to the Banks, on a pro-rata
basis, of any amount owing to the Banks under clause 20.2
(Indemnity from Banks);
60
(iii) thirdly, in or towards payment to the Facility Agent, of any
portion of the fees payable under clause 7.1(a) (Arrangement,
underwriting, participation and agency fees) which remains
unpaid;
(iv) fourthly, in or towards payment to the Facility Agent, on a
pro-rata basis, of any portion of the fees payable under clause
7.1(b) (Arrangement, underwriting, participation and agency fees)
which remains unpaid;
(v) fifthly, in or towards payment to the Banks, on a pro-rata basis,
of any accrued commitment commission payable under clause 7.2
(Commitment fees) which shall have become due but remains unpaid;
(vi) sixthly, in or towards payment to the Banks, on a pro-rata basis,
of any accrued interest, Letter of Credit commission and (in the
case of the Issuing Bank) Letter of Credit fronting fees or
commission which shall have become due but remain unpaid, but so
that any amount payable by virtue of clause 8.5 (Grossing-up for
Taxes) shall be excluded;
(vii) seventhly, in or towards payment to the Banks, on a pro-rata
basis, of any principal which shall have become due but remains
unpaid;
(viii) eighthly,in or towards payment to any such Banks, on a pro-rata
basis, of any amount payable to any Banks by virtue of clause 8.5
(Grossing-up for Taxes) which remains unpaid; and
(ix) ninthly, in or towards payment of any other sum which shall have
become due but remains unpaid (and, if more than one such sum so
remains unpaid, on a pro-rata basis).
Each reference in clause 8.9(i) to (ix) (inclusive) to a category of unpaid
sums shall include interest thereon payable in accordance with this
Agreement (including, without limitation, default interest under clause 5.4
(Interest on unpaid sums)). Accordingly, clause 8.9(vi) shall be construed
as referring to interest on principal and accrued interest thereon which
remain unpaid to the extent due.
The order of application set out in this clause 8.9(v) to 8.9(ix) shall be
varied by the Facility Agent if the Majority Banks so direct, without any
reference to, or consent or approval from, the Obligors.
9.10 CALCULATIONS
All interest and other payments of an annual nature under this Agreement or
any of the Finance Documents shall accrue from day to day and be calculated
on the basis of the actual number of days elapsed, and in the case of
Sterling a 365 day year and in the case of other currencies a 360 day year
(or, in any case where market practice differs, in accordance with market
practice). In calculating the actual number of days elapsed in a period
which is one of a series of consecutive periods with no interval between
them or a period on the last day of which any payment falls to be made in
respect of such period, the first day of such period shall be included but
the last day excluded.
61
Where the Applicable Margin or Mandatory Cost Rate changes during any
period, interest and commitment fees shall be calculated on the rate
prevailing from day to day.
9.11 CERTIFICATES PRIMA FACIE EVIDENCE
Any certificate of, or determination by, a Finance Party as to any rate of
interest or any other amount payable under this Agreement or any of the
Finance Documents shall, in the absence of manifest error, be prima facie
evidence of such rate or amount on each Obligor and (in the case of a
certificate of or determination by the Facility Agent) on the Banks.
9.12 EFFECT OF MONETARY UNION
The provisions of clauses 8.12 (a) to (h) (inclusive) apply in relation to
any amount payable in the currency of a Participating Member State provided
that, if and to the extent that any provision relates to any state (or the
currency of such state) which was not a Participating Member State on 1
January 1999, such provision shall come into effect in relation to such
state (and the currency of such state) on and with effect from the date on
which such state becomes a Participating Member State.
(a) REDENOMINATION AND ALTERNATIVE CURRENCIES: Each obligation under this
Agreement of a party to this Agreement which has been denominated in
the national currency unit of a Participating Member State shall be
redenominated into the Euro Unit in accordance with EMU legislation,
provided that, if and to the extent that any EMU legislation provides
that following 1 January 1999 an amount denominated either in the Euro
or in the national currency unit of a Participating Member State and
payable within that Participating Member State by crediting an account
of the creditor can be paid by the debtor either in the Euro Unit or
in that national currency unit, each party to this Agreement shall be
entitled to pay or repay any such amount either in the Euro Unit or in
such national currency unit.
(b) ADVANCES: Any Advance in the currency of a Participating Member State
shall be made in the Euro Unit.
(c) PAYMENTS TO THE FACILITY AGENT: Clause 8.2 (Payments by the Banks or
Obligors) shall be construed so that, in relation to the payment of
any sum denominated in the Euro or in a national currency unit, such
sum shall be made available to the Facility Agent by payment in the
Euro Unit or, as the case may be, such national currency unit and in
immediately available, freely transferable, cleared funds to the
account notified by it under clause 8.2(a)(ii).
(d) PAYMENTS BY THE FACILITY AGENT TO THE BANKS: Any amount payable by the
Facility Agent to the Banks under this Agreement in the currency of a
Participating Member State shall be paid in the Euro Unit.
(e) PAYMENTS BY THE FACILITY AGENT: The Facility Agent shall not be liable
to the Borrower or any of the Banks in any way whatsoever for any
delay, or the consequences of any delay, in the crediting to any
account of any amount required by this Agreement to be paid by the
Facility Agent if the Facility Agent shall have taken all relevant
62
steps to achieve, on the date required by this Agreement, the payment
of such amount in immediately available, freely transferable, cleared
funds (in the Euro Unit or, as the case may be, in a national currency
unit) to the account with the Bank in the principal financial centre
in the Participating Member State which any Borrower or, as the case
may be, any Bank shall have specified for such purpose. In this clause
8.12(e) "ALL RELEVANT STEPS" means all such steps as may be prescribed
from time to time by the regulations or operating procedures of such
clearing or settlement system as the Facility Agent may from time to
time after consultation with the Primary Borrower and the Banks
determine for the purpose of clearing or settling payments of the
Euro.
(f) BASIS OF ACCRUAL: If, in relation to the currency of any Participating
Member State, the basis of accrual of interest or commitment
commission expressed in this Agreement in respect of that currency
shall be inconsistent with any convention or practice in the London
Interbank Market for the basis of accrual of interest or commitment
commission in respect of the Euro, such expressed basis shall be
replaced by such convention or practice.
(g) ROUNDING AND OTHER CONSEQUENTIAL CHANGES: Without prejudice and in
addition to any method of conversion or rounding prescribed by any EMU
legislation and without prejudice to the respective liabilities for
indebtedness of any Borrower to the Banks and the Banks to any
Borrower under or pursuant to this Agreement (and after consultation
with the Primary Borrower and the Banks):
(i) each reference in this Agreement to a minimum amount (or an
integral multiple thereof) in a national currency unit to be paid
to or by the Facility Agent shall be replaced by a reference to
such reasonably comparable and convenient amount (or an integral
multiple thereof) in the Euro Unit as the Facility Agent may from
time to time specify; and
(ii) save as expressly provided in this clause 8.12(g), each provision
of this Agreement shall be subject to such reasonable changes of
construction as the Facility Agent may from time to time specify
to be necessary or appropriate to reflect the changeover to the
Euro in Participating Member States.
(h) AMENDMENTS: After consultation with the Primary Borrower and the Banks
and notwithstanding clause 22 (Determination of Matters), the Facility
Agent shall be entitled to make from time to time such amendments to
this Agreement as it may determine in good faith to be necessary to
take account of monetary union and any consequent changes in market
practices (whether as to the settlement or rounding of obligations,
the calculation of interest, place of payment or otherwise howsoever).
Any amendment so made to this Agreement by the Facility Agent shall be
promptly notified to the other Finance Parties and the Primary
Borrower by the Facility Agent and shall be binding on all the other
63
Finance Parties and any Obligor and any other party to this Agreement.
9.13 CONFIRMATION OF END OF FINANCE PERIOD
The Facility Agent undertakes with the Obligors that the confirmation
referred to in the definition of "Finance Period" shall be given by it to
all the other parties to this Agreement promptly upon the Facility Agent
determining, acting reasonably, that none of the Finance Parties and none
of the Obligors has any actual or contingent liabilities or obligations
under any of the Finance Documents.
10. REPRESENTATIONS AND WARRANTIES
10.1 REPRESENTATIONS AND WARRANTIES
Each Obligor for itself makes the representation and warranties set out in
this clause 9 to each Finance Party.
10.2 STATUS
(a) It and each Principal Subsidiary is duly incorporated under the laws
of the jurisdiction of its incorporation and has power and is able
lawfully to own its respective property and assets and carry on its
respective businesses.
(b) It has power and is able lawfully to execute and deliver each Finance
Document and to exercise its respective rights and perform its
respective obligations under this Agreement and the transactions
contemplated hereby and all corporate or other action required to be
taken by it in order to authorise the execution and delivery by it of
each Finance Document and the performance by it of its respective
obligations has been duly taken.
10.3 LEGAL VALIDITY
The Finance Documents to which it is a party constitute its legal, valid
and binding obligations.
10.4 NON-CONTRAVENTION
The execution and delivery by it of the Finance Documents to which it is a
party and the performance by it of its obligations under the Finance
Documents will not:
(a) contravene any provision of any law, statute (including the
Electricity Act), decree, rule, regulation or code of practice to
which it or any of its assets or revenues is subject, or of any order,
judgement, injunction, decree, resolution, determination or award of
any court or any judicial, administrative or Governmental Entity or
organisation having applicability to it or any of its assets or
revenues; or
(b) result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, bond, agreement or other instrument or obligation to
64
which it is a party or by which it or any of its assets or revenues
may be bound or affected; or
(c) violate any provision of its constitutive documents.
10.5 NO DEFAULT
No Default has occurred which is continuing.
10.6 CONSENTS
All consents, approvals, authorisations, exemptions, registrations and
filings and all acts, conditions and things required to be obtained, done,
fulfilled and performed in order to:
(a) enable it to enter into and exercise its rights and perform its
obligations under each Finance Document to which it is party; and
(b) make the Finance Documents legal, valid and binding and admissible in
evidence in England and Wales,
have been obtained and are in full force and effect or have been done,
fulfilled or performed (as the case may be).
10.7 ACCOUNTS
The Original Group Accounts, and thereafter, the most recent consolidated
audited financial statements of the Group, were prepared in accordance with
the Appropriate Accounting Principles and consistently applied from one
period to the next (except as shown in those financial statements) and give
a true and fair view of the financial condition of, in the case of the
Original Group Accounts, the Target and its Subsidiary Undertakings, and in
the case of subsequent accounts, of the Group, as at the date as of which
the same were prepared.
10.8 NO MATERIAL ADVERSE EFFECT
Since 31 March 1998 there has been no change in the business, assets or
financial condition of itself, or the Group taken as a whole, having a
Material Adverse Effect.
10.9 LITIGATION
No action or proceeding of or before any court, administrative tribunal,
government body or regulatory authority (including, without limitation, the
Competition Commission or the Office of Electricity Regulation) has been
commenced, or (to the best of its knowledge) is threatened against any
member of the Group which, in each case, has a Material Adverse Effect.
10.10 INDEBTEDNESS
Its Indebtedness under the Finance Documents to which it is a party will
rank at least pari passu with all its other unsubordinated and unsecured
Indebtedness with the exception of that which is preferred by operation of
law.
65
10.11 NO BREACH
It is not in breach of or default under any agreement to which it is party
or which is binding on it or any of its assets to an extent or in a manner
which has a Material Adverse Effect.
10.12 NO SECURITY INTEREST
No Security Interest exists over all or any of the present or future
revenues or assets of any member of the Group, save for Permitted Security
Interests.
10.13 NO OBLIGATION TO CREATE SECURITY INTEREST
The execution of the Finance Documents and the exercise of its rights and
performance of its obligations thereunder will not result in the existence
of nor oblige it to create any Security Interest over all or any of its
present and future revenues or assets.
10.14 LICENCES
Each Licensee has been duly licensed to conduct its business as presently
conducted, no notice has been given to revoke any Licence and no
modification of or amendment to any of the terms of any Licence has been
made or proposed by the Secretary of State or any other person having a
right to do so which has a Material Adverse Effect.
10.15 NO CONTRAVENTION OF LICENCES
No Licensee is in contravention of any term or condition of its Licence(s)
or any requirement of the Electricity Act or any regulations made
thereunder or any other statutory requirement or any final order or
confirmed provisional order made under the Electricity Act or any
undertaking given by it to the Director General or the Secretary of State
in relation to the conduct of its business as a generator or Public
Electricity Supplier, which contravention and/or any consequence thereof
has a Material Adverse Effect.
10.16 ELECTRICITY SUPPLY
REC or the relevant Licensee has been duly licensed by the Secretary of
State as the Public Electricity Supplier (as defined in the Electricity
Act) to supply electricity to any premises in the area designated in the
PES Licence and is duly licensed to conduct its business as presently
conducted and the PES Licence is in full force and effect and neither the
Director General nor the Secretary of State has given notice to it to
revoke the PES Licence except in circumstances where a replacement Licence
for the distribution and/or supply of electricity is or is to be granted to
any other member of the Group.
10.17 NO MODIFICATION OF PES LICENCE
No modification or amendment of any of the terms of the PES Licence has
been made or proposed by way of consideration with interested parties by
the Director General or the Secretary of State pursuant to Section 11, 14
or 15 of the Electricity Act or in accordance with the conditions set out
in the PES Licence or otherwise which has a Material Adverse Effect.
66
10.18 NO VARIATION OF AUTHORISED AREA
No variation of the authorised area in respect of which the PES Licence has
been granted has been made pursuant to Section 6(1)(c) of the Electricity
Act which has a Material Adverse Effect.
10.19 ENVIRONMENTAL LAW
There has been no non-compliance by any member of the Group with any
applicable environmental or safety law applicable to it which has a
Material Adverse Effect
10.20 WHOLLY-OWNED SUBSIDIARY
Each of REC and TXU Europe Group plc is a wholly-owned Subsidiary of ▇▇▇▇▇
2.
10.21 NO DISPUTE
There is no dispute subsisting between any Obligor and any other party to
any of the Finance Documents and no material amendments have been made to
any of the Finance Documents without the consent of the Facility Agent.
10.22 TIMES FOR MAKING REPRESENTATIONS AND WARRANTIES The representations and
warranties set out in this clause 9:
(a) are made by each Obligor on the Effective Date; and
(b) are deemed to be repeated by each Obligor on the date of each Drawdown
Notice, Utilisation and the first day of each Interest Period with
reference to the facts and circumstances then existing (other than in
the case of any representation and warranty as to the Group's audited
financial statements where such representation and warranty shall be
read and construed as referring to the Group's then most recent
audited financial statements, including notes to such statements) save
that the following representations shall not be repeated: clauses 9.5
(No default), 9.8 (No material adverse effect), 9.9 (Litigation), 9.12
(No Security Interest) 9.13 (No obligation to create Security
Interest), and 9.21 (No Dispute).
10.23 OBLIGORS' ACKNOWLEDGEMENT
Each Obligor party hereto acknowledges that the Finance Parties are relying
on the representations and warranties but not on any other information
contradictory to them or varying them of which the Finance Parties or any
of them or their respective agents or advisers may have actual or
constructive knowledge.
67
11. INFORMATION UNDERTAKINGS
11.1 UNDERTAKINGS
Each of the Obligors (for itself) or as applicable the specified Obligor
gives the undertakings in this clause 10 and clause 11 (General
Undertakings) to each Finance Party (such undertakings to remain in force
throughout the Finance Period).
11.2 PREPARATION OF FINANCIAL STATEMENTS The Primary Borrower will:
(a) ANNUAL AUDITED FINANCIAL STATEMENTS: beginning with the financial year
ending 31 December 1998, prepare financial statements (which shall in
any event include a balance sheet, profit and loss account, statement
of total recognised gains and losses, cash flow statement, and notes
to such statements) in respect of:
(i) itself and consolidated financial statements in respect of the
Group; and
(ii) consolidated financial statements of ▇▇▇▇▇ 2;
in accordance with the Appropriate Accounting Principles (consistently
applied) in respect of each financial year and cause the same to be
reported on by the Auditors; and
(b) QUARTERLY FINANCIAL STATEMENTS: prepare:
(i) unaudited consolidated financial statements (which shall in any
event include a balance sheet, profit and loss account and cash
flow statement) of the Group; and
(ii) consolidated financial statements (which shall in any event
include a balance sheet, profit and loss account and cash flow
statement) of ▇▇▇▇▇ 2 (together with (aa) a pro forma
consolidation of the balance sheet of ▇▇▇▇▇ 2 with the balance
sheets of those Subsidiaries of the Primary Borrower which are
not ▇▇▇▇▇ 2 or its Subsidiaries and (bb) a notification setting
out any changes in the identity of the Principal Subsidiaries
(or, if there are no changes, so stating),
in respect of each Quarter in each financial year (on a
cumulative basis for each financial year) in accordance with
the Appropriate Accounting Principles (consistently applied)
in a form reasonably agreed with the Facility Agent.
11.3 DELIVERY OF FINANCIAL STATEMENTS
The Primary Borrower will deliver, or will procure delivery, to the
Facility Agent sufficient copies for all the Banks of each of the following
documents:
(a) ANNUAL AUDITED FINANCIAL STATEMENTS: (i) within fifteen days of issue
thereof to the shareholders of the Primary Borrower and ▇▇▇▇▇ 2, but
in any event not later than 180 days after the end of the financial
year to which they relate, the audited financial statements referred
to in clause 10.2(a) (Annual audited financial statements) for each
financial year together, in each case, with the report of the Auditors
thereon, the notes thereto, the directors' report thereon and the
certificate referred to in clause 10.3(c) (Compliance with Financial
68
Undertakings) and (ii), in respect of the Parent, its annual accounts
most recently filed with the US Securities and Exchange Commission;
(b) UNAUDITED MANAGEMENT ACCOUNTS: (i) within 60 days after the end of
each Quarter in each financial year, the financial statements and
notification referred to in clause 10.2(b) (Quarterly financial
statements)) in respect of such Quarter prepared in accordance with
the requirements of clause 10.2(b) (Quarterly financial statements)
together with (in relation to the Quarter ending December 1998 and
thereafter) the certificate referred to in clause 10.3(c) (Compliance
with Financial Undertakings) and, (ii) in the case of the Parent, its
quarterly accounts most recently filed with the US Securities and
Exchange Commission from time to time;
(c) COMPLIANCE WITH FINANCIAL UNDERTAKINGS: with each set of accounts
delivered by it under clauses 10.3(a) (Annual audited financial
statements) and (b) (Unaudited management accounts) above the Primary
Borrower will deliver to the Facility Agent a certificate signed by a
director of the Primary Borrower:
(i) confirming compliance or otherwise with the financial
undertakings in clause 11.1 (Financial Ratios) as at the end of
the relevant Test Period; and
(ii) setting out in reasonable detail and in a form satisfactory to
the Facility Agent the computations (including for the purpose of
the Leverage Ratio a detailed statement of the calculation of
Adjusted Share Capital and Reserves and Consolidated Net
Borrowings) necessary to demonstrate such compliance or
otherwise.
The Facility Agent may from time to time request a further director's
certificate setting out in reasonable detail the calculation of the
Leverage Ratio (including a detailed statement of the calculation of
Adjusted Share Capital and Reserves and Consolidated Net Borrowings)
if the Facility Agent is requested to do so by the Majority Banks or
if, acting reasonably, the Facility Agent determines that the amount
of Adjusted Share Capital and Reserves and Consolidated Net Borrowings
may have changed materially since the date as at which the last
compliance certificate was prepared. The Primary Borrower shall
provide such a certificate within ten Banking Days of any such
request.
(d) PES REGULATORY ACCOUNTS: as soon as practicable after their issue to
the relevant Government Entity or regulator, all accounts and other
financial statements or financial information required under any law
or regulation to be provided to any Government Entity, industry
regulator or similar body or person and which are thereby placed in
the public domain;
(e) REPORTS AND NOTICES TO SHAREHOLDERS AND CREDITORS: as soon as
practicable after the issue thereof every report, circular, notice or
like document issued by the Primary Borrower, ▇▇▇▇▇ 2 and/or Bidco to
its shareholders or creditors generally and every notice convening a
meeting of its shareholders or any class of its shareholders; and
69
(f) FURTHER INFORMATION: promptly upon request, such further information
concerning the financial position of the Group (or any member of it)
as the Facility Agent shall reasonably require.
11.4 NOTICE OF DEFAULT
Each Obligor will inform the Facility Agent promptly upon becoming aware of
the occurrence of any material Default or any actual Event of Default and,
upon receipt of a request to that effect from the Facility Agent, confirm
to the Facility Agent and the Banks that, save as previously notified to
the Facility Agent or as notified in such confirmation, no Default has
occurred which is continuing.
11.5 NOTICE OF LITIGATION
Each Obligor will, upon becoming aware that the same is threatened or
pending and in any case promptly after the commencement thereof, give to
the Facility Agent notice in writing of any litigation, alternative dispute
resolution, arbitration or administrative proceedings or any dispute
affecting any member of the Group or any of their respective assets, rights
or revenues which if determined against it could reasonably be expected to
result in a liability (including costs) of more than (pound)10,000,000 or
otherwise have a Material Adverse Effect.
12. GENERAL UNDERTAKINGS
12.1 FINANCIAL RATIOS
The Primary Borrower will procure that, throughout the Finance Period:
(a) for each Test Period, the ratio of EBITDA to Net Interest Costs is not
less than 2:1;
(b) at all times the Leverage Ratio is not more than 70% although the
Leverage Ratio shall be tested only by reference to the compliance
certificate provided quarterly with the unaudited management accounts
unless the Facility Agent shall at any time exercise the right to
request a further certificate in accordance with clause 10.3(c)
(Compliance with Financial Undertakings).
12.2 CHANGE OF ACCOUNTING POLICIES
(a) The Primary Borrower and the Facility Agent hereby undertake that, in
the event that:
(i) there is, or the Primary Borrower intends to make, a change in
the manner in which the financial statements in clause 10.2
(Preparation of Financial Statements) are prepared or in the
accounting principles or standards applied in the preparation of
those financial statements (including without limitation a change
from UK GAAP to US GAAP); and
(ii) such change affects the amounts utilised for the purposes of
determining whether or not an Obligor has complied with the
covenants contained in clause 11.1 (Financial Ratios);
70
they will either (aa) renegotiate each of the covenants affected
by such change with a view to putting in place covenants that
fairly reflect that change or, (bb) where the change in the
manner in which the financial statements are prepared is a change
from the accounting principles at the date of the Restatement
Agreement to US GAAP, the Primary Borrower shall, supply to the
Facility Agent: (A) a description of any change necessary for
those financial statements to reflect the accounting principles
at the date of the Restatement Agreement; and (B) sufficient
information to enable the Finance Parties to determine whether
clause 11.1 (Financial Ratios) has been complied with and make an
accurate comparison between the financial position shown by the
set of financial statements prepared on the changed basis and the
most recent financial statements delivered to the Facility Agent
under this Agreement.
(b) If negotiations referred to in paragraph (a) (aa) above are not
concluded to the reasonable satisfaction of the Facility Agent within
a period of 30 days from the commencement of such negotiations the
Primary Borrower agrees that it will procure (at the expense of the
Primary Borrower) that the Auditors provide financial statements
reflecting the Appropriate Accounting Principles, and any reference in
this Agreement to financial statements under this Agreement shall be
construed as a reference to such financial statements as adjusted to
reflect the Appropriate Accounting Principles.
(c) If the ratio of EBITDA to Net Interest Costs under clause 11.1(a)
above is less than 2:1 due to the payment or proper accrual of any
exceptional, special or windfall tax or levy, then, notwithstanding
the provisions of clause 12 (Events of Default), no Event of Default
shall occur as a result thereof except:
(i) the Borrower and the Facility Agent (acting in accordance with
the instructions of the Majority Banks) shall consult for a
period not exceeding 30 days with a view to agreeing a revised
basis for calculation of the ratio or a revised ratio; and
(ii) the failure to agree a basis for such calculation or a revised
ratio by the end of that 30-day period shall constitute an Event
of Default under clause 12.1(b) (Breach of other obligations)
which, for the purposes of that clause, shall not be capable of
remedy.
12.3 AUTHORISATION
Each Obligor shall obtain and comply with and do all that is necessary to
maintain in full force and effect all consents, authorisations, approvals
and licences required by law or regulation to enable it to enter into and
perform its obligations under the Finance Documents to which it is a party
or to ensure their legality, validity or admissibility in evidence.
12.4 DISPOSALS
No Obligor shall, and the Primary Borrower will procure that no other
member of the Group will, (either in a single transaction or in a series of
transactions, whether related or not) sell, convey, transfer or otherwise
dispose of:
(a) any shares in ▇▇▇▇▇ 2, Bidco, The Energy Group Limited or any
Principal Subsidiary;
71
(b) any loans to or other claims on any Principal Subsidiary;
(c) the whole or a substantial part of the undertaking or assets of (i)
the Distribution Business or (ii) the Generation Business as a whole;
or
(d) any other significant assets.
The restrictions will not apply:
(i) with respect to paragraph (c) above, to (A) the expenditure or
application of cash, or (B) any disposal in the ordinary course
of business (including by way of securitisation) or (C) any
disposal where the net book value of the assets disposed of, when
aggregated with the net book value of any other assets forming
part of the Distribution Business or (as the case may be) the
Generation Business disposed of otherwise than in the ordinary
course of operating the respective businesses in the same
financial year of the Group, does not exceed 10 per cent. of the
Adjusted Share Capital and Reserves at the end of the previous
financial year;
(ii) to a disposal made by any member of the Group to another member
of the Group; or
(iii) with respect to paragraph (d) above, to any disposal on arm's
length terms (including by way of securitisation); or
(iv) to any sale, conveyance, transfer or other disposal with respect
to the ▇▇▇▇'▇ ▇▇▇▇ generating facility which otherwise would
infringe sub-clause (iii) above provided none of the parties to
any such transaction is a Relevant Person or Project Finance
Subsidiary.
12.5 NEGATIVE PLEDGE
No Obligor shall, and the Primary Borrower will procure that none of its
Subsidiaries shall:
(a) create or permit to subsist any Security Interests (other than
Permitted Security Interests) upon the whole or any part of its
present or future revenues or assets; or
(b) (i) sell, transfer or otherwise dispose of any of its assets on terms
whereby it is or may be leased to or re-acquired by a member of the
Group or any of its Associated Companies; or
(ii) sell, transfer or otherwise dispose of any of its receivables on
recourse terms (save for recourse for disputed or ineligible
debts or similar rights of recourse) except for the discounting
of bills or notes in the ordinary course of trading,
in circumstances where the transaction is entered into primarily as a
method of raising finance or of financing the acquisition of an asset,
unless the aggregate disposal proceeds of all such transactions during
any Accounting Reference Period is less than (pound)50,000,000,
provided that the restriction in clause 11.5(b)(i) above shall not
apply to any sale, transfer or other disposal and leaseback or
re-acquisition with respect to the ▇▇▇▇'▇ ▇▇▇▇ generating facility for
72
so long as none of the parties to any such transaction is a Relevant
Person or Project Finance Subsidiary.
12.6 PARI PASSU INDEBTEDNESS
Each Obligor shall ensure that its Indebtedness under the Finance Documents
to which it is a party will rank at least pari passu with all its other
unsubordinated and unsecured Indebtedness with the exception of that
preferred by operation of law.
12.7 GUARANTEES AND DISTRIBUTIONS
No Obligor shall, and the Primary Borrower will procure that none of its
Subsidiaries shall:
(a) give any guarantee, indemnity or other legally binding assurance
against loss to any person (other than a member of the Group) in
respect of the obligations of any Relevant Person other than any
guarantee issued by the Primary Borrower or an SPV in connection with
Equity-Credit Preferred Securities
(b) enter into any transaction under which (or do anything as a result of
or by which) cash or other assets are transferred by or from it to any
Relevant Person;
provided that this clause 11.7 shall not prohibit:
(i) provided that no Default is outstanding or would result from the
dividend, distribution or provision, the declaration, payment or
making of any lawful dividends or other distributions or the
provision of loans, deposits or other credit but excluding
guarantees or indemnities entered into in favour of or in respect
of the indebtedness of any Relevant Person or distributions as a
result of any reduction in share capital; or
(ii) anything done pursuant to a transaction entered into on terms no
more onerous to the relevant member of the Group than a
transaction entered into on an arm's length basis on normal
commercial terms.
12.8 LICENSEES
(a) In so far as is necessary to prevent a Material Adverse Effect, each
Obligor shall take, and procure that each Licensee takes, all
appropriate steps efficiently to perform and discharge its duties and
functions in accordance with the provisions of the Electricity Act,
the terms and conditions of the relevant Licence, the provisions of
any final order or confirmed provisional order made under the
Electricity Act and all undertakings (if any) given by a Licensee to
the Director General and/or the Secretary of State in respect of the
matters referred to in Section 25(5) of the Electricity Act.
(b) The Primary Borrower shall promptly inform the Facility Agent of any
material undertaking given by any member of the Group to the Director
General and/or the Secretary of State.
(c) The Primary Borrower shall, forthwith upon receipt of the same,
deliver to the Facility Agent in sufficient copies for the Banks,
copies of all notices or orders served on any member of the Group by
73
the Director General or the Secretary of State in exercise of the
powers conferred on him by the Electricity Act and keep the Facility
Agent informed of any references to the Competition Commission or the
exercise or purported exercise by the Secretary of State or the
Director General of the powers conferred on him by the Fair Trading
▇▇▇ ▇▇▇▇, the Competition ▇▇▇ ▇▇▇▇ and/or Section 12 of the
Electricity Act.
(d) The Primary Borrower shall procure that the relevant Licensee will not
consent to any revocation of the PES Licence (except where a public
electricity supply licence is granted to a member of the Group in its
place) or to any material modification or amendment to or restriction
in the terms and conditions of the PES Licence if such revocation,
modification, amendment or restriction ought to have a Material
Adverse Effect.
(e) The Primary Borrower shall ensure at all times that the Licensee under
the PES Licence has sufficient working capital to finance the
performance and discharge of its duties as a Public Electricity
Supplier in accordance with the provisions of the Electricity Act and
the terms and conditions of the PES Licence.
12.9 NO OUTSTANDING LOANS
The Primary Borrower shall procure that (except for investments
constituting Liquid Assets) no Licensee will have outstanding at any one
time any loans to (other than deposits with, or investments in debt
instruments of, any institution authorised under the Banking ▇▇▇ ▇▇▇▇, or
the Building Societies Act 1986 or any European Authorised Institution as
defined in the Banking Act 1987) or investments in any person other than a
member of the Group in excess of an aggregate of (pound)5 million.
12.10 ENVIRONMENTAL AND SAFETY LAWS
Each Obligor shall, and the Primary Borrower shall procure that each other
member of the Group will, comply with any environmental or safety laws
applicable to it where failure to do so has a Material Adverse Effect.
12.11 INSURANCE
Each Obligor shall, and the Primary Borrower shall procure that each member
of the Group will have insurance and maintain insurance in respect of
property damage, third party liability and such other risks in respect of
its business and assets is in accordance with good industry practice.
12.12 GENERATION BUSINESS
The Primary Borrower shall procure that any Licensee from time to time
licensed to carry on the whole or part of the Generation Business will not
consent to any revocation of the relevant Generation Licence (except where
a Generation Licence is granted to a member of the Group in its place or
the same arises in respect of a disposal permitted under clause 11.4) or to
any material modification or amendment to or restriction in the terms and
74
conditions of such Generation Licence if such revocation, modification,
amendment or restriction might reasonably be expected to have a Material
Adverse Effect.
12.13 BUSINESS OF REC
Each Obligor shall procure that the REC will not enter into or engage in
any business or activity other than the Supply Business, a Second-Tier
Supply Business or the Distribution Business or the business of a holding
company of the company carrying on any such business, other than any
business or activity the aggregate turnover of which does not in any
financial year exceed 5 per cent. of the aggregate turnover of the Supply
Business, the Second-Tier Supply Businesses and the Distribution Business
(excluding the turnover on transactions which the Supply Business, any of
the Second-Tier Supply Businesses and/or the Distribution Business made
with each other) in the immediately preceding financial year.
12.14 CHANGE IN BUSINESS
No Obligor shall, and the Primary Borrower will procure that no other
member of the Group shall, carry on any business other than those which are
usual for energy companies and electricity companies (including, without
limitation, electricity distribution, supply and generation and energy
trading and business activities related to the gas, telecommunications and
water industries) in Europe or the business of a holding company of any
company carrying on any such business. Provided that the limitation of
business activities contained in this clause 11.14 will not apply to any
other business activities carried on by members of the Group as long as
such other business activities do not in aggregate account for more than
10% of the consolidated gross assets or consolidated gross revenues of the
Group (as calculated in accordance with the Appropriate Accounting
Principles).
12.15 FUNCTIONS OF THE PRIMARY BORROWER
(a) The Primary Borrower shall not carry on any business other than being
the holding company of the Group (and any Project Finance
Subsidiaries) and anything ancillary to any of the other matters
described in this clause 11.15.
(b) The Primary Borrower shall not own any material assets other than (i)
any Liquid Assets held by it from time to time, (ii) its shareholding
in ▇▇▇▇▇ 2, (iii) its direct or indirect interest in all persons
("EQUITY SPVS") issuing or guaranteeing Equity-Credit Preferred
Securities and all intermediate undertakings through which it holds
its interest in Equity SPVs, (iv) its direct or indirect interest in
all SPVs and all intermediate undertakings through which it holds its
interest in SPVs (provided always that, in respect of (iii) and (iv)
above each such intermediate undertaking's sole purpose is to hold
directly or indirectly an interest in an SPV or an Equity SPV and, if
applicable, act as a conduit as between the SPV or Equity SPV and the
Primary Borrower for any sums lent or arising or investments made in
connection with the SPVs and Equity SPVs, issue or issues of capital
market instruments or other securities), and (v) Indebtedness due to
the Primary Borrower.
75
(c) The Primary Borrower shall not incur any liabilities (whether or not
in connection with Borrowed Money) other than:
(i) as a result of borrowing under this Agreement or liabilities
otherwise incurred in connection with this Agreement or the
Original Facilities Agreement, or under the (pound)300,000,000
revolving credit facility arranged by Chase Manhattan plc to be
entered into by the Primary Borrower on or about the Effective
Date, or as a result of borrowing (subject, in the case of any
proposed Borrowed Money from ▇▇▇▇▇ 2 or Bidco, to clause 11.18
(Indebtedness of ▇▇▇▇▇ 2 to the Primary Borrower) and of Bidco to
▇▇▇▇▇ 2)) from other members of the Group or other persons
(provided that each amount borrowed other than borrowings not
exceeding (pound)30,000,000, is on-lent to ▇▇▇▇▇ 2), or
liabilities incurred in connection with the Acquisition; or
(ii) incurred as a result of the Primary Borrower's existence and
administrative operation in accordance with the terms of this
Agreement, including, without limitation, audit and legal fees,
taxation and other expenses incurred by it in acting as
contemplated by this Agreement; or
(iii) under any guarantee, indemnity or similar instrument in respect
of Borrowed Money incurred by: (aa) a member of the Group which
is, and for so long as such guarantee, indemnity or similar
instrument is outstanding, remains, a holding company of the REC,
or (bb) an SPV; or
(iv) under any guarantee, undertaking, performance bond or similar
instrument or obligation, not being in respect of Borrowed Money,
in respect of the liabilities and/or obligations of members of
the Group; or
(v) under any guarantee given by the Primary Borrower in replacement
of, or in respect of the same obligations as are guaranteed
under, certain guarantees given by Energy Holdings (No. 3)
Limited (formerly The Energy Group PLC) on or prior to 22 October
1998 in respect of the obligations of former direct and indirect
Subsidiaries of Energy Holdings (No. 3) Limited.
(vi) under any guarantee of or in connection with any Equity-Credit
Preferred Securities.
12.16 DERIVATIVE TRANSACTIONS
No Obligor shall, and the Primary Borrower will procure that no other
member of the Group shall, enter into any Derivatives Transaction other
than:
(a) in connection with the management of foreign currency or interest rate
exposures likely to be incurred in the conduct of the Group's business
or that of any Project Finance Subsidiary, and/or
(b) any contracts where the exposure is principally related to the future
generation, availability, supply, distribution or pricing of fuel,
power or energy, or other energy-related risks.
76
12.17 PROJECT FINANCE SUBSIDIARIES
All transactions and arrangements between the Group on the one hand and
Project Finance Subsidiaries (or members of the Group who incur Project
Finance Borrowings falling within paragraph (c) of the definition of
Project Finance Borrowings but only in connection with the Project to which
such Project Finance Borrowing directly relates) on the other shall be (a)
on arm's length terms, and (b) to the extent that they involve liability
of, or recourse to the Group in respect of Indebtedness to finance or
refinance, or in respect of the financing or refinancing of, a Project,
such liability or recourse shall be limited to the degree of recourse
described in paragraph (c) of the definition of "Project Finance
Borrowings" unless the Primary Borrower shall promptly on the incurrence of
such liability or right of recourse notify the Facility Agent that the
relevant Project Finance Borrowing which is the subject of such liability
or right of recourse shall have ceased or shall thereupon cease to be a
Project Finance Borrowing, attaching a detailed re-calculation of the
Leverage Ratio showing the effect of such re-designation.
12.18 INDEBTEDNESS OF ▇▇▇▇▇ 2 TO THE PRIMARY BORROWER The Primary Borrower will
procure that:
(a) ▇▇▇▇▇ 2 will not repay, forgive or novate nor shall the Primary
Borrower accept the repayment or novation of amounts outstanding from
▇▇▇▇▇ 2 to the Primary Borrower if and to the extent that such
repayment, novation or forgiveness of any indebtedness from time to
time due from ▇▇▇▇▇ 2 to the Primary Borrower (after application of
the proceeds of such repayment, forgiveness or novation by the Primary
Borrower) would result (and shall ensure that it does not subsequently
result) in the net amount owing (including any accrued interest) by
▇▇▇▇▇ 2 to the Primary Borrower falling short of the aggregate of the
Term Advance and the Revolving Advances and all other Borrowed Money
of the Primary Borrower by more than(pound)30,000,000 (without double
counting where Borrowed Money guaranteed by the Primary Borrower is
also lent to it) (including in each case any accrued interest) unless
the Primary Borrower shall immediately repay an equivalent amount of
the Term Advance and to the extent that no Term Advance is
outstanding, repay an equivalent amount of the Revolving Credit
Facility.
(b) Once the Term Advance has been repaid in full and no other amount is
due, owing or incurred by the Primary Borrower under the Facilities
none of the restrictions in this clause 11.18 shall apply until and
unless the Primary Borrower shall draw any further Revolving Advance
and for so long as any such Revolving Advance is outstanding.
(c) Any amount which purports to be lent from ▇▇▇▇▇ 2 to the Primary
Borrower shall for the purpose of this clause be deemed to be applied
in repayment of any existing indebtedness due from ▇▇▇▇▇ 2 to the
Primary Borrower at the relevant time and the provisions of this
clause shall therefore apply to the lending of any such amount exactly
as if it had been a repayment of debt.
77
(d) Any amount lent down by the Primary Borrower to ▇▇▇▇▇ 2 which
represents the on-lending of Borrowed Monies incurred or guaranteed by
the Primary Borrower (the "Connected Borrowing") shall bear a rate of
interest at least equal to that applicable to the Connected Borrowing
from time to time.
(e) The Primary Borrower shall procure that each loan owing from The
Energy Group Limited to Energy Group Overseas B.V. ("EGO B.V."), which
originally came into being as a result of the on lending through the
Group of the proceeds of the issuance by EGO B.V. of $500,000,000
aggregate principal amount of unsecured debt securities ("Yankee
Bonds") in October 1997 carries a rate of interest at least equal to
that of the respective series of the Yankee Bonds and is not
discharged, novated or assigned in any way which would either:
(i) cause the ultimate obligor to be a company which is not a holding
company of the REC; or
(ii) cause the ultimate beneficiary of the series of related
indebtedness to be a person other than the Group Company which is
the obligor under the Yankee Bonds.
12.19 RANKING OF BOND ISSUER
(a) Where the Primary Borrower issues a guarantee of the obligations of an
SPV in respect of a raising of Borrowed Money by that SPV the amount
raised by such SPV shall be on-lent to the Primary Borrower on terms
that the obligations of the Primary Borrower in respect of repayment
of that loan are expressly subordinated to the claims of all other
unsecured and unsubordinated creditors of the Primary Borrower in the
event of the insolvency of the Primary Borrower or such loan is made
on such terms as are, in the opinion of the Facility Agent (acting
reasonably), effective to provide that the creditors of the SPV under
the relevant capital market instrument will not (after taking account
of the possibility of the SPV making an intra-group claim against the
Primary Borrower, in addition to the claim of the creditors of such
SPV under the Primary Borrower's guarantee) become entitled to a claim
against the Primary Borrower that ranks better than pari passu with
the claims of the Finance Parties under the Finance Documents on a
liquidation of the Primary Borrower.
(b) Where the SPV is an unlimited company (or any other entity whose
immediate owner would have unlimited liability for that entity's
liabilities and obligations), the Primary Borrower shall hold its
interest in the SPV indirectly, by virtue of the Primary Borrower
being the holder of the issued share capital of one or more private
limited companies (or any other entities whose immediate owner would
have limited liability (by reference only to unpaid share capital or a
similar concept) for that entity's liabilities or obligations) which
is the direct or indirect owner of such SPV.
78
(c) The Primary Borrower shall ensure that no Group Company other than the
Primary Borrower or any holding company of the relevant SPV shall:
(i) transfer cash or assets to an SPV or holding company of an SPV;
or
(ii) give any guarantee, indemnity or other assurance for the
obligations of an SPV or holding company of an SPV, unless the
Facilities shall simultaneously be equally and rateably secured
by a guarantee from the same Group Company.
(d) The Primary Borrower shall not and shall ensure that no holding
company of the relevant SPV shall:
(i) transfer cash or assets to an SPV or holding company of an SPV
save only to the extent required to service interest, principal
and/or premium payable under capital markets instruments issued
by the SPV or as the Primary Borrower may be required to pay
pursuant to the terms of any loan between the SPV and the Primary
Borrower made pursuant to clause 11.19(a) or as may be required
initially to capitalise an SPV in accordance with professional
advice received or to meet liabilities of such SPV arising from
its existence and administration operation in accordance with the
terms of this Agreement including audit and legal fees, taxation
and other expenses incurred by it; or
(ii) give any guarantee, indemnity or other assurance for the Borrowed
Money of an SPV or holding company of an SPV, unless the
Facilities shall simultaneously be equally and rateably secured
by a guarantee from the same Group Company (save for any
guarantee given by the Primary Borrower pursuant to clause
11.19(a))
12.20 ADDITIONAL GUARANTORS
The Primary Borrower shall ensure that, if after the signing of this
Agreement, any member of the Group or any Relevant Person gives any
guarantee of any Indebtedness of an Obligor in respect of Borrowed Money,
that person shall simultaneously become a Guarantor under this Agreement in
accordance with clause 24.1.
12.21 EQUITY-CREDITPREFERRED SECURITIES
Nothing in this Agreement shall prevent, and this Agreement shall not be
breached by, the issuance of Equity-CreditPreferred Securities or the
incurring by any member of the Group of guarantees thereof complying with
paragraph (iv) of the definition thereof.
12.22 RESTRICTIONS RELATED TO EXCESS EQUITY FUNDING
Any Borrowed Money which is raised with a view to repaying, or is used to
repay, all or part of the Excess Equity Funding, or which is raised to
refinance any Indebtedness which was incurred for that purpose or so used,
shall rank pari passu with the Facilities, and shall be raised by the
79
Primary Borrower or by an SPV guaranteed by the Primary Borrower, and not
by any other member of the Group.
13. EVENTS OF DEFAULT
13.1 EVENTS OF DEFAULT
Each of the events set out below is an Event of Default (whether or not
caused by any reason whatsoever outside the control of any Relevant Company
(or any other person)) namely if:
(a) NON-PAYMENT: any Obligor fails to pay any sum due from it under any of
the Finance Documents on its due date in the manner stipulated in the
relevant Finance Document (or within three Banking Days of the due
date if the delay is caused by technical difficulties or
administrative error in the transfer of funds); or
(b) BREACH OF OTHER OBLIGATIONS: any Borrower or other Obligor commits any
breach of or omits to observe any of the obligations or undertakings
expressed to be assumed by it under any of the Finance Documents
(other than any such obligations referred to in clause 12.1(a)
(Non-payment)) and in respect of any such breach or omission which, in
the reasonable opinion of the Majority Banks, is capable of remedy,
such action as shall remedy the same to the reasonable satisfaction of
the Majority Banks shall not have been taken within 21 days of the
relevant Obligor becoming aware of such default; or
(c) MISREPRESENTATION: any representation, warranty or statement made or
deemed to be made or repeated by or on behalf of any Borrower or other
Obligor in, or in connection with, any of the Finance Documents or in
any notice, accounts, certificate or statement referred to in or
delivered under any of the Finance Documents is or proves to have been
incorrect or misleading and if capable of being remedied, in the
reasonable opinion of the Majority Banks, is not remedied to the
reasonable satisfaction of the Majority Banks 21 days after the date
on which the relevant Group Company becomes aware of such
misrepresentation; or
(d) CROSS-DEFAULT:
(i) any Borrowed Money of a member of the Group is not paid when due
or within any originally stated applicable grace period; or
(ii) (by reason of an event of default or default howsoever described)
any Borrowed Money of a member of the Group is declared or
becomes capable of being declared to be or otherwise becomes due
and payable prior to its specified maturity; or
(iii) any Borrowed Money of a member of the Group which is repayable
on demand is not repaid on demand being made,
in circumstances where, in all or any of the above paragraphs, the
Borrowed Money amounts in aggregate at any one time to more than
(pound)20,000,000 or, if higher, an amount of 2% of Adjusted Share
Capital and Reserves or its equivalent in other currencies, unless the
80
alleged default is being disputed in good faith and the Primary
Borrower has shown to the Facility Agent's satisfaction (acting
reasonably) that it has adequate cash resources to pay that Borrowed
Money and its other debts as they fall due; or
(e) LEGAL PROCESS: (without prejudice to any other provision of this
Agreement) any final judgment or order in an amount exceeding
(pound)2,000,000 (or its equivalent in other currencies) made against
any Relevant Company is not stayed or complied with or paid within 28
days (or in the case of payments, when due (if later)) or a creditor
attaches or takes possession of, or a distress, execution,
sequestration or other process is levied or enforced upon or sued out
against, any part of the undertakings, assets, rights or revenues of
any Relevant Company with a book value or market value in excess of
(pound)2,000,000 and is not discharged or stayed within 14 days; or
(f) INSOLVENCY: any Relevant Company:
(i) is deemed unable to pay its debts in accordance with Section
123(1)(a), (b) or (e) or (2) of the Insolvency ▇▇▇ ▇▇▇▇ unless,
in the case of Section 123(1)(a) only, a statutory notice has
been withdrawn, stayed or dismissed within 14 days; or
(ii) is unable generally to pay its debts as they fall due; or
(g) ADMINISTRATION:
(i) any meeting of the directors of any Relevant Company is convened
for the purpose of considering any resolution to present an
application for an administration order; or
(ii) a petition for an administration order in relation to any
Relevant Company is presented to the court or an administration
order is sought of the court on the basis of an undertaking to
subsequently present a petition which, if in either case it is
being contested by the Relevant Company in good faith with
appropriate proceedings diligently pursued, is not discharged
within 21 days; or
(iii) any Relevant Company passes a resolution to present an
application for an administration order; or
(iv) an administration order is made in relation to any Relevant
Company; or
(h) COMPOSITIONS ETC: any steps are taken, or negotiations commenced, by
any Relevant Company or by its creditors generally with a view to
proposing any kind of composition, scheme of arrangement, compromise
or arrangement, in each case involving such company and its creditors
generally; or
(i) APPOINTMENT OF RECEIVERS AND MANAGERS:
(i) any administrative or other receiver or any manager is appointed
of any Relevant Company or any material part of its assets and/or
undertaking; or
81
(ii) the directors of any Relevant Company request any person to
appoint such a receiver or manager; or
(iii) any other steps are taken to enforce any Security Interest over
all or any material part of the assets and/or undertakings of any
Relevant Company; or
(j) WINDING UP:
(i) any meeting of any Relevant Company is convened for the purpose
of considering any resolution for (or to petition for) its
winding up; or
(ii) any Relevant Company passes such a resolution; or
(iii) any person presents any petition for the winding up of any
Relevant Company (not being a petition which the Primary Borrower
can demonstrate to the satisfaction of the Facility Agent is
frivolous vexatious or an abuse of the process of the court)
which is not dismissed or discharged within 14 days of service
thereof; or
(iv) an order for the winding up of any Relevant Company is made, not
(in any case) being a winding-up of a Subsidiary of the Primary
Borrower involving an amalgamation or reorganisation on a solvent
basis which has been approved in advance by the Facility Agent
(acting reasonably); or
(k) DISSOLUTION: any corporate, legal or administrative proceedings are
commenced by any person (including, without limitation, the Registrar
of Companies) with a view to the dissolution of any Relevant Company,
not being a dissolution involving an amalgamation or reorganisation on
a solvent basis which has been approved in advance by the Facility
Agent (acting reasonably); or
(l) ANALOGOUS PROCEEDINGS: there occurs, in relation to any Relevant
Company, in any country or territory in which it carries on business
or to the jurisdiction of whose courts any part of its assets is
subject, any event which, in the reasonable opinion of the Majority
Banks, appears in that country or territory corresponds with, or has
an effect equivalent to, any of those mentioned in clauses 12.1(e)
(Legal process) to (k) (Dissolution) (inclusive) or any Relevant
Company otherwise becomes subject, in any such country or territory,
to a legal procedure under of any law relating to insolvency,
bankruptcy or liquidation; or
(m) CESSATION OF BUSINESS: other than in relation to a disposal permitted
under this Agreement, any Relevant Company suspends or ceases or
threatens to suspend or cease to carry on its business unless another
member of the Group carries on such business in its place; or
(n) CHANGE OF CONTROL:
(i) Bidco ceases to be a wholly-owned subsidiary (as that term is
used in section 736 of the Act) of ▇▇▇▇▇ 2; or
82
(ii) ▇▇▇▇▇ 2 ceases to be a wholly-owned direct or indirect Subsidiary
of the Parent (other than as permitted by paragraph (iii) below)
and at least a 90% owned direct subsidiary of the Primary
Borrower; or
(iii) less than 50% plus one share of the equity share capital of the
Primary Borrower is held by the Parent (directly or indirectly)
at any time; or
(iv) The Energy Group Limited (company no. 3613919) ceases to be a
wholly-owned Subsidiary of Bidco; or
(v) REC or any other Licensee ceases to be a wholly-owned Subsidiary
of the Primary Borrower; or
(vi) there is a Change in Control of the Parent; or
(o) DISTRIBUTION BUSINESS/GENERATION BUSINESS:
(i) the Group ceases, or threatens to cease, to carry on the
Distribution Business or the Generation Business as a whole;
(ii) all or a majority of the issued shares of any Licensee or any
other Relevant Company or the whole or any material part of the
assets or revenues of (aa) the Distribution Business or (bb) the
Generation Business (taken as a whole) are seized, nationalised,
expropriated or compulsorily acquired by or under the authority
of a Government Entity;
(iii) any change is made in the statutory or regulatory requirements
applicable to the Distribution Business or the Generation
Business or any new statutory or regulatory requirements are
imposed on it which would be reasonably likely to have a Material
Adverse Effect; or
(p) LICENCES:
(i) the Secretary of State or any other person with the ability to do
so gives notice in writing of the revocation of a Licence for any
reason or a Licence ceases to be in full force and effect in any
material respect except where a similar licence is or licences
are granted to a member of the Group in its place;
(ii) without prejudice to paragraph (i) above, any legislation
(whether primary or subordinate) with regard to the creditors of
Licensees or the ability of Licensees to raise finance under a
Licence or with regard to generators or electricity or public
electricity suppliers generally is enacted and that enactment
would be reasonably likely to have a Material Adverse Effect;
(iii) any amendment is made to the terms and conditions of a Licence
and the amendment would be reasonably likely to have a Material
Adverse Effect; or
(q) ELECTRICITY ACT:
83
(i) any of the provisions of the Electricity Act (or any subordinate
legislation) detailing the rights, powers, authorities,
obligations and duties of the Secretary of State or the Director
General, or the manner in or time at which they are to be
exercised, are repealed, amended or introduced in a manner which
would be reasonably likely (in the opinion of the Majority Banks)
to have a Material Adverse Effect; or
(ii) the relevant licensee fails to comply with a final order (within
the meaning of section 25 of the Electricity Act) or with a
provisional order (within the meaning of that section) which has
been confirmed under that section and in either case which has
not been revoked under that section or the validity of which has
not been questioned under section 27 of the Electricity Act, if
such failure to comply would be reasonably likely to have a
Material Adverse Effect; or
(r) POOLING AND SETTLEMENT AGREEMENT: REC or any other member of the Group
ceases to be a party to the Pooling and Settlement Agreement, or any
notice requiring REC or any other member of the Group to cease to be a
party to the Pooling and Settlement Agreement is given to such company
under the relevant clauses of the Pooling and Settlement Agreement,
except where another member of the Group becomes a party to that
agreement in its place or such cesser occurs or such notice is given
in the context of a general disbandment of the Pooling and Settlement
Agreement; or
(s) GAS FRAMEWORK AGREEMENT: the relevant member of the Group ceases to be
a party to the Gas Framework Agreement where this would be reasonably
likely to lead to a Material Adverse Effect, except where another
member of the Group becomes a party to that agreement in its place;
(t) FINANCE DOCUMENTS: any Finance Document is not or ceases to be legal,
valid and binding on or (subject to the Reservations) enforceable
against any Obligor or is alleged by any Borrower or other Obligor to
be ineffective for any reason; or
(u) UNLAWFULNESS: it becomes unlawful at any time for any Borrower or
other Obligor to perform all or any of its material obligations under
any of the Finance Documents; or
(v) MATERIAL ADVERSE EFFECT: at any time after the date of this Agreement
there is a change in the financial condition of an Obligor which has a
Material Adverse Effect.
13.2 ACCELERATION
The Facility Agent may, and, if so requested by the Majority Banks, shall,
without prejudice to any other rights of the Finance Parties after the
happening of an Event of Default, and so long as the same is continuing, by
notice to the Primary Borrower:
(i) declare that the obligation of each Bank to make its Commitments
available shall be terminated, whereupon the Total Commitments in
respect of all Facilities shall be reduced to zero forthwith; and/or
84
(ii) declare that the Advances and all interest, fees and commitment
commission accrued and all other sums payable under the Finance
Documents have become due and payable or have become due and payable
on demand, whereupon the same shall immediately or in accordance with
the terms of such notice, become due and payable or become obligations
payable on demand: and/or
(iii) demand full cash cover for the Outstanding Contingent Liabilities
under all Letters of Credit then outstanding in the currency in which
those Letters of Credit are denominated; and/or
(iv) declare that the Guarantees (or any of them) have become enforceable
(in whole or in part).
On or at any time after the making of any such declaration, the Facility
Agent shall be entitled, to the exclusion of the Borrowers, to select the
duration of Interest Periods.
14. INDEMNITIES
14.1 MISCELLANEOUS INDEMNITIES
The Primary Borrower shall within three Banking Days of demand indemnify
each Finance Party, without prejudice to any of their other rights under
any of the Finance Documents, against any cost, loss, claim, expense
(including loss of Applicable Margin and legal fees) or liability together
with any Tax thereon which such Finance Party shall certify as sustained or
incurred by it as a consequence of:
(a) any default in payment by any Obligor of any sum under any of the
Finance Documents when due,
(b) the occurrence of any other Default,
(c) any prepayment of the Facilities or part thereof being made otherwise
than on an Interest Payment Date or, as the case may be, Maturity Date
relative thereto,
(d) any Utilisation not being made for any reason (excluding, but only to
the extent of the indemnification of a particular Finance Party, any
gross negligence or wilful default by such Finance Party) after a
Drawdown Notice has been given, or
(e) any notice sent by telefax failing to be received
including, in any such case, but not limited to, any loss or expense
sustained or incurred in maintaining or funding its Contributions or any
part thereof or in liquidating or re-employing deposits from third parties
acquired or contracted for to fund all or any part of its Contributions or
any other amount owing to such Finance Party.
14.2 CURRENCY OF ACCOUNT; CURRENCY INDEMNITY
(a) No payment by any Obligor under any of the Finance Documents which is
made in a currency other than the currency ("CONTRACTUAL CURRENCY") in
which such payment is required to be made pursuant to the relevant
Finance Documents shall discharge the obligation in respect of which
it is made except to the extent of the net proceeds in the Contractual
85
Currency received by the Facility Agent upon the sale of the currency
so received, after taking into account any premium and costs of
exchange in connection with such sale.
(b) The Finance Parties shall not be obliged to accept any such payment in
a currency other than the Contractual Currency nor shall the Finance
Parties be liable to any Obligor for any loss or alleged loss arising
from fluctuations in exchange rates between the date on which such
payment is so received by the Facility Agent and the date on which the
Facility Agent effects such sale, as to which the Facility Agent shall
(as against each Obligor) have an absolute discretion.
(c) If any sum due from any Obligor under any Finance Documents or any
order or judgment given or made in relation hereto is required to be
converted from the Contractual Currency or the currency in which the
same is payable under such order or judgment (the "FIRST CURRENCY")
into another currency (the "SECOND CURRENCY") for the purpose of (i)
making or filing a claim or proof against any Obligor, (ii) obtaining
an order or judgment in any court or other tribunal or (iii) enforcing
any order or judgment given or made in relation to any of the Finance
Documents, each Obligor shall indemnify and hold harmless each Finance
Party from and against any loss suffered as a result of any difference
between (A) the rate of exchange used for such purpose to convert the
sum in question from the first currency into the second currency and
(B) the rate or rates of exchange at which each such Finance Party may
the ordinary course of business purchase the first currency with the
second currency upon receipt of a sum paid to it in satisfaction, in
whole or in part, of any such order, judgment, claim or proof.
(d) Any amount due from any Obligor under the indemnity contained in this
clause 13.2 shall be due as a separate debt and shall not be affected
by judgment being obtained for any other sums due under or in respect
of any of the Finance Documents and the term "RATE OF EXCHANGE"
includes any premium and costs of exchange payable in connection with
the purchase of the first currency with the second currency.
14.3 ACQUISITION FINANCE INDEMNITY
The Primary Borrower shall forthwith on demand indemnify each Finance Party
and each of their respective Affiliates and Subsidiaries and its respective
directors officers and employees (each being an "INDEMNIFIED PERSON") from
and against any cost, claim, loss, expense (including without limitation,
the fees, costs and expenses of legal advisors arising from any legal
procedures (including, without limitation, any administrative regulatory or
judicial actions or investigations) to which that Indemnified Person
becomes subject or joined as a party or which may be threatened or pending
against it) or liability together with any Tax thereon which may be
incurred or asserted against such Indemnified Person arising out of or in
connection with the Acquisition or it agreeing to finance or refinance any
acquisition by Bidco or any person acting in concert with Bidco of any
shares or share options of any class in Target or the use of the proceeds
of any Advance (save to the extent any such loss or liability arises as a
86
result of the gross negligence or wilful default of the relevant Finance
Party).
14.4 ECB RESERVE REQUIREMENTS
The Primary Borrower shall on demand indemnify each Finance Party against
any cost or loss suffered by it as a result of complying with European
Central Bank reserve requirements to the extent such requirements relate to
its participation in the Facilities and are not recoverable by such Bank
under clause 14.2 (Increased Costs).
14.5 NO SETTLEMENT WITHOUT CONSENT
The Primary Borrower agrees on its own behalf and on behalf of each other
member of the Group that, without the prior written consent of the Facility
Agent and the Majority Banks, no member of the Group will settle,
compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification could be sought under the indemnification provisions of
clauses 7.6 (Stamp and other duties), 8.4 (Facility Agent may assume
receipt), 8.5 (Grossing-up for Taxes), 8.6 (Qualifying Bank), 13
(Indemnities) or 20.2 (Indemnity from Banks) (whether or not any indemnitee
thereunder (the "INDEMNITEE") is an actual or potential party to such
claim, action, suit or proceeding), unless such settlement, compromise or
consent does not include any statement as to an admission of fault,
culpability or failure to act by or on behalf of any Indemnitee and does
not involve any payment of money or other value by any Indemnitee or any
injunctive relief or factual findings or stipulations binding on any
Indemnitee.
15. UNLAWFULNESS, INCREASED COSTS, ALTERNATIVE INTEREST RATES
15.1 UNLAWFULNESS
(a) If it is or becomes contrary to any law or regulation or contrary to
any request from or requirement of any fiscal monetary or other
authority (with which such Finance Party would normally comply) for a
Finance Party to contribute to any Utilisation or to maintain its
Commitments in respect of a Facility or fund its Contribution to a
Facility, such Finance Party shall promptly after becoming aware of
the same, through the Facility Agent, notify the Primary Borrower
whereupon (a) such Finance Party's Commitments shall be reduced to
zero (and, if it is the Issuing Bank, it shall have no further
obligation to Issue Letters of Credit if to do so would in the opinion
of the Issuing Bank be or become contrary to any law or regulation or
contrary to any request from or requirement of any fiscal monetary or
other authority (with which such Finance Party would normally comply))
and (b) if the Facility Agent on behalf of the Finance Party so
requires each relevant Borrower shall be obliged to prepay the
Contribution of such Finance Party to such Facility and provide full
cash cover to the Issuing Bank for any Outstanding Contingent
Liabilities of the relevant Finance Party on a future date specified
by the Facility Agent not being earlier than the latest date permitted
87
by the relevant law or regulation or not contrary to such request or
requirement. Any prepayment pursuant to this clause 14.1 shall be made
together with all amounts referred to in clause 6.5 (Prepayments
generally).
(b) When any relevant Borrower makes any prepayment under this clause 14.1
the Issuing Bank shall not release the amount of such prepayment which
is cash cover for any Outstanding Contingent Liabilities to such
Finance Parties but shall place such monies on suspense account and
such money may be used as collateral for the actual and the contingent
liabilities of that Finance Party to the Issuing Bank, which
liabilities shall remain in full force and effect notwithstanding such
prepayment; and such Finance Party shall remain liable under all the
relevant provisions of this Agreement to the Issuing Bank to pay in
cash any shortfall between the amount held by the Facility Agent and
its liabilities under this Agreement.
15.2 INCREASED COSTS
If the result of any change in, or in the interpretation or application of,
or the introduction of, (after the date of this Agreement):
(a) any law; or
(b) any regulation, request or requirement (which if not having the force
of law is one of a kind with which the relevant Finance Party or, as
the case may be, its holding company habitually complies), including
those relating to Taxation, capital adequacy, European monetary union,
liquidity, reserve assets, cash ratio deposits and special deposits or
requested or required by any central bank (including without
limitation the European Central Bank) or other fiscal monetary or
other authority,
is to:
(i) subject any Finance Party or its holding company to Taxes or
change the basis of Taxation of any Finance Party with respect to
any payment under this Agreement (other than Taxes or Taxation on
the overall net income, profits or gains of such Finance Party
imposed in the jurisdiction in which it is resident or
incorporated or its principal office or Facility Office is
located); and/or
(ii) increase the cost to, or impose an additional cost on, any
Finance Party or its holding company in entering into or
performing its obligations under the Finance Documents and/or in
making or keeping available all or part of such Finance Party's
Commitments and/or maintaining or funding all or part of such
Finance Party's Contributions (and/or providing any guarantee or
indemnity of any other Finance Party's obligations); and/or
(iii) reduce the amount payable or the effective return to any Finance
Party under this Agreement; and/or
88
(iv) reduce any Finance Party's or its holding company's rate of
return on its overall capital by reason of a change in the manner
in which it is required to allocate capital resources in respect
of all or any of the advances or obligations comprised in a class
of advances or obligations formed by or including such Finance
Party's share in Utilisations made or to be made under this
Agreement; and/or
(v) require any Finance Party or its holding company to make a
payment or forgo a return calculated by reference to or on any
amount received or receivable by such Finance Party under this
Agreement; and/or
(vi) require any Finance Party or its holding company to incur or
sustain a loss (including a loss of future potential profits) by
reason of being obliged to deduct all or part of such Finance
Party's Commitments or Contributions from its capital for
regulatory purposes,
then and in each such case (but subject to clause 8.6 (Qualifying Bank) and
14.3 (Exceptions)):
(A) such Finance Party shall notify the Primary Borrower through
the Facility Agent in writing of such event promptly upon
its becoming aware of the same; and
(B) following such notification the Primary Borrower shall,
whether or not such Finance Party's Contribution to any
Facility has been repaid, pay to the Facility Agent on
demand for the account of such Finance Party the amount
which such Finance Party specifies (in a certificate setting
forth the basis of the computation of such amount but not
including any matters which such Finance Party or its
holding company regards as confidential) is required to
compensate such Finance Party and/or its holding company in
its sole discretion for such liability to Taxes, increased
or additional cost, reduction, payment, forgone return or
loss.
For the purposes of this clause 14.2 each Finance Party may in good faith
allocate or spread costs and/or losses among its assets and liabilities (or
any class thereof) on such basis as it considers appropriate and fair.
Each Finance Party shall use all reasonable endeavours to notify the
Primary Borrower as soon as reasonably practicable of any such increased
cost, reduction, payment or forgone return which is to result in a demand
under clause 14.2(B).
For the purposes of this clause 14.2 and clause 14.4 (Mitigation) "HOLDING
COMPANY" means, in relation to a Finance Party, the company or entity (if
any) within the consolidated supervision of which such Finance Party is
included.
For the purposes of this clause 14.2, the Obligors acknowledge that any
requirement that the Finance Parties treat interest hereunder as anything
other than interest shall be a change in law or the interpretation thereof.
89
15.3 EXCEPTIONS
Nothing in clause 14.2 (Increased costs) shall entitle any Finance Party to
receive any amount in respect of compensation for any such liability to
Taxes, increased or additional cost, reduction, payment, forgone return or
loss to the extent that the same:
(a) is taken into account in calculating the Mandatory Cost Rate; or
(b) is (or would be if the Finance Party were or continued to be a
Qualifying Lender) the subject of an additional payment under clause
8.5 (Grossing-up for Taxes); or
(c) arises as a consequence of (or of any law or regulation implementing)
(i) the proposals for international convergence of capital measurement
and capital standards published by the Basle Committee on Banking
Regulations and Supervisory Practices in July 1988 and/or (ii) any
applicable directive of the European Union unless (in each case) it
results from any change in, or in the interpretation or application
of, such proposals or any such applicable directive (or any law or
regulation implementing the same) occurring after the date hereof; or
(d) is attributable to Taxation save where it is recovered under clause
14.2(i) (Increased Costs); or
(e) is attributable to the wilful default or gross negligence of a Finance
Party.
For the purposes of clause 14.3(c) the term "APPLICABLE DIRECTIVE" means
(exclusively) each of the Own Funds Directive (89/299/EEC of 17th April
1989), the Solvency Ratio Directive (89/647/EEC of 18th December 1989) and
the Capital Adequacy Directive (93/6/EEC of 15 March 1993) as the foregoing
have been amended up to the date of this Agreement.
15.4 MITIGATION
If in respect of any Finance Party (an "AFFECTED BANK"), circumstances
arise or exist which would result in: (a) any Obligor being required to
make an increased payment to that Finance Party pursuant to clause 8.5
(Grossing-up for Taxes);
(b) the reduction of that Finance Party's Commitment in respect of any
Facility to zero or any Borrower being required to prepay that Finance
Party's Contribution to any Facility pursuant to clause 14.1
(Unlawfulness);
(c) any Obligor being required to make a payment to any Finance Party to
compensate such Finance Party or its holding company for a liability
to Taxes, increased or cost, reduction, payment, forgone return or
loss pursuant to clause 14.2(B) (Increased Costs); or
(d) any Obligor not being entitled to a deduction for UK corporation tax
purposes in respect of interest payable under this Agreement to that
Finance Party;
then, without in any way limiting, reducing or otherwise qualifying the
obligations of any Obligor under clause 8 (Payments and Taxes, Accounts and
Calculations) and this clause 14 (Unlawfulness, increased costs,
90
alternative interest rates) (and subject to the Obligor's rights under
clause 6.5 (Prepayments generally), such Finance Party shall, in
consultation with the Facility Agent, endeavour to take such reasonable
steps (and/or, in the case of clause 14.2(B) (Increased Costs) and where
the increased or additional cost, reduction, payment, forgone return or
loss is that of its holding company, endeavour to procure that its holding
company takes such reasonable steps) as are open to it (or, as the case may
be, its holding company) to mitigate or remove such circumstances unless
the taking of such steps might (in the opinion of such Finance Party) be
prejudicial to such Finance Party (or, as the case may be, its holding
company) and provided that such Finance Party shall be under no obligation
to take any such action if in the opinion of such Finance Party to do so
might have any adverse effect upon its business, operations or financial
condition.
16. SET-OFF AND PRO-RATA PAYMENTS
16.1 SET-OFF
(a) Each Obligor hereby agrees that each Finance Party may at any time,
whilst any Default shall be continuing notwithstanding any settlement
of account or other matter whatsoever, combine or consolidate all or
any of its then existing accounts wheresoever situate (including
accounts in the name of such Finance Party or of such Obligor jointly
with others), whether such accounts are current, deposit, loan or of
any other nature whatsoever, whether they are subject to notice or not
and whether they are denominated in Sterling or in any other currency,
and set-off or transfer any sum standing to the credit of any one or
more such accounts in or towards satisfaction of any moneys,
obligations or liabilities which are due and payable by such Obligor
to such Finance Party under the Finance Documents but are unpaid.
(b) For this purpose each Finance Party is authorised to purchase with the
moneys standing to the credit of such account such other currencies as
may be necessary to effect such application. No Finance Party shall be
obliged to exercise any right given to it by this clause 15.1.
(c) Each Finance Party shall notify the Facility Agent promptly upon the
exercise or purported exercise of any right of set-off in relation to
any member of the Group giving full details in relation thereto and
the Facility Agent shall inform the other Finance Parties.
16.2 PRO-RATA PAYMENTS
(a) If at any time any Bank (the "RECOVERING BANK") receives or recovers
any amount owing to it by any Obligor under this Agreement by direct
payment, set-off or in any manner other than by payment through the
Facility Agent (not being a payment received from a Substitute or a
sub-participant in such Bank's Contribution to any Facility or any
other payment of an amount due to the Recovering Bank for its sole
account), the Recovering Bank shall, within two Banking Days of such
receipt or recovery (a "RELEVANT RECEIPT") notify the Facility Agent
of the amount of the Relevant Receipt. If the Relevant Receipt exceeds
91
the amount which the Recovering Bank would have received if the
Relevant Receipt had been received by the Facility Agent then:
(i) within two Banking Days of demand by the Facility Agent, the
Recovering Bank shall pay to the Facility Agent an amount equal
to the excess;
(ii) the Facility Agent shall treat the excess amount so paid by the
Recovering Bank as if it were a payment made by the relevant
Obligor and shall distribute the same to the Banks (other than
the Recovering Bank); and
(iii) as between the relevant Obligor and the Recovering Bank, the
excess amount so re-distributed shall be treated as not having
been paid but the obligations of the relevant Obligor to the
other Banks shall, to the extent of the amount so re-distributed
to them, be treated as discharged.
(b) If any part of a Relevant Receipt subsequently has to be wholly or
partly refunded by the Recovering Bank (whether to a liquidator or
otherwise) each Bank to which any part of such Relevant Receipt was so
re-distributed shall on request from the Recovering Bank repay to the
Recovering Bank such Bank's pro-rata share of the amount which has to
be refunded by the Recovering Bank.
(c) Each Bank shall on request supply to the Facility Agent such
information as the Facility Agent may from time to time request for
the purpose of this clause 15.2.
(d) Notwithstanding the foregoing provisions of this clause 15.2, no
Recovering Bank shall be obliged to share any Relevant Receipt which
it receives or recovers pursuant to legal proceedings taken by it to
recover any sums owing to it under this Agreement with any other party
which has a legal right to, but does not, either join in such
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 Bank are instituted by it in
breach of clause 22.3 (Majority Bank matters: enforcement).
(e) The amounts due from each relevant Obligor to each of the Banks shall
reflect any payments and receipts among the Banks prescribed by this
clause.
(f) Nothing in this clause 15.2 shall prevent the Issuing Bank from
recovering from the relevant Borrowers any amounts due under a Letter
of Credit issued by the Issuing Bank or appropriating any cash cover
provided by an Obligor under this Agreement provided that any cash
cover not ultimately applied in respect of an amount due under a
Letter of Credit shall be turned over to the Facility Agent and
treated as a Relevant Receipt to which the provisions of this clause
15.2 will generally apply.
92
16.3 NO RELEASE
For the avoidance of doubt it is hereby declared that failure by any
Recovering Bank to comply with the provisions of clause 15.2 (Pro-rata
payments) shall not release any other Recovering Bank from any of its
obligations or liabilities under clause 15.2 (Pro-rata payments).
16.4 NO CHARGE
The provisions of this clause 15 (Set-off and pro-rata payments) are not
intended to, shall not, and shall not be construed so as to, constitute a
charge by a Bank. In particular it is not intended to create a charge over
all or any part of a sum received or recovered by any Bank in the
circumstances mentioned in clause 15.2 (Pro-rata payments).
17. ASSIGNMENT, SUBSTITUTION AND LENDING OFFICES
17.1 BENEFIT AND BURDEN
This Agreement shall be binding upon, and enure for the benefit of, the
Finance Parties and the Obligors and their respective successors,
transferees and assigns.
17.2 NO ASSIGNMENT BY THE OBLIGORS
The Obligors may not assign or otherwise transfer any of their respective
rights or obligations under any of the Finance Documents.
17.3 SUBSTITUTION
Each Bank (an "EXISTING BANK") may at any time assign all or any of its
rights and benefits under the Finance Documents or novate in accordance
with clauses 16.5 (Substitution Certificate) and 16.12 (Restrictions on
novations) (but not otherwise) all or any part of its rights, benefits
and/or obligations under the Finance Documents to another Qualifying Bank
(a "SUBSTITUTE") with the consent of the Issuing Bank, and with the consent
of the Primary Borrower (not to be unreasonably withheld or delayed).
17.4 ASSIGNMENT
If any Bank assigns all or any of its rights and benefits under the Finance
Documents in accordance with clause 16.3 (Substitution), then, unless and
until the assignee has agreed with the other Finance Parties and the
Obligors that it shall be under the same obligations towards each of them
as it would have been if it had been an original party thereto as a Bank,
the other Finance Parties and the Obligors shall not be obliged to
recognise that assignee as having the rights against each or any of them
which it would have had if it had been such a party thereto.
17.5 SUBSTITUTION CERTIFICATE
Subject to clause 16.6 (Reliance on Substitution Certificate), if a duly
completed Substitution Certificate duly executed by the Existing Bank and
the Substitute is delivered to and countersigned by the Facility Agent (for
itself and the other parties to this Agreement other than the Existing
Bank), then on the Effective Date (as specified in that Substitution
Certificate) to the extent that the Existing Bank's rights, benefits and
obligations under the Finance Documents are expressed in such Substitution
Certificate to be the subject of a novation in favour of the Substitute
effected pursuant to this clause 16.5:
93
(i) the existing parties to the Finance Documents and the Existing Bank
shall be released from their respective obligations towards one
another under the Finance Documents ("DISCHARGED OBLIGATIONS") except
for any obligation which the Existing Bank has to the Issuing Bank
under clause 4.7 (Bank's Guarantee and Indemnity) before the date on
which the novation takes place unless otherwise agreed in writing by
the Issuing Bank and their respective rights against one another under
the Finance Documents ("DISCHARGED RIGHTS") (except with respect to
antecedent breaches) shall be cancelled;
(ii) the Substitute party to such Substitution Certificate and the existing
parties to the Finance Documents shall assume obligations towards each
other which differ from the discharged obligations only insofar as
they are owed to or assumed by such Substitute instead of to or by
such Existing Bank;
(iii) the Substitute party to such Substitution Certificate and the
existing parties to the Finance Documents shall acquire rights against
each other which differ from the discharged rights only insofar as
they are exercisable by or against such Substitute instead of by or
against such Existing Bank; and
(iv) the Finance Parties shall acquire the same rights and benefits and
assume the same obligations between themselves as they would have
acquired and assumed had such Substitute been an original party hereto
as a Bank with the rights, benefits and/or obligations acquired or
assumed by it as a result of such transfer;
and, on such Effective Date, the Substitute shall pay to the Facility Agent
for its own account a fee of (pound)750. The Facility Agent shall promptly
deliver a copy of such Substitution Certificate to the Primary Borrower.
17.6 RELIANCE ON SUBSTITUTION CERTIFICATE
The Facility Agent (on behalf of itself) and the Obligors shall be fully
entitled to rely on any Substitution Certificate delivered to the Facility
Agent in accordance with the foregoing provisions of this clause 16
(Assignment, Substitution and Lending offices) which is complete and
regular on its face as regards its contents and purportedly signed on
behalf of the relevant Existing Bank(s) and the Substitute(s) and none of
the Facility Agent and the Obligors shall have any liability or
responsibility to any party as a consequence of placing reliance on and
acting in accordance with any such Substitution Certificate if it proves to
be the case that the same was not authentic or duly authorised.
17.7 AUTHORISATION OF FACILITY AGENT
Each party to this Agreement irrevocably authorises the Facility Agent to
counter-sign each Substitution Certificate on its behalf for the purposes
of clause 16.5 (Substitution Certificate) without any further consent of,
or consultation with, such party except, in the case of the Primary
Borrower, the consent required pursuant to clause 16.3 (Substitution).
94
17.8 ACCESSION DEEDS
The Obligors shall from time to time at the request of the Facility Agent
promptly do any act or thing or execute such documents as directed by the
Facility Agent in connection with the transfer of rights or benefits under
clause 16.3 (Substitution).
17.9 CONSTRUCTION OF CERTAIN REFERENCES
If any Bank novates all or any part of its rights, benefits and obligations
as provided in clause 16.3 (Substitution) all relevant references in this
Agreement to such Bank shall thereafter be construed as a reference to such
Bank and/or its Substitute to the extent of their respective interests.
17.10 LENDING OFFICES
Each Bank shall lend through its office at the address specified in
Schedule 1 or, as the case may be, in or pursuant to any relevant
Substitution Certificate or through any other office of such Bank selected
from time to time by such Bank through which such Bank wishes to lend for
the purposes of this Agreement (with the consent of the Primary Borrower,
if such changed lending office is outside the United Kingdom). If the
office through which a Bank is lending is changed pursuant to this clause
16.10, such Bank shall notify the Facility Agent promptly of such change.
No Bank shall exercise its rights under this clause in any manner which
might reasonably be expected to result in it not being a Qualifying Bank.
17.11 DISCLOSURE OF INFORMATION
The Obligors party to this Agreement agree that the Finance Parties may at
any time disclose such information relating to the Obligors, their
Affiliates and Associated Companies as shall come into their possession,
whether or not in relation to the Facilities:
(a) to any prospective assignee, Substitute or sub-participant;
(b) to their respective advisers, professional or otherwise;
(c) to any Affiliate of such Finance Party;
(d) to the other Finance Parties;
(e) if required to do so by an order of a court of competent jurisdiction;
(f) under any law or regulation or to any applicable regulatory authority
(including the Bank of England) in any relevant jurisdiction; and
(g) where such information shall have already entered the public domain
other than by breach of confidence on the part of the relevant Finance
Party,
and in the case of (a) above, subject to first requiring and receiving a
written confirmation from the recipient of the information addressed to,
inter alios, the Primary Borrower itself and its Affiliates that the
recipient will, and will cause its Affiliates to, treat in confidence any
confidential information so disclosed to it and not use it for any
unauthorised purpose and, upon receipt of such confirmation, such Finance
Party shall in no way be liable or responsible for such information not
being kept confidential by such proposed assignee, Substitute or other
person.
95
17.12 RESTRICTIONS ON NOVATIONS
Any novation by a Bank which is transferring part (but not all) of its
Commitment may only be made if (a) it is made in respect of a Commitment of
(pound)5,000,000 or any larger integral multiple of (pound)5,000,000 and
(b) as a consequence of such novation (or as a consequence of that and any
other novation between the same or related parties taking effect at or
about the same time) the Commitment of the Existing Bank would be not less
than (pound)5,000,000.
17.13 NO OBLIGATION
The Existing Bank shall not be obliged by any Finance Document to:
(a) accept a re-transfer from the Substitute of any of the rights and/or
obligations assigned or transferred under this clause 16 (Assignment,
Substitution and Lending offices); or
(b) indemnify the Substitute for any losses arising by reason of any
Obligor's failure to perform its obligations under any Finance
Documents or otherwise.
18. FACILITY AGENT
18.1 APPOINTMENT OF FACILITY AGENT
Each Finance Party (except the Facility Agent) appoints the Facility Agent
to act as its agent in connection with the Finance Documents to which the
Facility Agent is a party, and authorises the Facility Agent to exercise
such rights, remedies, powers and discretions as are specifically delegated
to it by the terms of this Agreement and the Finance Documents, together
with all reasonably incidental rights, powers and discretions. The Obligors
shall be entitled to assume that the Facility Agent represents the Finance
Parties (except the Facility Agent), the Reference Banks or the Majority
Banks (as the case may be), and that all consents and notices given by the
Facility Agent on their behalf are validly given.
18.2 SEPARATE TREATMENT OF SYNDICATION DIVISION
In acting as Facility Agent, the Facility Agent's syndication division (or
such other division as may undertake such task) shall be treated as a
separate entity from any other of its divisions or departments and, despite
the provisions of clauses 17 (Facility Agent) to 21 (Guarantee), if the
Facility Agent or any Related Person acts for or transacts business with
any member of a group comprising the Parent and its Affiliates or
Associated Companies (the "PARENT GROUP") or any other person which may be
a trade competitor of the Parent Group or Group or any member of either
such group or may otherwise have commercial interests similar to those of
any member of such groups in any capacity in relation to any other matter
(including as a Bank under this Agreement), any information acquired by the
Facility Agent or any Related Person in such other capacity may be treated
as confidential by the Facility Agent. The Obligors hereby expressly
acknowledge that the Finance Parties and Related Persons may be providing
debt financing, equity capital or other services (including financial
advisory services) to other persons with whom the Parent or the Group may
have conflicting interests in respect of the Facilities or otherwise.
96
18.3 ACTIONS OF FACILITY AGENT
Each action taken or decision made by the Facility Agent under or in
relation to any Finance Document with requisite authority under this
Agreement, including on the basis of the requisite instructions, shall be
binding on all the Finance Parties.
18.4 NOTIFICATION OF RETIREMENT OF FACILITY AGENT OR ISSUING BANK
Each of the Facility Agent and/or the Issuing Bank may resign its
appointment under this Agreement at any time without assigning any reason
therefor by giving not less than 30 days' prior written notice to that
effect to each of the other parties to this Agreement Provided that no such
resignation shall be effective until a successor for such Facility Agent or
Issuing Bank (as the case may be) is appointed in accordance with the
succeeding provisions of this clause.
18.5 SUCCESSOR FACILITY AGENT OR ISSUING BANK
If the Facility Agent or Issuing Bank gives notice of its resignation
pursuant to clause 17.4 (Notification of retirement of Facility Agent or
Issuing Bank), then any reputable and experienced bank or other financial
institution with an office in London may, with the consent of the Primary
Borrower (such consent not to be unreasonably withheld), be appointed as a
successor to such Facility Agent or Issuing Bank (as the case may be) by
the Majority Banks but, if no such successor is so appointed, the Facility
Agent or Issuing Bank (as the case may be) may appoint such a successor
itself.
18.6 PROVISIONS RELATING TO SUCCESSOR FACILITY AGENT OR ISSUING BANK
With effect from the date that a successor is appointed and accepts the
office of Facility Agent or, as the case may be, Issuing Bank and executes
such necessary documentation under this clause 17 (Facility Agent):
(a) as regards the other Finance Parties and the Obligors, such successor
shall become bound by all the obligations of the Facility Agent or, as
the case may be, the Issuing Bank and become entitled to all the
rights, privileges, powers, authorities and discretions of the
Facility Agent or, as the case may be, the Issuing Bank under the
Finance Documents;
(b) the agency of the retiring Facility Agent or, as the case may be, the
duties of the Issuing Bank shall terminate and the retiring Facility
Agent or, as the case may be, the retiring Issuing Bank shall be
discharged from any further liability or obligation under the Finance
Documents, but without prejudice to any liabilities which the retiring
Facility Agent or, as the case may be, the retiring Issuing Bank may
have incurred (including with respect to the retiring Issuing Bank any
then outstanding Issued Letter of Credit) before the termination of
its agency, trusteeship and/or duties;
(c) the costs, charges and expenses of the retiring Facility Agent or, as
the case may be, the retiring Issuing Bank shall be discharged if
recoverable under the provisions of this Agreement;
(d) the provisions of the Finance Documents shall continue in effect for
the benefit of any retiring Facility Agent or, as the case may be, the
retiring Issuing Bank in respect of any actions taken or omitted to be
97
taken by it or any event occurring before the termination of its
agency, trusteeship and/or duties (including with respect to the
retiring Issuing Bank any then outstanding Issued Letter of Credit);
and
(e) the retiring Facility Agent or Issuing Bank shall (at the expense of
the Primary Borrower) provide its successor with copies of such of its
records as its successor reasonably requires to carry out its
functions as such.
18.7 MERGER OF FACILITY AGENT OR ISSUING BANK
Any corporation into which the Facility Agent or the Issuing Bank may be
merged or converted or any corporation with which the Facility Agent or the
Issuing Bank may be consolidated or any corporation resulting from any
merger, conversion, amalgamation, consolidation or other reorganisation to
which the Facility Agent or the Issuing Bank shall be a party shall, to the
extent permitted by applicable law, be the successor Facility Agent, or, as
the case may be, Issuing Bank under this Agreement and the other Finance
Documents (as appropriate) without the execution or filing of any document
or any further act on the part of any of the parties to this Agreement or,
as the case may be, the other Finance Documents save that notice of merger,
conversion, amalgamation, consolidation or other reorganisation shall
forthwith be given to the Primary Borrower and the Banks.
18.8 ROLE OF ISSUING BANK
The Issuing Bank shall act on behalf of the Banks with respect to any
Letters of Credit Issued by it and the documents associated therewith until
such time and except for so long as the Facility Agent may agree at the
request of the Majority Banks to act for such Issuing Bank with respect
thereto.
19. POWERS
19.1 GENERAL POWERS
Each of the Facility Agent and the Arrangers may:
(a) assume that the Facility Office of each Bank is that identified with
its signature below (or, in the case of a Substitute, that identified
in the Substitution Certificate under which it became a party to this
Agreement) until it has received from such Bank a notice designating
some other office of such Bank as its Facility Office, and may act
upon any such notice until the same is superseded by a further such
notice;
(b) engage and pay for the advice or services of any lawyers, accountants
or other advisers whose advice or services may seem necessary,
expedient or desirable to it and may rely upon any advice so obtained;
(c) rely as to matters of fact which might reasonably be expected to be
within the knowledge of an Obligor upon a certificate or statement
signed by or on behalf of that Obligor;
98
(d) rely upon any communication or document believed by it to be genuine
and correct and to have been communicated or signed by the person by
whom it purports to be communicated or signed;
(e) refrain from exercising any right, power or discretion vested in it
under any Finance Document unless and until instructed by the Majority
Banks or, where required, all of the Banks as to whether or not such
right, power or discretion is to be exercised and, if it is to be
exercised, as to the manner in which it should be exercised, and it
shall not be liable for acting or refraining from acting in accordance
with or in the absence of such instructions;
(f) refrain from taking any step to protect or enforce the rights of any
Finance Party under any Finance Document and from beginning any legal
action or proceeding arising out of or in connection with any Finance
Document until it has been indemnified and/or secured as it may
require (whether by way of payment in advance or otherwise) against
all costs, claims, expenses (including legal fees) and liabilities
which it will or may expend or incur in complying with such
instructions;
(g) refrain from doing anything which would or might in its opinion be
contrary to any applicable law or any requirements (whether or not
having the force of law) of any governmental, judicial or regulatory
body or otherwise render it liable to any person, and do anything
which is in its opinion necessary to comply with any such applicable
law or requirement;
(h) do any act or thing in the exercise of any of its powers and duties
under the Finance Documents which may lawfully be done and which in
its absolute discretion it deems advisable for the protection and
benefit of the Finance Parties collectively;
(i) perform any of its duties, obligations and responsibilities under the
Finance Documents by or through its personnel or agents; and
(j) accept deposits from, lend money (secured or unsecured) to and
generally engage in any kind of banking or other business with, be the
owner or holder of any shares or other securities of, and provide
advisory or other services to the Parent and its Affiliates, and/or
the Group or any of the Finance Parties, without any liability to
account.
19.2 SPECIFIC POWERS OF FACILITY AGENT
The Facility Agent:
(a) may assume that:
(i) any representation made by the Obligors in or in connection with
the Finance Documents is true;
(ii) no Default has occurred;
99
(iii) no Obligor is in breach of or default under its obligations
under any Finance Document; and
(iv) any right, power, authority or discretion vested in any of the
Finance Documents upon the Majority Banks, all Banks, or any
other person or group of persons has not been exercised,
unless the Facility Agent has in its capacity as agent for the
relevant Finance Parties received actual notice to the contrary from
any other party to any Finance Document;
(b) shall be at liberty to place any Finance Document and any other
instruments, documents or deeds delivered to it pursuant thereto or in
connection therewith for the time being in its possession in any safe
deposit, safe or receptacle selected by the Facility Agent, as the
case may be, or with any bank, any company whose business includes
undertaking the safe custody of documents or any firm of lawyers of
good repute and may make any such arrangements as it thinks fit for
allowing the Primary Borrower access to, or its solicitors or auditors
possession of, such documents when necessary or convenient and, in the
absence of gross negligence or wilful default on its part, shall not
be responsible for any loss thereby incurred;
(c) may, whenever it thinks fit, delegate by power of attorney or
otherwise to any person or persons all or any of the rights, trusts,
powers, authorities and discretion vested in it by any Finance
Document and such delegation may be made upon such terms and subject
to such conditions and subject to such regulations as the Facility
Agent may think fit and shall not be bound to supervise the
proceedings or (in the absence of gross negligence or wilful default
on its part) be in any way responsible for any loss incurred by reason
of any misconduct or default on the part of any such delegate;
(d) notwithstanding anything else herein contained, may refrain from doing
anything which would or might in its opinion be contrary to any
relevant law of any jurisdiction or any relevant directive or
regulation of any agency of any state or which would or might
otherwise render it liable to any persons and may do anything which
is, in its opinion, necessary or desirable to comply with any such
law, directive or, regulations;
(e) may indemnify itself and/or every attorney, agent or other person
appointed by it under any Finance Document against all Liabilities (as
defined in clause 20.2 (Indemnity from Banks)) and/or in respect of
any other matter or thing done or omitted to be done in any way
relating to any Finance Document or by law and/or acting as Facility
Agent;
(f) shall have the power to institute, prosecute and defend any suits or
actions or other proceedings affecting the Facility Agent and to
compromise any matter or difference or submit any such matter to
arbitration and to compromise or compound any debts owing to the
Facility Agent or any other claims against it or any such terms as it
100
shall deem sufficient and to make petition upon such terms as it shall
deem desirable;
(g) save as otherwise expressly provided herein, shall have absolute
discretion as to the exercise or non exercise (and as to the manner
and time of any such exercise) of all rights, trust, powers,
authorities and discretions vested in it by any of the Finance
Documents but shall be entitled to refrain from exercising any right,
power or discretion vested in it as agent or trustee under any Finance
Document unless and until instructed by the Majority Banks or, where
required under this Agreement, all Banks as to whether or not such
right, power or discretion is to be exercised and, if it is to be
exercised, as to the manner in which it should be exercised; and
(h) shall have absolute discretion as to the exercise or non-exercise (and
as to the manner and time of any such exercise) of all rights, trust,
powers, authorities and discretions in relation to any matter, or in
any context, not expressly provided for by this Agreement to act or,
as the case may be, refrain from acting in accordance with the
instructions of the Majority Banks;
(i) shall (subject to clause 19 (Duties)) be entitled (in its own name or
in the names of nominees) to invest moneys from time to time which, in
the opinion of the Facility Agent, it would not be practicable to
distribute immediately by placing the same on deposit in the name or
under the control of itself as it may think fit without being under
any duty to diversify the same and it shall not be responsible for any
loss due to interest rate or exchange rate fluctuations;
(j) with respect to its own Commitments and Contributions (if any), shall
have the same rights and powers under this Agreement and the other
Finance Documents as any other Bank and may exercise the same as
though it were not performing the duties and functions delegated to it
under this Agreement and/or the other Finance Documents and the term
"Banks" shall, unless the context clearly otherwise indicates, include
the Facility Agent in its individual capacity as Bank.
20. DUTIES
20.1 SPECIFIC DUTIES OF THE FACILITY AGENT
The Facility Agent (for the benefit of the other Finance Parties only)
shall:
(a) promptly upon receipt inform each Bank of the contents of any notice
or document or other information received by it on or after the date
of this Agreement in its capacity as Facility Agent under this
Agreement from any Obligor;
(b) promptly notify each Bank of the occurrence of any Default or any
material breach by any Obligor in the due performance of its
obligations under this Agreement or any Finance Document of which the
Facility Agent has received written notice from any other party to any
Finance Document;
101
(c) save as otherwise provided herein, act in accordance with any
instructions given to it by the Majority Banks (which instructions
shall be binding on all of the Finance Parties);
(d) if so instructed by the Majority Banks (or, where so required under
this Agreement, all Banks), refrain from exercising any right, remedy
power or discretion vested in it under the Finance Documents;
(e) except as regards purely administrative acts, consult whenever
reasonably practicable with the Banks before doing or refraining from
doing any act or thing in the exercise of its powers as agent and/or
trustee;
(f) to the extent that it receives or recovers monies following the
service of a notice in accordance with clause 12.2 (Acceleration)
pursuant to or as a result of any breach of any Finance Document to be
applied in discharging any obligation (whether actual or contingent,
present or future) of any Obligor under any Finance Document, apply
such monies (without prejudice to the respective rights of the
Facility Agent pursuant to any Finance Document to credit any monies
received by it to any suspense account) as between the Finance Parties
in accordance with clause 8.9 (Partial payments) as if they were a
partial payment; and
(g) shall make each such application and/or distribution as soon as is
practicable after the relevant moneys are received by, or otherwise
become available to, it save that the Facility Agent may credit any
moneys received by it to a suspense account for so long and in such
manner as the Facility Agent may from time to time determine with a
view to preserving the rights of the Finance Parties or any of them to
prove for the whole of their respective claims against any Obligor or
any other person liable.
21. EXONERATION
21.1 ABSENCE OF OBLIGATION ON INITIAL FINANCE PARTIES
Despite anything to the contrary expressed or implied in any Finance
Document, each of the Facility Agent, the Issuing Bank and the Arrangers
shall:
(a) not be bound to enquire as to and will have no liability in respect
of:
(i) whether or not any representation or warranty made by any Obligor
under or in connection with any Finance Document is true complete
or adequate; the
(ii) the occurrence or otherwise of any Default;
(iii) the performance by any Obligor of its obligations under any
Finance Document; or
(iv) any breach or default by any Obligor of or under its obligations
under any Finance Document;
102
(b) not be bound to account to any Finance Party for any fee or other sum
or the profit element of any sum received by it for its own account;
(c) not be bound to disclose to any other person any information relating
to any member of the Group if such disclosure would or might in its
opinion constitute a breach of any law or regulation or duty of
confidentiality or be otherwise actionable at the suit of any person;
(d) not be under any fiduciary or other duty towards any Finance Party or
under any obligations other than those expressly provided for in any
Finance Documents;
(e) not be liable (in the absence of its own gross negligence or wilful
default):
(i) for any failure, omission, or defect in the due execution,
delivery, validity, legality, adequacy, performance,
enforceability, or admissibility in evidence of any Finance
Document or any communication, report or other document delivered
under any Finance Document; or
(ii) in respect of its exercise or failure to exercise any of its
powers and duties under any Finance Document; or
(f) not have any duties, obligations or liabilities other than those
expressly provided for in this Agreement and have no liability or
responsibility (in the absence of its own gross negligence or wilful
default) of any kind to:
(i) any member of the Group arising out of or in relation to any
failure or delay in the performance or breach by any Finance
Party (other than itself) of any of its obligations under or in
connection with any Finance Document; or
(ii) any Finance Party arising out of or in relation to:
(A) the financial condition of any member of the Group; or
(B) any failure or delay in the performance or breach by any
Obligor of any of its obligations under or in connection
with any Finance Document or the Facilities;
(g) not be bound to check or enquire on behalf of any other Finance Party
into or liable for the adequacy, accuracy, execution, genuineness,
enforceability, admissibility in evidence or completeness of any
communication delivered to it under any of the Finance Documents, any
legal or other opinions, reports, valuations, certificates, appraisals
or other documents delivered or made or required to be delivered or
made at any time in connection with any of the Finance Documents, any
security to be constituted thereby or any other report or other
document, statement or information circulated, delivered or made,
whether orally or otherwise and whether before, on or after the date
of this Agreement;
(h) be entitled to accept without enquiry, requisition or objection such
right and title as any Obligor may have to that part of the property
belonging to it (or any part thereof) which is the subject matter of
any Finance Document and not be bound or concerned to investigate or
make any enquiry into the right or title of such person to such
property (or any part thereof) or, without prejudice to the foregoing,
103
to require such person to remedy any defect in such person's right or
title as aforesaid;
(i) in determining the respective entitlements of the Finance Parties, be
entitled to rely on its own account;
(j) be entitled to invest monies which in the opinion of the Facility
Agent may not be paid out promptly following receipt m the name or
under the control of such Facility Agent in any of the investments for
the time being authorised by law for the investment by trustees of
trust monies or in any other investments whether similar to the
aforesaid or not which may be requested by the Majority Banks or by
placing the same on deposit in the name or under the control of the
Facility Agent as the Facility Agent may think fit and the Facility
Agent may at any time vary or transpose any such investments for or
into any others of a like nature and (in the absence of gross
negligence or wilful default on the part of such Facility Agent) shall
not be responsible for any loss thereby incurred whether due to
depreciation in value of such investments or any other reason
whatever;
(k) not be bound to take any steps or perform any obligation or exercise
any right or fulfil any request if to do so might in its sole opinion
breach or conflict with or contradict or be contrary to any rule,
regulation, law, regulatory requirement, court order or judgment in
any jurisdiction or expose the Facility Agent or the Arrangers to
liabilities in any jurisdiction or be otherwise actionable at the suit
of any person;
(l) not be liable for any failure:
(i) to obtain any licence, consent or other authority for the
execution, delivery, validity, legality, adequacy, performance,
enforceability or admissibility in evidence of any of the Finance
Documents;
(ii) to register or notify any of the foregoing in accordance with the
provisions of any of the documents of title of any of the
Obligors;
(m) have no liability (save as otherwise provided in clauses 17 (Facility
Agent) to 23 (Basis of decisions)) otherwise in connection with the
Facilities or their negotiations or for acting (or as the case may be
refraining from acting) in connection with the instructions of the
Majority Banks.
21.2 INDEMNITY FROM BANKS
Each Bank and the Issuing Bank shall, in its Proportion, on demand by the
Facility Agent or any Arranger from time to time, indemnify the Facility
Agent or, as the case may be, any Arranger, against any and all fees (to
the extent properly chargeable by the Facility Agent or, as the case may
be, such Arranger under any Finance Document but not promptly recovered
from the Obligors), costs, claims and expenses and liabilities including
any VAT thereon (other than those arising from the Facility Agent's or any
such Arranger's gross negligence or wilful misconduct):
(a) to which the Facility Agent becomes subject by reason of it acting as
agent; or
104
(b) which it is otherwise entitled to recover from any Obligor,
in each case under any of the Finance Documents or by law, including those
relating to all actions, proceedings, claims and demands in respect of any
matter or thing done or omitted in any way relating to the Finance
Documents any exercise or non exercise of any right, power or discretion,
and all amounts due to the Facility Agent by way of remuneration for acting
as agent under any of the Finance Documents (collectively the
"LIABILITIES"). Each Obligor shall counter-indemnify the Banks and the
Issuing Bank against all payments by them under this clause 20.2. If a Bank
or the Issuing Bank (referred to in this clause 20.2 as a "DEFAULTING
BANK") fails to pay its due contribution under this indemnity, then the
Facility Agent may (without prejudice to its other rights and remedies)
deduct the amount due from the defaulting Bank from any sums which are then
or afterwards in its possession which would otherwise be payable to the
defaulting Bank.
21.3 DISCLAIMER
Neither the Facility Agent, nor any Arranger accepts responsibility to any
other Finance Party for the accuracy and/or completeness of any information
supplied in connection with an Finance Document or for the legality,
validity, effectiveness, adequacy or enforceability of any Finance Document
and neither the Facility Agent, nor any Arranger, shall be under any
liability to any other Finance Party as a result of taking or omitting to
take any action in relation to any Finance Document (except in the case of
its gross negligence or wilful misconduct).
21.4 NO ACTIONS AGAINST INDIVIDUALS
(a) Each of the Banks agrees that it will not assert or seek to assert
against any director, officer or employee of the Facility Agent or any
Arranger any claim it may have against any of them in respect of the
matters referred to in clause 20.1 (Absence of obligation on initial
Finance Parties).
(b) Any third party referred to in this Clause 20.4 may enjoy the benefit
and enforce the terms of paragraph (a) above in accordance with the
provisions of the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇.
21.5 CREDIT APPRAISALS
It is agreed by each Bank, by virtue of its execution of this Agreement or
its accession to this Agreement, that it has itself been, and will continue
to be, solely responsible for making its own independent appraisal of and
investigations into the financial condition, creditworthiness, condition,
affairs, status and nature of each member of the Group, and, accordingly,
each Bank confirms to the Facility Agent, and each Arranger that it:
(a) does not enter into this Agreement nor accede to it on the basis of
and has not relied on and will not rely on any statement, opinion,
forecast or other representation (whether negligent or innocent) or
warranty or other provision (in any case whether oral, written,
express or implied) made by, or agreed to, the Facility Agent, any
Arranger or any Bank to induce it to enter into this Agreement or any
other Finance Document except as expressly set out therein and the
remedies available in respect of any such misrepresentation or untrue
105
statement made to such Bank shall be limited to a claim for breach of
contract under this Agreement; and
(b) has not relied on and will not rely on the Facility Agent, any
Arranger or any Bank:
(i) to check or enquire on its behalf into the adequacy, accuracy or
completeness of any information provided by or on behalf of any
member of the Group in connection with any Finance Document
and/or the transactions contemplated in the Finance Documents
(whether or not such information has been or is after the date of
this Agreement circulated to such Bank by the Facility Agent or
any Arranger or as the case may be any other Bank); or
(ii) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature
of any member of the Group.
Provided that clause 20.5(a) shall not apply to any statement or
representation made fraudulently, or to any provision of this Agreement
which was induced by fraud for which the remedies available shall be all
those available under English law.
21.6 EXONERATION OF RELATED PERSONS
All the provisions of this clause 20 (Exoneration) and of any other
provision of any Finance Document protecting (including indemnifying) or
limiting the liability of any Finance Party, or exonerating it from
liability or responsibility, which may enure to the benefit of such Finance
Party shall also be deemed to be given for the benefit of all Related
Persons to whom they are capable of relating or in respect of whom they are
capable of taking effect.
21.7 PRE-CONTRACTUAL EFFECT OF EXONERATION
For the avoidance of doubt, the guarantee, indemnity, exonerations and
other protections in favour of the Facility Agent, the Arrangers and the
Related Persons contained in the Finance Documents shall take effect in
respect of all events, action and omissions occurring before the execution
and completion of this Agreement as well as events, actions and omissions
occurring on or after its execution and completion and to the extent that
any liability should be adjudged to have arisen prior to the date of this
Agreement, such liability is hereby completely released.
22. GUARANTEE
Each Guarantor covenants and guarantees on, and in accordance with, the
terms of the Guarantee set out in Schedule 9 (Terms of Guarantee).
106
23. DETERMINATION OF MATTERS
23.1 MAJORITY BANK MATTERS: AMENDMENTS AND WAIVERS
Except as provided in clause 22.4 (All Bank matters: amendments and
waivers) and 22.5 (New Obligors), with the prior written consent of the
Majority Banks:
(a) the Facility Agent and the Primary Borrower may from time to time
enter into written amendments, supplements or modifications to the
Finance Documents (however fundamental) for the purpose of adding any
provisions to the Finance Documents or changing in any manner the
rights and/or obligations of any of the Obligors, the Facility Agent
and the Banks; and
(b) the Facility Agent may from time to time execute and deliver to any
Obligor a written instrument waiving prospectively or retrospectively,
on such terms and conditions as the Facility Agent may specify in such
instrument, any of the requirements of any of the Finance Documents,
or giving any consents or approvals thereunder.
23.2 DOCUMENTATION OF MAJORITY BANK CHANGES
Any action so authorised and effected by the Facility Agent under clause
22.1 (Majority Bank matters: amendments and waivers) shall be documented in
such manner as the Facility Agent shall (with the approval of the Majority
Banks) determine, shall be promptly notified to the Banks by the Facility
Agent and (without prejudice to the generality of clause 17.3 (Actions of
Facility Agent)) shall be binding on all the Banks.
23.3 MAJORITY BANK MATTERS: ENFORCEMENT
If the Facility Agent makes a declaration under clause 12.2 (Acceleration)
the Facility Agent shall, in the names of all the Banks, take such action
on behalf of the Banks and conduct such negotiations with any Obligor and
any other members of the Group and generally administer the Advances in
accordance with the wishes of the Majority Banks. All the Banks shall be
bound by the provisions of this clause 22.3 and no Bank shall be entitled
to take action (in relation to the tactics or means of enforcement)
independently against any Obligor or any other member of the Group without
the prior consent of the Majority Banks. In determining any matter under
this clause 22.3, no consent by the Majority Banks shall be effective to
approve either (a) the recovery of any particular Bank's or Banks' debt in
priority to any other Bank's debt or (b) the effective discontinuation of
recovery procedures or the final waiver of final of the claims of the Banks
under this Agreement. Such determinations shall be for the purpose of
effectively pursuing the Banks' rights and claims under this Agreement.
23.4 ALL BANK MATTERS: AMENDMENTS AND WAIVERS
Except with the prior written consent of all the Banks, the Facility Agent
shall not have authority on behalf of the Banks to agree with any Obligor
any amendment or modification to the Finance Documents or to vary or waive
breaches of or defaults under or otherwise excuse performance of any
provision of the Finance Documents by any Obligor, if the effect of such
would be to:
107
(a) postpone the due date or reduce the amount of any payment of
principal, interest, commitment commission or other amount payable or
which may become payable by any Obligor under the Finance Documents;
(b) except in accordance with clause 8. 1 (b)(iii) (No set-off or
counterclaim; distribution to the Banks) and 8.12 (Effect of Monetary
Union), change the currency in which any amount is payable by any
Obligor under the Finance Documents;
(c) have the effect of changing the amount of any Facility, any Bank's
Commitment or, except in accordance with clause 8.12 (Effect of
Monetary Union), the principal or face amount or currency of any
Advance;
(d) extend any period during which a Drawdown Notice may be delivered;
(e) change any provision of the Finance Documents which expressly requires
the approval or consent of all the Banks such that the relevant
approval or consent may be given otherwise than with the sanction of
all the Banks;
(f) change the definition of Majority Banks;
(g) change clause 15.2 (Pro-rata Payments);
(h) or change this clause 22 (Determination of matters) or clause 23
(Basis of Decisions).
23.5 NEW OBLIGORS
For the purposes of this clause 22 (Determination of matters) it is
expressly agreed and acknowledged that the execution of a guarantee and/or
deed of adherence by a new Subsidiary or other Obligor or proposed Obligor
or any deed or instrument pursuant to a further assurance provision in this
Agreement or the other Finance Documents shall not constitute an amendment
or modification to, or variation of, any of the Finance Documents.
23.6 VETO OF FACILITY AGENT
Regardless of any other provision in this Agreement, the Facility Agent
shall not be obliged to agree to any such waiver, amendment, supplement or
modification if it would:
(a) amend, modify or waive any provision of this clause 22 (Determination
of matters); or
(b) otherwise amend, modify or waive any of the Facility Agent's or the
Arrangers' rights under any of the Finance Documents or subject the
Facility Agent to any additional obligations under such documents.
23.7 ADMINISTRATIVE DETERMINATIONS
The Facility Agent may determine purely administrative matters without
reference to the Banks.
108
24. BASIS OF DECISIONS
24.1 MEANING OF MAJORITY BANKS
Where any of the Finance Documents provides for any matter to be determined
by reference to the opinion of, or to be subject to the consent or request
of, the Majority Banks or for any action to be taken on the instructions of
the Majority Banks, such opinion, consent, request or instructions shall
(as between the Banks) only be regarded as having been validly given or
issued by the Majority Banks if all the Banks shall have received prior
notice of the matter on which such opinion, consent, request or
instructions are required to be obtained and the relevant majority of Banks
shall have given or issued such opinion, consent, request or instructions,
but so that (as between the Obligors and the Finance Parties) the Obligors
shall each be entitled (and bound) to assume that such notice shall have
been duly received by each Bank and that the relevant majority shall have
been obtained to constitute Majority Banks when notified to this effect by
the Facility Agent whether or not this is the case.
24.2 NOTICE TO MAJORITY BANKS
If, within 10 Banking Days of the Facility Agent despatching to each Bank a
notice requesting instructions (or confirmation of instructions) from the
Banks or the agreement of the Banks to any amendment, modification, waiver,
variation or excuse of performance for the purposes of, or in relation to,
any of the Finance Documents, the Facility Agent has not received a reply
specifically giving or confirming or refusing to give or confirm the
relevant instructions or, as the case may be, approving or refusing to
approve the proposed amendment, modification, waiver, variation or excuse
of performance, then (subject to clause 23.4 (Late responses)) the Facility
Agent shall treat any Bank which has not so responded as having indicated a
desire to be bound by the wishes of 66 2/3 per cent. of those Banks
(measured in terms of the relevant Contributions or, if none, the relevant
Commitments of those Banks) which have so responded. Any Bank which
notifies the Facility Agent of a wish or intention to abstain on any
particular issue shall be treated as if it had not responded.
24.3 MEANING OF ALL BANKS
(a) Where this Agreement or any other Finance Document provides for any
matter to be determined by reference to the opinion of, or to be
subject to the consent of or request of, all of the Banks or the Banks
acting unanimously or for any action to be taken on the instruction of
all the Banks, such opinion, consent, request or instructions shall
(as between the Banks) only be regarded as having been validly given
or issued by all the Banks (or the Banks acting unanimously) if all
the Banks shall have received prior notice (the "FACILITY AGENT'S
NOTICE") of such matter containing a request for written instructions
from such Bank to be received by the Facility Agent within ten Banking
Days of the receipt (or the deemed receipt pursuant to clause 25.1 (b)
(Address for Notice)) of the Facility Agent's Notice. Before the
expiry of such deadline, the Facility Agent will use reasonable
endeavours to contact any Bank which has not responded to the Facility
Agent's Notice in order to obtain a response from such Bank.
(b) If, in respect of a Bank, the Facility Agent:
(i) shall not have received written instructions in respect of such
matter from such Bank; and
109
(ii) the Facility Agent shall have received written instructions in
respect of such matter from at least five other Banks,
in each case within such time period (and subject to clause 23.4 (Late
responses)), such Bank shall be deemed to have irrevocably renounced
and waived its right to make any such determination, approval, consent
or provide instructions to the Facility Agent in respect of such
matter; shall not have any rights, recourse or remedy against the
Facility Agent in respect of such matter; and shall be bound (as shall
each of the Obligors) by the determination, approval, consent or
instructions of the other Banks in respect of such matter. This clause
23.3(b) shall not apply in so far as it would create any obligation on
a Bank to provide an increased Commitment without such Bank having
expressed such increased Commitment in writing.
(c) Clauses 23.1 (Meaning of Majority Banks) and 23.2 (Notice to Majority
Banks) shall not apply in relation to those matters which are to be
decided by all the Banks.
24.4 LATE RESPONSES
In any case where a Bank fails to respond within the time limit set down
under clauses 23.2 (Notice to Majority Banks) or 23.3 (Meaning of All
Banks), such Bank's response, if it responds before any determination or
instruction is acted upon or communicated to any Obligor, will be taken
into account as if it had been received within the time limit Provided that
the Facility Agent has received actual notice of such response before any
such action or communication.
24.5 COSTS
If any Obligor requests, or if the Facility Agent requires in accordance
with any provision of this Agreement, any amendment, supplement,
modification or waiver under clause 22.1 (Majority Bank matters: amendments
and waivers) or clauses 22.4 (All Bank matters: amendments and waivers) or
22.5 (New Obligors), then the Obligors shall, on demand by the Facility
Agent, reimburse the Facility Agent for all costs and expenses (including
legal fees), together with any VAT on them, incurred by the Facility Agent
in the negotiation, preparation and execution of any written instrument
contemplated by clause 22.1 (Majority Bank matters: amendments and waivers)
or clauses 22.4 (All Bank matters: amendments and waivers) or 22.5 (New
Obligors).
24.6 NO PARTNERSHIP
This Agreement shall not and shall not be construed so as to constitute a
partnership between the parties or any of them.
24.7 CHANGE OF REFERENCE BANKS
If:
(a) the whole of the Contributions (if any) of any Reference Bank are
prepaid;
(b) the Commitments (if any) of any Reference Bank are reduced to zero
prior to the end of the Finance Period;
(c) a Reference Bank novates the whole of its rights and obligations (if
any) as a Bank under this Agreement; or
110
(d) a Reference Bank ceases to provide quotations to the Facility Agent
upon request for the purposes of determining LIBOR (where such
quotations are required having regard to the definition of "LIBOR" in
clause 1.2 (Definitions))
the Facility Agent may, acting on the instructions of the Majority Banks,
terminate the appointment of such Reference Bank and after consultation
with the Primary Borrower appoint another Bank to replace such Reference
Bank.
25. MATTERS CONCERNING THE OBLIGORS
25.1 ADDITIONAL OBLIGORS
The Primary Borrower may, at any time during the term of this Agreement
(unless a Default shall have occurred and be continuing), notify the
Facility Agent that a member of the Group is to be designated as an
Additional Guarantor. Such notice shall be in writing and signed by the
Primary Borrower and the relevant member of the Group, respectively, and
shall take effect in accordance with its terms on the condition that such
member of the Group shall have entered into
(a) an Accession Certificate with the Facility Agent which, subject to (b)
below, the Facility Agent shall execute on behalf of all the parties
to this Agreement (and all such parties so authorise the Facility
Agent without any further consent of, or consultation with, such
party); and
(b) such member of the Group, respectively, before entering into such an
Accession Certificate, shall have fulfilled all appropriate conditions
precedent, as notified to the Primary Borrower by the Facility Agent,
to the satisfaction of the Facility Agent including the delivery to
the Facility Agent of the documents and evidence referred to in
Schedule 3 (Conditions Precedent) in form and substance satisfactory
to the Facility Agent.
Upon satisfaction of such conditions such member of the Group shall become
a party to this Agreement in the capacity of an Additional Guarantor and
shall assume all the obligations and rights of such an Additional Guarantor
under this Agreement.
25.2 PRIMARY BORROWER AS OBLIGORS' AGENT
Each Obligor by its execution of this Agreement or an Accession
Certificate, as the case may be, irrevocably appoints and authorises the
Primary Borrower:
(a) as agent (the "OBLIGOR'S AGENT") for such Obligor to receive all
notices, requests, demands or other communications under this
Agreement which shall, without prejudice to any other effective mode
of serving the same, be properly served on the Obligor concerned if
served on the Primary Borrower in accordance with clause 25.1 (Address
for Notice); and
(b) to give all notices (including any Drawdown Notices) and instructions
and make such agreements expressed to be capable of being given or
made by such Obligor or Obligors in this Agreement (including an
agreement for the continuance of any guarantee or security)
notwithstanding that they may affect such Obligor without further
111
reference to, or the consent of, such Obligor and such Obligor shall,
as regards the Finance Parties, be bound thereby as though such
Obligor itself had given such notice or instructions or made such
agreement.
25.3 OBLIGATIONS UNCONDITIONAL
The obligations of each Obligor under this Agreement and the Finance
Documents are unconditional and irrevocable (subject to the express
provisions of this Agreement or any Finance Document) and shall not be in
any way affected or discharged by reason of any matter affecting the
Acquisition. Each Obligor acknowledges that any approval or authorisation
given under this Agreement or a Finance Document by a Finance Party in
relation to the Acquisition shall not constitute any representation or
warranty by such (or any) Finance Party as to the adequacy or effectiveness
of such Acquisition, the purchase consideration payable by Bidco, the
commercial advisability of any Obligor or Bidco entering into the
arrangements contemplated thereby or otherwise.
25.4 OBLIGATIONS SEVERAL
The obligations of each Obligor under this Agreement and the Finance
Documents are several (unless otherwise stated) and the failure of any
Obligor to perform such obligations shall not release any other Obligor of
its obligations under this Agreement.
26. NOTICES AND OTHER MATTERS
26.1 ADDRESS FOR NOTICE
Every notice, request, demand or other communication under this Agreement
shall:
(a) be in writing delivered personally or by first-class prepaid letter
(airmail if available) or telefax;
(b) be deemed to have been received, subject as otherwise provided in this
Agreement, in the case of a letter, when delivered personally or 2
days after it has been put into the post and, in the case of a
telefax, when a complete and legible copy is received by the addressee
(unless the time of despatch of any telefax is after close of business
in which case it shall be deemed to have been received at the opening
of business on the next Banking Day); and
(c) be sent:
(i) to the Primary Borrower (for itself and any other Obligors) at:
TXU Europe Limited
Wherstead Park
Wherstead
Ipswich
Suffolk
Telefax: + 44 1473 555002
Attention: Group Finance Director
with a copy for information only to:
112
Texas Utilities Company
Energy Plaza
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
Telefax: ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Treasurer
(ii) to the Facility Agent at:
Chase Manhattan International Ltd
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
Telefax: + 44 207 777 2360
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(iii) to the Issuing Bank at:
Chase Manhattan International Ltd
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
Telefax: + 44 207 777 2360
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(iv) to each Bank at its address or telefax number specified in
Schedule 1 (The Banks and their Commitments) or in, or pursuant
to, any relevant Substitution Certificate
(v) to the Arrangers:
Chase Manhattan plc
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telefax: + 44 207 777 3840
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Brothers International (Europe)
One ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telefax: + 44 207 256 4018
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation
c/o Merrill ▇▇▇▇▇ & Co
World Financial Center
North Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇
113
Telefax: ▇▇▇ ▇▇▇ ▇▇▇ 1649
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
or to such other address or telefax number as is notified by the
Primary Borrower, or a Finance Party, as the case may be, to the other
parties to this Agreement.
26.2 NOTICE TO FACILITY AGENT
Every notice, request, demand or other communication under this Agreement
to be given by an Obligor shall be given by the Primary Borrower and by the
Primary Borrower to any other party shall be given to the Facility Agent
for onward transmission as appropriate and to be given to an Obligor shall
(except as otherwise provided in this Agreement) be given by the Facility
Agent to the Primary Borrower.
26.3 NO IMPLIED WAIVER, REMEDIES CUMULATIVE
No failure or delay on the part of the Finance Parties or any of them to
exercise any power, right or remedy under this Agreement or any Finance
Document shall operate as a waiver thereof, nor shall any single or partial
exercise by the Finance Parties or any of them of any power, right or
remedy preclude any other or further exercise thereof or the exercise of
any other power, right or remedy. The remedies provided in this Agreement
and each of the Finance Documents are cumulative and are not exclusive of
any remedies provided by law.
26.4 ENGLISH TRANSLATIONS
All certificates, instruments and other documents to be delivered under or
supplied in connection with this Agreement shall be in the English language
or shall be accompanied by a certified English translation upon which the
Finance Parties shall be entitled to rely.
26.5 COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so executed
and delivered shall be an original, but all counterparts shall together
constitute one and the same instrument.
26.6 SEVERANCE
If any provision of this Agreement is held to be illegal, invalid or
unenforceable in whole or in part this Agreement shall continue to be valid
as to its other provisions and the remainder of the affected provision.
26.7 THIRD PARTY RIGHTS
(a) Except as otherwise expressly provided in a Finance Document, the terms of
a Finance Document may be enforced only by a party to it and the operation
of the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ is excluded.
(b) Notwithstanding any provision of any Finance Document, the parties to a
Finance Document do not require the consent of any third party to rescind
or vary any Finance Document at any time.
114
27. GOVERNING LAW AND JURSIDICTION
27.1 LAW
This Agreement shall be governed by English law.
27.2 SUBMISSION TO JURISDICTION
The parties to this Agreement agree for the benefit of the Finance Parties
that:
(a) if any party has any claim against any other arising out of or in
connection with this Agreement, such claim shall (subject to clause
26.2(c)) be referred to the High Court of Justice in England, to the
jurisdiction of which each of the parties irrevocably submits;
(b) the jurisdiction of the High Court of Justice in England over any such
claim against any Finance Party shall be a non-exclusive jurisdiction;
and
(c) nothing in this clause 26.2 shall limit the right of any Finance Party
to refer any such claim against any Obligor to any other court of
competent jurisdiction outside England, to the jurisdiction of which
any Obligor hereby irrevocably agrees to submit, nor shall the taking
of proceedings by any Finance Party before the courts in one or more
jurisdictions preclude the taking of proceedings in any other
jurisdiction whether concurrently or not.
IN WITNESS whereof the parties to this Agreement have cause this Agreement to be
duly executed on the date first above written.
115
SCHEDULE 1
THE BANKS AND THEIR COMMITMENTS
COMMITMENTS
BANK TERM FACILITY REVOLVING CREDIT
FACILITY
(POUND) (POUND)
Deutsche Bank AG London 33,581,420.61 14,551,948.93
Abbey National Treasury Services plc 28,210,186.47 12,224,414.14
Bayerische Landesbank Girozentrale, London 24,757,891.18 10,728,419.51
Branch
Bank of America, N.A. 24,757,891.18 10,728,419.51
Commerzbank Aktiengesellschaft, London Branch 24,757,891.18 10,728,419.51
Credit Suisse First Boston 24,757,891.18 10,728,419.51
Den Danske Bank Aktieselskab 24,757,891.18 10,728,419.51
First Union National Bank, London Branch 24,757,891.18 10,728,419.51
ING Bank N.V., London Branch 24,757,891.18 10,728,419.51
KBC Bank N.V., London Branch 24,757,891.18 10,728,419.51
National Australia Bank Limited (ACN 004044937) 24,757,891.18 10,728,419.51
The Royal Bank of Scotland plc 24,757,891.18 10,728,419.51
The Toronto-Dominion Bank 24,757,891.18 10,728,419.51
Westdeutsche Landesbank Girozentrale 24,757,891.18 10,728,419.51
CIBC World Markets plc 21,816,714.73 9,453,909.72
Credit Lyonnais 21,816,714.71 9,453,909.71
Bayerische Hypo- und Vereinsbank AG, London 18,875,538.24 8,179,399.90
Branch
The Bank of New York 18,005,738.24 7,802,486.57
The Dai-ichi Kangyo Bank, Limited 18,005,738.24 7,802,486.57
The Sanwa Bank, Limited 18,005,738.24 7,802,486.57
116
COMMITMENTS
BANK TERM FACILITY REVOLVING CREDIT
FACILITY
(POUND) (POUND)
Mellon Bank N.A. 18,005,738.24 7,802,486.57
Barclays Bank PLC 17,781,146.99 7,705,163.70
Citibank, N.A. 17,781,146.89 7,705,163.65
The Chase Manhattan Bank 15,934,362.12 6,904,890.26
Societe Generale, London Branch 15,934,361.76 6,904,890.10
National Westminster Bank Plc 13,504,304.12 5,851,865.12
UBS AG, London Branch 13,504,304.12 5,851,865.12
Christiania Bank og Kreditkasse ASA 11,764,705.88 5,098,039.21
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation 8,875,537.81 8,179,399.72
ABN AMRO Bank N.V. 8,005,738.24 7,802,486.57
Landesbank Schleswig-Holstein Girozentrale 8,172,525.30 5,708,094.30
ABC International Bank plc 9,002,869.41 3,901,243.41
The Bank of Nova Scotia 9,002,869.41 3,901,243.41
BNP Paribas 9,002,869.41 3,901,243.41
The Bank of Tokyo-Mitsubishi, Ltd. 9,002,869.41 3,901,243.41
Banca Monte dei Paschi di Siena SpA, London 9,002,869.41 3,901,243.41
Branch
HSBC Bank plc 8,823,529.40 3,823,529.41
Landesbank Rheinland-Pfalz Girozentrale 6,976,744.29 3,023,255.86
Tokai Bank Limited 6,976,744.19 3,023,255.81
▇▇▇▇▇ ▇▇▇ Commercial Bank, Ltd., London Branch 10,000,000.00 -
National Bank of Kuwait (International) PLC 10,000,000.00 -
Banca Nazionale del Lavoro S.p.A., London Branch 5,882,352.94 2,549,019.61
Calsse Centrale de Caisses d'Epargne et de 5,882,352.94 2,549,019.61
Prevoyance (CCCEP)
Arab Bank plc 4,501,434.12 1,950,621.45
117
COMMITMENTS
BANK TERM FACILITY REVOLVING CREDIT
FACILITY
(POUND) (POUND)
AIB International Finance 4,501,434.12 1,950,621.45
Banco Comercial Portugues SA, London Branch 5,000,000.00 -
Artesia Ireland 2,941,176.45 1,274,509.80
Banco de Sabadell S.A. 2,941,176.47 1,274,509.80
Bankhaus Lobbecke & Co. 2,941,176.47 1,274,509.80
United Mizrahi Bank Ltd 2,941,176.45 1,274,509.80
TOTAL (POUND)750,000,000.00(POUND)325,000,000.00
118
SCHEDULE 2
FORMS OF DRAWDOWN NOTICE
PART A
REVOLVING CREDIT FACILITY
To: [NAME AND ADDRESS OF FACILITY AGENT]
[DATE]
Attention: o
(POUND)1,075,000,000 FACILITIES AGREEMENT DATED 24 MARCH 1999 (AS AMENDED)
1. We refer to the above Agreement and hereby give you notice that we wish to
draw a Revolving Credit Advance:
(b) on o 20o;
(c) in the sum of(pound)o [or currencyo];
(d) with a Maturity Period in respect thereof of o months; and
(e) the proceeds of such fund to be credited to [NAME AND NUMBER OF ACCOUNT]
with [DETAILS OF BANK IN LONDON].
2. We confirm that each condition specified in clause 3 (The Conditions) is
satisfied on the date of this Drawdown Notice.
3. Words and expressions defined in the Agreement shall have the same meanings
where used herein.
For and on behalf of
TXU Europe Limited
............................
Director
119
PART B
LETTERS OF CREDIT
To: [Name and address of Facility Agent]
[DATE]
Attention: o
(POUND)1,075,000,000 FACILITIES AGREEMENT DATED 24 MARCH 1999 (AS AMENDED)
1. We refer to the above Agreement and hereby give you notice that [NAME OF
BORROWER] requests the Issue of a Letter of Credit as follows under the
Revolving Credit Facility:
(f) Drawdown Date: [o]
(g) Expiry Date: [o]
(h) Currency: [o]
(i) Beneficiary; [o]
(j) Amount: [o]
(k) Purpose: [o]
(l) Issue instructions: [o]
(m) Documents required to be presented: [o]
2. We confirm that:
(a) no event or circumstance has occurred and is continuing which
constitutes a Default that has not been waived; and
(b) the applicable representations and warranties contained in clause 9
(Representations and Warranties) of the Agreement are true and correct
at the date hereof as if made with respect to the facts and
circumstances existing at such date.
3. Words and expressions defined in the Agreement shall have the same meanings
where used herein.
For and on behalf of
TXU Europe Limited
............................
Director
120
SCHEDULE 3
DOCUMENTS AND EVIDENCE REQUIRED AS CONDITIONS PRECEDENT TO THE
ACCESSION OF GUARANTORS
1. A certified copy of the certificate of incorporation and the memorandum and
articles of association of the Guarantor.
2. A certified copy of the resolutions of the board of directors of the
Guarantor evidencing approval of this Agreement and the Finance Documents
(to which that company is a party) and authorising its appropriate duly
authorised officers to execute and deliver this Agreement and those Finance
Documents and to give all notices and take all other action required by the
relevant company under this Agreement and those Finance Documents.
3. Specimen signatures, authenticated by the company secretary or a director
of the Guarantor, of the persons authorised in the resolutions of the board
of directors referred to in paragraph 2 above.
4. The Accession Certificate duly executed by the Guarantor.
5. A certificate of a director of the Guarantor certifying that the
guaranteeing of the liabilities guaranteed by it would not cause any
borrowing limit binding on the Guarantor to be exceeded.
6. A legal opinion of the legal advisers to the Finance Parties in the
jurisdiction in which the Guarantor is incorporated.
121
SCHEDULE 4
CALCULATION OF MANDATORY COST RATE
The Mandatory Cost Rate is an addition to the interest rate on a sum to
compensate the Banks for the cost resulting from the imposition from time to
time under the Bank of England Act 1998 and/or by the Bank of England and/or the
Financial Services Authority (the "FSA") (or other United Kingdom governmental
authorities or agencies) of a requirement to place non-interest-bearing cash
ratio deposits or Special Deposits (whether interest bearing or not) with the
Bank of England and/or pay fees to the FSA calculated by reference to
liabilities used to fund the sum.
The Mandatory Cost Rate will be the rate determined by the Facility Agent to be
the arithmetic mean (rounded upward, if necessary, to four decimal places) of
the rates notified by each Reference Bank to the Facility Agent as the rate
resulting from the application of the formula:
for sterling sums: XL + S (L - D)+Fx0.01
---------------------
100-(X + S)
for other sums: Fx0.01
------
300
where on the day of application:
X is the percentage of Eligible Liabilities (in excess of any stated minimum)
by reference to which such Reference Bank is required under the Bank of
England Act 1998 to maintain cash ratio deposits with the Bank of England;
L is the BBA sterling LIBOR rate quoted at or about 11.00 a.m. (London time)
on Telerate (now at page 3750) on that day;
F is the rate payable by such Reference Bank to the FSA under the Fees
Regulations, expressed in pounds per(pound)1 million of such Reference
Bank's fee base;
S is the level of interest-bearing Special Deposits, expressed as a
percentage of Eligible Liabilities, which such Reference Bank is required
to maintain by the Bank of England (or other United Kingdom governmental
authorities or agencies); and
D is the percentage rate per annum payable by the Bank of England to such
Reference Bank on Special Deposits.
(X, L, S and D are to be expressed in the formula as numbers and not as
percentages. A negative result obtained from subtracting D from L shall be
counted as zero.)
If any Reference Bank fails to notify any such rate to the Facility Agent, the
Mandatory Cost Rate shall be determined on the basis of the rate(s) notified to
the Facility Agent by the remaining Reference Bank(s).
The Mandatory Cost Rate attributable to a sum for any period shall be calculated
at or about 11.00 a.m. (London time) on the first day of such period for the
duration of such period.
The determination of the Mandatory Cost Rate for any period shall, in the
absence of manifest error, be conclusive and binding on the parties hereto. If
the Facility Agent determines that a change in circumstances has rendered, or
will render, the formula inappropriate, the Facility Agent (after consultation
122
with the Banks and the Primary Borrower) shall notify the Primary Borrower of
the manner in which the Mandatory Cost Rate will subsequently be calculated.
For the purposes of this Schedule:
The terms "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings
given to them under the Bank of England Act 1998 or by the Bank of England
(as appropriate) on the date of the application of the formula.
"FEE BASE" has the meaning given to it in the Fees Regulations.
"FEES REGULATIONS" means, as appropriate, either:
(a) the Banking Supervision (Fees) Regulations 2000; and/or
(b) such regulations as may be in force from time to time relating to the
payment of fees for banking supervision.
123
SCHEDULE 5
FORM OF SUBSTITUTION CERTIFICATE
(REFERRED TO IN CLAUSE 16.5 (SUBSTITUTION CERTIFICATE))
NB 1. Banks are advised not to employ Substitution Certificates or
otherwise to assign, novate or transfer interests in the Agreement
without first ensuring that the transaction complies with all
applicable laws and regulations, including the Financial Services ▇▇▇
▇▇▇▇ and regulations made thereunder.
2. It is expected that Banks will enter into separate arrangements
dealing with the monies to be paid to the Existing Bank by the
Substitute in consideration of the novation (e.g. principal, accrued
interest, fees and any mismatched funding adjustment). Unless the
Effective Date is a rollover date, mismatches of parties' funding may
arise. This Certificate does not deal with these issues, nor does it
deal with any interim risk participation the Existing Bank may grant
to the substitute pending the Effective Date.
To: [NAME OF FACILITY AGENT] on its own behalf, as Facility Agent and on
behalf of each other party to the Agreement mentioned below.
Attention: o
[DATE]
SUBSTITUTION CERTIFICATE
This Substitution Certificate relates to a (pound)1,075,000,000 Facilities
Agreement (the "AGREEMENT") dated 24 March 1999 as amended and restated at o
2000 between TXU Europe Limited as the Primary Borrower (1) Chase Manhattan plc,
▇▇▇▇▇▇ Brothers International (Europe), ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation as
Arrangers (2), various banks and financial institutions as Banks (3) The Chase
Manhattan Bank as Issuing Bank (4) and Chase Manhattan International Limited as
Facility Agent (5) (as amended). Terms defined in the Agreement shall have the
same meaning in this Substitution Certificate.
1. [o Existing Bank o] (the "EXISTING BANK") (a) confirms the accuracy of the
summary of its participation in the Agreement set out in the schedule
below; and (b) requests [o Substitute Bank o] (the "SUBSTITUTE") to accept
by way of novation the portion of such participation specified in the
schedule to this Substitution Certificate by counter-signing and delivering
this Substitution Certificate to the Facility Agent at its address for the
service of notices specified in the Agreement.
2. The Substitute hereby requests the Facility Agent (on behalf of itself, the
other Finance Parties, the Obligors and all other parties to the Agreement)
to accept this Substitution Certificate as being delivered to the Facility
Agent pursuant to and for the purposes of clause 16.5 (Substitution
Certificate) of the Agreement so as to take effect in accordance with the
terms of such clause 16.5 (Substitution Certificate) on [o date of transfer
o] (the "EFFECTIVE DATE") or on such later date as may be determined in
accordance with the terms of the Agreement.
3. The Facility Agent (on behalf of itself, the other Finance Parties, the
Obligors and all other parties to the Agreement) confirms the novation
effected by this Substitution Certificate pursuant to and for the purposes
124
of clause 16.5 (Substitution Certificate) of the Agreement so as to take
effect in accordance with the terms of such clause 16.5 (Substitution
Certificate).
4. The Substitute confirms:
(a) that it has received a copy of the Agreement and each of the Finance
Documents and all other documentation and information required by it
in connection with the transactions contemplated by this Substitution
Certificate;
(b) that it has not relied upon any statement, opinion, forecast or other
representation or warranty made by the Existing Bank or any other
party to induce it to enter into this Substitution Certificate;
(c) that it has made and will continue to make, without reliance on the
Existing Bank or any other Finance Party, and based on such documents
as it considers appropriate, its own appraisal of the creditworthiness
of any Obligor and the Group and its own independent investigation of
the financial condition, prospects and affairs of any Obligor and the
Group in connection with the making and continuation of the Facilities
under the Agreement and the other Finance Documents;
(d) that neither the Existing Bank nor any other Finance Party shall at
any time be deemed to have had or have a duty or responsibility,
either historically, initially or on a continuing basis, to provide
the Substitute with any credit or other information with respect to
any Obligor or any other member of the Group whether coming into its
possession before the making of any Advance or at any time or times
thereafter, other than (in the case of the Facility Agent) as provided
in clause 19.1 (Specific duties of the Facility Agent) of the
Agreement;
(e) that it has made and will continue to make its own assessment of the
legality, validity, enforceability and sufficiency of the Agreement,
any other Finance Document and this Substitution Certificate and has
not relied and will not rely on the Existing Bank or any other Finance
Party or any statements made by any of them in that respect;
(f) that, accordingly, none of the Existing Bank nor any other Finance
Party makes any representations or warranties in respect of, or shall
have any liability or responsibility to the Substitute in respect of,
any of the foregoing matters or any other matter referred to in clause
20 (Exoneration) of the Agreement;
(g) that it is a Qualifying Bank; and
(h) that it has signed an appropriate confidentiality undertaking issued
by the Existing Bank.
5. The Substitute hereby undertakes to the Existing Bank, the Finance Parties,
the Obligors and each of the other parties to the Agreement that it will
perform in accordance with its terms all those obligations which by the
terms of the Agreement will be assumed by it after counter-signature of
this Substitution Certificate by the Facility Agent.
6. The Substitute irrevocably and unconditionally guarantees to and
indemnifies the Issuing Bank as required under clause 4.7 (Banks' Guarantee
and Indemnity).
7. Without limiting the above paragraphs, nothing in this Substitution
Certificate obliges the Existing Bank to:
(a) accept any re-transfer from the Substitute of any of the rights,
benefits and/or obligations hereby transferred; or
125
(b) support any losses incurred by the Substitute by reason of any
non-performance by the Obligors or any other party to the Agreement or
any of the Finance Documents or any document relating thereto of any
of its obligations under the same.
8. This Substitution Certificate and the rights and obligations of the
parties hereunder shall be governed by and construed in accordance with
English law.
NOTE: This Substitution Certificate is not a security, bond, note,
debenture, investment or similar instrument.
AS WITNESS the hands of the authorised signatories of the parties to this
Substitution Certificate on the date appearing below.
THE SCHEDULE
TERM FACILITY
Commitment ((pound)) Portion Transferred ((pound))
[o] [o]
Contribution ((pound)) Next Interest Payment Date Portion Transferred ((pound))
[o] [o] [o]
REVOLVING CREDIT FACILITY
Commitment ((pound)) Portion Transferred ((pound))
[o] [o]
Contribution ((pound)) Next Maturity Date(s) Portion Transferred ((pound))
[o] [o] [o]
Transferor's share of Portion of Letters of Credit
Outstanding Letters of Credit Transferred
[o] [o]
ADMINISTRATIVE DETAILS OF SUBSTITUTE
Lending Office:
Account for payments:
Telephone:
Telefax:
Attention:
126
[EXISTING BANK] [SUBSTITUTE]
By:.................. By:..................
Date: Date:
THE FACILITY AGENT
By:..................
Date:
on its own behalf and on behalf of
all other parties to the Agreement (other than the Existing Bank).
127
SCHEDULE 6
FORM OF ACCESSION CERTIFICATE
To: [NAME OF FACILITY AGENT] on its own behalf as Facility Agent and on behalf
of each other party to the Agreement.
Attention:
[Date]
ACCESSION CERTIFICATE
This Accession Certificate relates to a (pound)1,075,000,000 Facility Agreement
(the "AGREEMENT") dated 24 March 1999 as amended and restated at o 2000 between,
among others, the Primary Borrower (1), Chase Manhattan plc, ▇▇▇▇▇▇ Brothers
International (Europe), ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation as Arrangers (2),
various banks and financial institutions as Banks (3), The Chase Manhattan Bank
as Issuing Bank (4) and Chase Manhattan International Limited as Facility Agent
(5) (as amended). Terms defined in the Agreement shall have the same meaning in
this Accession Certificate.
1. [o] (the "ACCEDING GUARANTOR") hereby requests the Facility Agent (on
behalf of itself and all other parties to the Agreement) to accept this
Accession Certificate as being delivered to the Facility Agent pursuant to
and for the purposes of clause 24.1 (Additional Obligors) of the Agreement
so as to take effect in accordance with the respective terms thereof on the
date hereof.
2. The Acceding Guarantor is, pursuant to this Accession Certificate, acceding
to the Agreement as a Guarantor in respect of the Revolving Credit Facility
and accordingly shall, subject to the terms of this Accession Certificate
and the Agreement, become an Additional Guarantor under the Agreement. o
3. The Facility Agent (on behalf of itself and all other parties to the
Agreement) confirms the novation effected by this Accession Certificate
pursuant to and for the purposes of clause 24.1 (Additional Obligors) of
the Agreement so as to take effect in accordance with the terms thereof.
4. The Acceding Guarantor hereby undertakes to the Facility Agent (on behalf
of itself and the other Finance Parties) that it will perform in accordance
with their terms all those obligations which by the terms of the Agreement
will be assumed by it as a Guarantor after acceptance of this Accession
Certificate by the Facility Agent.
5. This Accession Certificate is intended to take effect as a Deed
notwithstanding that the Facility Agent may execute it under hand only.
6. This Accession Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with English
law.
IN WITNESS whereof this Accession Certificate has been entered into as a Deed on
the date above.
NOTICE DETAILS OF ACCEDING GUARANTOR
Address:
128
Telephone:
Telefax:
Attention:
THE ACCEDING GUARANTOR
[Execution particulars - Acceding Guarantor to execute as a Deed]
THE FACILITY AGENT
By:
o
on its own behalf and on behalf of
all the other parties to the Facility Agreement.
129
SCHEDULE 7
TERMS OF BORROWER'S INDEMNITY
1. The relevant Borrower unconditionally and irrevocably undertakes to the
Issuing Bank as follows:
(a) the relevant Borrower will at all times on demand indemnify the
Issuing Bank against all actions, suits, proceedings, claims, demands,
liabilities, damages, costs, expenses, losses and charges whatsoever
(except those arising from the gross negligence or wilful misconduct
of the Issuing Bank) in relation to or arising out of the Issue of any
Letter of Credit and the relevant Borrower will pay to the Facility
Agent for the account of the Issuing Bank in immediately available
funds and in the currency in which the relevant Letter of Credit is
denominated the amount of all payments made (whether directly or by
way of set-off, counterclaim or otherwise howsoever) and all losses,
costs or expenses suffered or incurred from time to time by the
Issuing Bank, arising under any liability which the Issuing Bank has
incurred under the Issue of any Letter of Credit and any of the
indemnities relating thereto;
(b) the liability of the relevant Borrower under this indemnity shall not
be affected by any time being given or by anything being done by the
Issuing Bank unless the same constitutes the gross negligence or
wilful misconduct of the Issuing Bank.
2. The relevant Borrower specifically releases and indemnifies the Issuing
Bank against the consequences of:
(a) the failure of the Issuing Bank or any other person to receive any
telex or telephone message in a form in which it was despatched; and
(b) any delay that may occur during the course of the transmission of any
such message save in respect of any failure arising from the gross
negligence or wilful misconduct of the Issuing Bank.
3.
(a) The obligations of any Borrower under this Agreement and any
L/C-Related Document to reimburse the Issuing Bank for a drawing under
a Letter of Credit and to repay any drawing under a Letter of Credit
which is converted into Advances, shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms
of this Agreement and each such other L/C-Related Document under all
circumstances, including the following (save in the case of gross
negligence or wilful default):
(i) any lack of validity or enforceability of this Agreement or any
L/C-Related Document;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of the relevant
Borrower in respect of any Letter of Credit or any other
amendment or waiver of or any consent to departure from all or
any of the L/C-Related Documents;
130
(iii) the existence of any claim, set-off, defence or other right that
the relevant Borrower may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any
person for whom any such beneficiary or any such transferee may
be acting), the Issuing Bank or any other person, whether in
connection with this Agreement, the transactions contemplated
hereby or by the L/C-Related Documents or any unrelated
transaction;
(iv) (save where the Issuing Bank should decline to make payment under
the terms of the Uniform Customs and Practice for Documentary
Credits (1993) (ICC Publication No. 500 (the "UCPDC")) any draft,
demand, certificate or other document presented under any Letter
of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue
or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to
make a drawing under any Letter of Credit;
(v) any payment by the Issuing Bank under any Letter of Credit
against presentation of a draft or certificate that does not
strictly comply with the terms of any Letter of Credit; or any
payment made by the Issuing Bank under any Letter of Credit to
any person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to
any beneficiary or transferee of any Letter of Credit, including
any arising in connection with any voluntary or involuntary
proceeding, process or arrangement under any law, regulation or
procedure relating to insolvency in any jurisdiction including in
relation to winding up, bankruptcy, administration,
administrative receivership, receivership and management,
receivership, judicial custodianship, judicial trusteeship or the
appointment of a judicial conservator or other official or the
reconstruction, rescheduling, readjustment, moratorium or
suspension of payments of any Indebtedness;
(vi) any exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from
any other guarantee, for all or any of the obligations of the
relevant Borrower in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defence available to, or a
discharge of, the relevant Borrower.
(b) The obligations of the relevant Borrower under the Finance Documents
shall not be affected in any way by reason of any time or other
indulgence which may be granted:
(i) to the Issuing Bank by any beneficiary of any Letter of Credit;
or
(ii) by the Issuing Bank to any person from whom it may seek
reimbursement in respect of sums paid out by it under any Letter
of Credit or any other obligation pursuant thereto or pursuant to
this Agreement, as the case may be.
4. The Issuing Bank may, at any time, without affecting any security created
by, pursuant to or in relation to this Agreement or the rights, powers and
remedies conferred upon it by this Agreement, any such security or by law:
131
(a) offer or agree to or enter into agreement for the extension or
variation of the Issue of any Letter of Credit (provided it does so in
accordance with written instructions of the relevant Borrower); or
(b) offer or agree to give any time or other indulgence for any sums paid
out by it under any Letter of Credit or any obligation pursuant to any
Letter of Credit.
5. Any rights conferred on the Issuing Bank by this Agreement and by each
document executed in relation to this Agreement shall be in addition to and
not in substitution for or derogation of any other rights which the Issuing
Bank may at any time have to seek from any person reimbursement of or
indemnification against payments made or liabilities incurred under any
Letter of Credit, any obligation pursuant thereto or to this Agreement.
6. Any satisfaction of obligations by the relevant Borrower or any other
person to the Issuing Bank or any discharge given by the Issuing Bank to
that Borrower or any other person in respect of obligations under this
Agreement or any related agreement between the Issuing Bank and that
Borrower or any other person shall be, and be deemed always to have been,
void if any act satisfying any of such obligations or on the faith of which
any such discharge was given or any such agreement was entered into is
subsequently avoided by law (otherwise than as a result of any act or
default by the Issuing Bank).
7. Any Letter of Credit shall be considered to be outstanding until the later
of:
(a) its Expiry Date, or a reasonable time after its Expiry Date to allow
for the presentation of documents through an advising bank; and
(b) if, in the opinion of the Issuing Bank, its liability under the Letter
of Credit does not expire on its stated Expiry Date or there is any
doubt as to its Expiry Date, the date of return of the document
evidencing the Issuing Bank's liability to the relevant beneficiary
under any Letter of Credit.
8. That Borrower confirms and agrees that:
(a) the Issuing Bank shall make any payment that appears to be duly
requested or demanded in writing by any beneficiary under any Letter
of Credit subject to its compliance (where applicable) with its
obligations as Issuing Bank under the UCPDC regardless of whether or
not the relevant Borrower shall be in any way in breach of any of its
obligations under or by virtue of the transaction in connection with
which the Letter of Credit was Issued and without making any further
reference to the relevant Borrower or any investigation as to the bona
fide nature, validity or genuineness of any such request or demand
(unless, under applicable law, the Issuing Bank is under no obligation
to make such payment), and
(b) the liability of such Borrower hereunder and the right and obligation
of the Issuing Bank to make such payment shall be in no way diminished
or prejudiced if it should appear that, as between the relevant
Borrower and that beneficiary, that beneficiary was not entitled for
whatever reason to demand payment under the Letter of Credit or that
such demand was not valid or genuine (subject as mentioned in
paragraph 8(a) above).
132
SCHEDULE 8
TERMS OF INTERBANK GUARANTEE AND INDEMNITY
1. Each Bank agrees to pay to the Facility Agent for the account of the
Issuing Bank on demand made through the Facility Agent under clause 4.7
(Banks' Guarantee and Indemnity) to such account as the Facility Agent may
have specified for the purpose in immediately available funds and in the
currency in which the relevant Letter of Credit is denominated, its
Proportion of:
(a) any and every sum of money which such Borrower shall from time to time
be liable to pay to the Issuing Bank in respect of that Letter of
Credit in full without set-off or counterclaim on the later of the
date that the Issuing Bank has itself to make payment under the Letter
of Credit (as notified by the Facility Agent to such Bank in the
demand) and two Banking Days after receipt by such Bank of such
demand; and
(b) full cash cover for the Outstanding Contingent Liabilities under that
Letter of Credit at any time after the Issuing Bank has become
entitled to demand an indemnity through the Facility Agent in respect
thereof from the relevant Borrower and which shall not have been paid
at the time such demand is made.
2. Where a Bank makes a payment pursuant to paragraph 1 after the date on
which the Issuing Bank makes the relevant payment under the Letter of
Credit in question, such Bank shall pay on demand to the Issuing Bank its
Proportion (as calculated in clause 4.7 (Banks' Guarantee and Indemnity) of
such amount as the Issuing Bank certifies as necessary to compensate it for
funding the amount demanded in the interim.
3. No assurance, security or payment avoided under any law relating to
bankruptcy, liquidation, insolvency, reconstruction or reorganisation or
any similar laws and no release, settlement, arrangement or discharge which
may have been given or made on the basis of any such assurance, security or
payment shall prejudice or affect the right of the Issuing Bank to recover
from each of the Banks to the full extent of their obligations under clause
4.7 (Banks' Guarantee and Indemnity).
4. The obligations of each Bank under clause 4.7 (Banks' Guarantee and
Indemnity) shall not be impaired, affected or revoked (except to the extent
arising from the Facility Agent's gross negligence or wilful default) by
any act, omission, matter, thing or circumstance whatsoever which but for
this provision might operate to release or exonerate such Bank from all or
any part of its obligations under clause 4.7 (Banks' Guarantee and
Indemnity) or reduce, impair or affect such obligations or cause all or any
part of such obligations to be irrecoverable from or unenforceable against
any Obligor or to discharge, reduce, affect or impair any of such
obligations, including without limitation:
(a) any time, waiver or indulgence granted to any person or the
forbearance of the Issuing Bank in enforcing the obligations of any
person under any Finance Document or in respect of any other
guarantee, security, obligation, right or remedy;
(b) the recovery of any judgment against any person or any action to
enforce the same;
(c) the taking of any other security from any person or the failure,
refusal or neglect to take, perfect or enforce any rights, remedies or
securities from or against any person or all or any part of the
security constituted by any of the Finance Documents;
(d) any alteration in the constitution of any Obligor or any defect in or
irregular exercise of the borrowing or other powers of any person or
any legal limitation, disability, incapacity or other circumstance
133
relating to any person or any legal limitation, disability, incapacity
or other circumstance relating to any person whether arising in
relation to any Finance Document or otherwise howsoever;
(e) subject to clause 22.4 (All Bank matters: amendments and waivers) and
22.5 (New Obligors), any amendment or supplement to or variation of
any L/C - Related Document or any other Finance Document;
(f) the insolvency, bankruptcy, liquidation, reconstruction or
reorganisation of, or analogous proceedings relating to any person or
any composition or arrangement made by any of them with the Issuing
Bank, any Bank or any other person or any transfer or extinction of
any liabilities of any Obligor by any law, order regulation, decree,
court order or similar instrument;
(g) any irregularity, unenforceability or invalidity of any obligations of
any person under any security or document (to the intent that such
Bank's obligations under clause 4.7 (Bank's Guarantee and Indemnity)
shall remain in full force as if there were no such irregularity,
unenforceability or invalidity);
(h) the occurrence of an Event of Default;
(i) the existence of any claim, set-off defence or other right which any
Obligor may have against any beneficiary of any Letter of Credit or
any other person; or
(j) any draft, certificate or any other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect.
5. The Issuing Bank shall be entitled to enforce the obligations of each Bank
under clause 4.7 (Banks' Guarantee and Indemnity) without making any demand
on or taking any proceedings against or filing any proof of claim in any
insolvency, winding up, dissolution or liquidation of any person or
exhausting any right or remedy against any person or taking any action to
enforce any part of the security constituted or evidenced by any of the
Finance Documents.
6. The obligations of each Bank under clause 4.7 (Banks' Guarantee and
Indemnity) shall be continuing obligations and shall extend to the ultimate
balance of the obligations referred to therein. If, for any reason, such
obligations cease to be continuing obligations, the Issuing Bank may open a
new account with or continue any existing account with any person and the
liability of each Bank in respect of amounts guaranteed by it pursuant to
clause 4.7 (Banks' Guarantee and Indemnity) at the date of such cessation
shall remain regardless of any payments in or out of any such account.
7. The Issuing Bank's rights under clause 4.7 (Banks' Guarantee and Indemnity)
shall be in addition to and shall be in no way prejudiced by any other
rights of or security held by the Issuing Bank in relation to the
obligations of any Obligor. The Issuing Bank's rights under clause 4.7
(Banks' Guarantee and Indemnity) are in addition to and are not exclusive
of those provided by law.
8. A certificate of the Issuing Bank as to any amount due to it from any Bank
pursuant to clause 4.7 (Banks' Guarantee and Indemnity) shall be conclusive
(in the absence of manifest error).
134
SCHEDULE 9
TERMS OF GUARANTEE
1. GUARANTEE
Each Guarantor irrevocably, unconditionally, jointly and severally:
(a) as principal obligor, and not merely as surety, guarantees to each
Finance Party prompt performance by each other Obligor (other than the
Primary Borrower) (the "GUARANTEED PARTIES") of all its obligations
under the Revolving Credit Facility and the payment when due of all
sums from time to time payable to each Finance Party by each other
Guaranteed Party under or in connection with the Revolving Credit
Facility;
(b) undertakes with each Finance Party that whenever a Borrower (other
than the Primary Borrower) does not pay any amount when due under or
in connection with obligations under the Revolving Credit Facility,
that Guarantor shall forthwith on demand by the Facility Agent pay
that amount as if that Guarantor instead of the relevant Borrower
(other than the Primary Borrower) were expressed to be the principal
obligor; and
(c) indemnifies each Finance Party on demand against any loss or liability
suffered by such Finance Party if any obligation guaranteed by that
Guarantor pursuant to this Guarantee is or becomes unenforceable,
invalid or illegal.
Provided that this guarantee shall not extend to:
(i) any obligation under or in connection with the Term Facility;
(ii) interest, commission, fees, charges, costs or expenses relating
to any of the matters excluded from the guarantee by sub-clause
(i) above.
2. CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend (subject to the
proviso in paragraph 1 above) to the ultimate balance of all sums payable
by the Guaranteed Parties or any of them under the Finance Documents under
or in connection with the Revolving Credit Facility, regardless of any
intermediate payment or discharge in whole or in part.
3. REINSTATEMENT
(a) Where any discharge (whether in respect of the obligations of any
Guaranteed Party or any security for those obligations or otherwise)
in whole or in part of any arrangement is made on the faith of any
payment, security or other disposition which is avoided or must be
restored on insolvency, liquidation or otherwise without limitation,
the liability of each Guarantor under this schedule 9 (Terms of
Guarantee) shall continue as if the discharge or arrangement had not
occurred.
(b) Each Finance Party may concede or compromise any claim that any
payment, security or other disposition is liable to avoidance or
restoration.
4. WAIVER OF DEFENCES
The obligations of each Guarantor under this schedule 9 (Terms of
Guarantee) will not be affected by any act, circumstance, omission, matter
or thing which, but for this provision, would reduce, release or prejudice
any of its obligations under this schedule 9 (Terms of Guarantee) or
135
prejudice or diminish those obligations in whole or in part, including
without limitation (whether or not known to it or any other party):
(a) any time, indulgence or waiver granted to, or composition with, any
Guaranteed Party or other person;
(b) the taking, variation, compromise, exchange, renewal or release of, or
refusal or neglect to perfect, take up or enforce, any rights or
remedies against, or security over assets of, any Guaranteed Party or
other person or any non-presentation or non-observance of the full
value of any security;
(c) any legal limitation, disability, incapacity or lack of powers,
authority or legal personality of or dissolution or change in the
members or status of any Guaranteed Party or any other person;
(d) any variation (however fundamental and whether or not involving an
increase in liability of any Guaranteed Party) or replacement of a
Finance Document or any other document or security so that references
to that Finance Document in this schedule 9 (Terms of Guarantee) shall
include each variation or replacement;
(e) any unenforceability, illegality, invalidity or frustration of any
obligation of any person under any Finance Document or any other
document or security or any failure of any Guaranteed Party or
proposed Guaranteed Party to become bound by the terms of any Finance
Document;
(f) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of any Guaranteed Party
under a Finance Document resulting from any insolvency, liquidation or
dissolution proceedings or from any law, regulation or order;
(g) the release of any other Obligor or any other person under the terms
of any composition or arrangement with any creditor of any member of
the Group,
so that each such obligation shall, for the purposes of the Guarantor's
obligations under this schedule 9 (Terms of Guarantee) remain in full force
and be construed as if there were no such act, circumstance, variation,
omission, matter or thing.
5. IMMEDIATE RECOURSE
Each Guarantor 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 or file any proof or
claim in any insolvency proceedings of any person before claiming from the
Guarantor under this schedule 9 (Terms of Guarantee).
6. APPROPRIATIONS
Until all amounts which may be or become payable by the Guaranteed Parties
under or in connection with the Revolving Credit Facility have been
irrevocably paid in full, each Finance Party (or any trustee or agent on
its behalf) may:
(a) refrain from applying or enforcing any other monies, security or
rights held or received by that Finance Party (or any trustee or agent
on its behalf) in respect of those amounts, or apply and enforce the
same in such manner and order as it sees fit (whether against those
amounts or otherwise) and no Guarantor shall be entitled to the
benefit of the same; and
136
(b) hold in an interest bearing suspense account any monies received from
any Guarantor or on account of any Guarantor's liability under this
schedule 9 (Terms of Guarantee).
7. NON-COMPETITION
Until all amounts which may be or become payable by the Guaranteed Parties
under or in connection with the Revolving Credit Facility have been
irrevocably paid in full, no Guarantor shall, after a claim has been made
or by virtue of any payment or performance by it under this schedule 9
(Terms of Guarantee):
(a) be subrogated to any rights, security or monies held, received or
receivable by any Finance Party (or any trustee or agent on its
behalf) or be entitled to any right of contribution or indemnity in
respect of any payment made or monies received on account of that
Guarantor's liability under this schedule 9 (Terms of Guarantee) and,
to the extent that any Guarantor is so subrogated or entitled by law,
that Guarantor (to the fullest extent permitted by law) waives and
agrees not to exercise or claim those rights, security or money or
that right of contribution or indemnity;
(b) claim, rank, prove or vote as a creditor of any Guaranteed Party or
its estate in competition with any Finance Party (or any trustee or
agent on its behalf) unless otherwise required by the Facility Agent
or by law (in which case any proceeds of any claim in respect of any
rights, security or monies of any Finance Party to which such
Guarantor was subrogated will be paid by such Guarantor to the
Facility Agent to be applied in accordance with the provisions of the
Finance Documents); or
(c) receive, claim or have the benefit of any payment, distribution or
security from or on account of any Guaranteed Party, or exercise any
right of set-off as against any Guaranteed Party (and without
prejudice to the foregoing, each Guarantor shall forthwith pay to the
Facility Agent for the benefit of the Finance Parties an amount equal
to any amount so set-off by it).
Each Guarantor shall hold in trust for and forthwith pay or transfer to the
Facility Agent for the Finance Parties any payment or distribution or
benefit of security received by it contrary to this schedule 9 (Terms of
Guarantee).
8. ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by any
other security now or hereafter held by any Finance Party.
9. FINANCIAL ASSISTANCE
Notwithstanding any other provision of this guarantee, this guarantee shall
not operate to guarantee, or create any indemnity in respect of, any money
or liability if and insofar as such money was borrowed or such liability
was incurred directly or indirectly for the purpose of the acquisition by
any person of shares in the Guarantor or its holding company or the
reduction or discharge of any existing liability incurred for the purpose
of such acquisition and if and for so long as it would not be lawful under
Chapter VI, Part V, of the Companies ▇▇▇ ▇▇▇▇ for such money or liability
to be guaranteed by this guarantee.
137
SIGNATORIES TO THE AMENDMENT AND RESTATEMENT AGREEMENT
PRIMARY BORROWER
TXU Europe Limited
By: ▇.▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ 2
TXU Finance (No.2) Limited
By: ▇.▇. ▇▇▇▇▇▇▇▇▇
BIDCO
TXU Acquisitions Limited
By: ▇.▇. ▇▇▇▇▇▇▇▇▇
JOINT LEAD ARRANGERS
Chase Manhattan plc
▇▇▇▇▇▇ Brothers International Europe
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation
BANKS
Deutsche Bank AG London
Abbey National Treasury Services plc
Bayerische Landesbank Girozentrale, London
Branch
138
Bank of America, N.A.
Commerzbank Aktiengesellschaft, London Branch
Credit Suisse First Boston
Den Danske Bank Aktieselskab
First Union National Bank, London Branch
ING Bank N.V., London Branch
KBC Bank N.V., London Branch
National Australia Bank Limited (ACN 004044937)
The Royal Bank of Scotland plc
The Toronto-Dominion Bank
Westdeutsche Landesbank Girozentrale
CIBC World Markets plc
Credit Lyonnais
Bayerische Hypo- und Vereinsbank AG, London
Branch
The Bank of New York
The Dai-ichi Kangyo Bank, Limited
The Sanwa Bank, Limited
Mellon Bank N.A.
Barclays Bank PLC
Citibank, N.A.
The Chase Manhattan Bank
Societe Generale, London Branch
National Westminster Bank Plc
UBS AG, London Branch
Christiania Bank og Kreditkasse ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation
ABN AMRO Bank N.V.
139
Landesbank Schleswig-Holstein Girozentrale
ABC International Bank plc
The Bank of Nova Scotia
BNP Paribas
The Bank of Tokyo-Mitsubishi, Ltd.
Banca Monte dei Paschi di Siena SpA, London
Branch
HSBC Bank plc
Landesbank Rheinland-Pfalz Girozentrale
Tokai Bank Limited
▇▇▇▇▇ ▇▇▇ Commercial Bank, Ltd., London Branch
National Bank of Kuwait (International) PLC
Banca Nazionale del Lavoro S.p.A., London Branch
Calsse Centrale de Caisses d'Epargne et de
Prevoyance (CCCEP)
Arab Bank plc
AIB International Finance
Banco Comercial Portugues SA, London Branch
Artesia Ireland
Banco de Sabadell S.A.
Bankhaus Lobbecke & Co.
United Mizrahi Bank Ltd
THE ISSUING BANK
The Chase Manhattan Bank
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
140
THE FACILITY AGENT
Chase Manhattan International Limited
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
For itself and on behalf of each of the Joint Lead Arrangers and Banks and the
Issuing Bank listed above, as authorised by the Majority Banks in accordance
with the provisions of clause 22.1 (Majority Bank matters: amendments and
waivers) of the Principal Agreement.
141