Exhibit 99(v)
CONFORMED COPY
Dated 19th November, 2001
---------------------------------------
(as amended by a Supplemental Agreement
dated 29th November, 2001)
FACILITY AGREEMENT
(pound)900,000,000 credit facility for
TXU EUROPE LIMITED
Arranged by
BARCLAYS CAPITAL
▇.▇. ▇▇▇▇▇▇ PLC
SALOMON BROTHERS INTERNATIONAL LIMITED
and
THE ROYAL BANK OF SCOTLAND
Norton ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇
for TXU Europe Limited for the Finance Parties
Contents
Clause Page
1. Interpretation and general...................................... 1
2. The Conditions.................................................. 24
3. The Facility and the guarantee.................................. 25
4. Drawing under the Facility...................................... 25
5. Interest and terms.............................................. 33
6. Repayment, prepayment and cancellation.......................... 35
7. Fees and expenses............................................... 38
8. Representations and warranties.................................. 40
9. Undertakings.................................................... 42
10. Negative covenants.............................................. 45
11. Events of Default............................................... 46
12. Payments and calculations....................................... 51
13. Indemnities..................................................... 54
14. Unlawfulness, increased costs................................... 55
15. Taxes........................................................... 57
16. Mitigation...................................................... 59
17. The Administrative Parties...................................... 60
18. Pro rata payments............................................... 64
19. Amendments and waivers.......................................... 65
20. Rights of Finance Parties....................................... 66
21. Set-off......................................................... 67
22. Assignment and accession........................................ 67
23. Substitution and lending offices................................ 69
24. Change of Reference Banks....................................... 71
25. Notices and other matters....................................... 72
26. Miscellaneous................................................... 73
27. Governing Law................................................... 74
28. Enforcement..................................................... 74
29. Waiver of trial by jury......................................... 74
Schedules
1. The Lenders and their Commitments............................... 75
2. Calculation of Additional Cost.................................. 76
3. Form of Substitution Certificate................................ 79
4. Conditions Precedent............................................ 83
5. Terms of Guarantee.............................................. 84
6. Forms of Utilisation Notice..................................... 87
7. Financial Covenants............................................. 89
8. Form of Accession Certificate................................... 93
9. Eastern Electricity Limited - Further Provisions................ 96
10. Forms of Letters of Credit...................................... 100
Signatories.............................................................. 106
THIS AGREEMENT is dated 19th November, 2001 and made BETWEEN:
(1) TXU EUROPE LIMITED as the original borrower (in this capacity the
"Original Borrower");
(2) TXU EUROPE LIMITED as the guarantor (in this capacity the "Guarantor");
(3) BARCLAYS CAPITAL, ▇.▇. ▇▇▇▇▇▇ PLC, SALOMON BROTHERS INTERNATIONAL
LIMITED and THE ROYAL BANK OF SCOTLAND as the Mandated Lead Arrangers,
(in this capacity, each an "Arranger" and together the "Arrangers");
(4) THE FINANCIAL INSTITUTIONS whose names are set out in schedule 1 as
lenders (each an "Original Lender");
(5) THE ROYAL BANK OF SCOTLAND plc as the LC Issuing Bank (the "LC Issuing
Bank"); and
(6) CHASE MANHATTAN INTERNATIONAL LIMITED as the facility agent (in this
capacity the "Facility Agent").
IT IS AGREED as follows:
PART 1 - INTRODUCTION
1. INTERPRETATION AND GENERAL
1.1 Definitions
In this Agreement, unless the context otherwise requires:
Acceding Borrower means a Subsidiary of the Original Borrower which
becomes a Borrower after the date of this Agreement in accordance with
clause 22.2;
Accession Certificate means an accession certificate (by way of deed)
in the form or substantially in the form of schedule 8 and entered into
or to be entered into by an Acceding Borrower and the Facility Agent;
Acquisition Agreement means the agreement, dated on or around the date
of this Agreement, between Eastern Electricity Holdings Limited, TXU
Europe Group plc and London Electricity Group PLC;
Act means the Companies Act, 1985;
Additional Cost means, in relation to any period, a percentage rate per
annum calculated for such period in accordance with schedule 2;
Administrative Party means an Arranger, the LC Issuing Bank or the
Facility Agent;
2
Advance means each borrowing made or to be made by way of a cash
advance under this Agreement or (as the context requires) the principal
amount of that borrowing outstanding at any relevant time;
Affiliates means, in respect of a person, its Subsidiaries, any company
of which it is a Subsidiary, and all the other Subsidiaries of any such
company;
Applicable Margin means at any time in relation to the calculation of
interest in respect of any Term, or in respect of any other unpaid sums
owing to the Finance Parties pursuant to the Facility, the rate
determined as of the first day of such period in accordance with the
following table:
Rating of the Original Applicable Margin
Borrower (%)
A3 / A- or higher 0.50
Baa1 / BBB+ 0.625
Baa2 / BBB 0.75
Baa3 / BBB- or lower 0.95
For the avoidance of doubt, in the event of any discrepancy between the
ratings published by Moody's and Standard & Poors, the lower of the
ratings shall be used to determine the Applicable Margin;
Auditor means Deloitte and Touche, or such other auditors as are
reasonably acceptable to the Facility Agent;
Available Facility Amount means, at any time, the aggregate Available
Commitments of the Lenders at that time;
Available Commitment means, in relation to a Lender at any time, its
Commitment at such time less its aggregate Contributions at such time;
Banking Day means a day (other than a Saturday or a Sunday) on which
banks are open for general business in London and:
(a) if on that day a payment in or a purchase of a currency (other
than euro) is to be made, the principal financial centre of
the country of that currency; or
(b) if on that day a payment in or a purchase of euro is to be
made, which is also a Target Day;
Borrower means the Original Borrower or an Acceding Borrower.
Borrowed Money means any present or future Indebtedness for or in
respect of:
(a) money borrowed or raised;
3
(b) 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;
(c) liabilities under or in respect of any acceptance or
acceptance credit or documentary credit facilities or standby
credit facilities, other than:
(i) any such credit facilities 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:
(A) 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
not been challenged in good faith or
remedied, 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
(B) 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,
such a provision should be made in
accordance with RAP;
(d) 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 paragraph (f) below;
(e) for the purposes of the Financial Covenants only, any
outstanding preference shares of any member of the Group
expressed (whether by law, agreement or otherwise) to be
redeemable, at the option of the holder, on or before the
final Maturity Date;
(f) 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;
(ii) is not a cost in respect of the expansion,
development or renewal of all or part of the
"licencee's distribution system" (as defined in the
PED Licence);
(iii) exceeds(pound)25,000,000 in respect of any
transaction or series of related transactions),
4
whether or not any instalments for payment are
evidenced by a bond, note, debenture or other debt
security issued by the obligor;
(g) any Finance Lease;
(h) 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;
(i) for the purpose of clause 11.1.5 only, any derivative
transaction (calculated at the ▇▇▇▇-to-market value for
close-out);
(j) 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;
(k) any amount raised under any other transaction having the
commercial effect of a borrowing and entered into primarily as
a means of raising finance;
(l) such part (if any) of the amounts made available to any person
as a result of any securitisation as, in accordance with RAP,
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;
(iii) Indebtedness of a member of the Group to a Non-Group Affiliate
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 excluded save only to the extent
that they have been capitalised and remain payable;
(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 preference
share falling thereunder, together with any applicable
discount required under RAP to be recognised in the Group's
most recently published financial statements, shall be
included;
5
(vi) in respect of paragraph (g), only the capitalised value
established in accordance with FAS 13 (as supplemented, varied
or replaced from time to time) of a Finance Lease as shown in
the relevant company'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;
(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$300,000,000 shall be excluded from
Borrowed Money; and
(x) no amount shall be included or excluded more than once;
Commitment means:
(a) for an Original Lender, the amount in Sterling set opposite
its name under the heading "Commitment" in schedule 1 plus the
amount of any other Commitment it acquires; and
(b) for any Substitute, the amount of any Commitment it acquires,
in each case to the extent not transferred, cancelled or reduced under
or in accordance with this Agreement;
Commitment Period means the period beginning on the date of this
Agreement and ending on the date falling one month before the Final
Repayment Date;
Contribution means, in relation to a Lender and a Credit at any
relevant time, its Pro Rata Share of a Credit at that time;
Credit means an Advance or a Letter of Credit.
EEL means Eastern Electricity Limited (registered number 2366906);
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 the law)
relating to the transaction, distribution or supply of electricity in
force in the United Kingdom;
Energy Business means the Group's business of purchasing, exchanging,
converting, generating, trading, selling, forecasting and delivering
fuel, power, energy and electricity and derivatives thereof and
therefrom, and all business usual for energy companies and utilities
companies including, without limitation, electricity generation,
electricity and gas transmission, distribution and supply, energy
trading, and all business activities related to the gas,
telecommunications, water and electricity industries;
6
Environmental Claim means any claim, notice of prosecution, demand,
action, official warning, abatement or other order (conditional or
otherwise) relating to Environmental Matters or any notification or
order requiring compliance with the terms of any Environmental Licence
or Environmental Law;
Environmentally Hazardous Material means any substance whatsoever
(whether in a solid or liquid form or in the form of a gas or vapour
and whether alone or in combination with any other substance) or waste
(as defined in the Environmental Protection Act 1990) which is capable
of causing harm to man or any other living organism supported by the
environment, or damaging the environmental or public health or welfare;
Environmental Law includes all or any law, statute, rule, regulation,
treaty, by-law, code of practice, order, notice, demand, decision of
the courts or of any Government Entity or any other regulatory body in
any relevant jurisdiction relating to Environmental Matters which is
binding on a member of the Group;
Environmental Licence includes any permit, licence, authorisation,
consent or other approval required at any time by any Environmental
Law;
Environmental Matters includes:
(a) the generation, deposit, disposal, keeping, treatment,
transportation, transmission, handling, importation,
exportation, processing, collection, sorting, presence or
manufacture of any waste (as defined in the Environmental
Protection Act 1990) of any Environmentally Hazardous
Material;
(b) nuisance, noise, defective premises, health and safety at work
or elsewhere; and
(c) the pollution, conservation or protection of the environment
(both natural and built) or of man or any living organisms
supported by the environment;
Equity-Credit Preferred Securities means securities, however
denominated:
(a) issued by the Original Borrower or any of the Original
Borrower's Subsidiaries;
(b) that are not subject to mandatory redemption;
(c) that are perpetual or mature no less than 30 years from their
date of issuance;
(d) the indebtedness incurred in connection with which is
subordinate in right of payment to the unsecured and
unsubordinated indebtedness of the issuer of such
indebtedness; and
(e) 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, references to Equity Credit-Preferred Securities
include such loans, debentures or other securities;
7
EURIBOR means in relation to any amount denominated in euros and any
period, the offered rate for deposits for such amount and for such
period which is:
(a) the rate of interest for such period which appears on the
"Euribor01" page of the Reuters screen (or such other page on
the Reuters screen as may customarily be used from time to
time to display EURIBOR rates) at or about 11 a.m. (Brussels
Time) on the Quotation Date for such period; or
(b) if the relevant page is not displayed on the Reuters screen,
or the Reuters screen is not operating at the relevant time,
or if no such offered rate appears on the Reuters screen for
that period, the rate of interest for such period which
appears on page 248 of the Dow ▇▇▇▇▇ Telerate screen (or such
other page on the Dow ▇▇▇▇▇ Telerate screen as may customarily
be used from time to time to display EURIBOR rates) at or
about 11 00 a.m. (Brussels Time) on the Quotation Date for
such period; or
(c) if the relevant rate of EURIBOR cannot be determined in
accordance with paragraphs (a) and (b) above, the rate
determined by the Facility Agent to be the arithmetic mean
(rounded upwards if necessary to the nearest one sixteenth of
one per cent.) of the rates respectively quoted to the
Facility Agent by the Reference Banks (provided always that at
least two Reference Banks shall have given such quotation) at
the request of the Facility Agent as such Reference Banks'
offered rate for deposits in an amount approximately equal to
the amount in relation to which EURIBOR is to be determined
for a period equivalent to such period to leading banks in the
euro Zone Interbank Market at or about 11 a.m. (London time)
on the Quotation Date for such period;
euro means the single currency of Participating Member States;
Event of Default means any of the events and circumstances described in
clause 11;
Facility means the facility referred to in Clause 3.1;
Fee Letter means each letter, dated on or about the date of this
Agreement, between the Original Borrower and an Administrative Party in
accordance with which the fees set out at clause 7.1 shall be paid;
Final Repayment Date means the date falling on the fifth anniversary of
the date of this Agreement;
Finance Documents means this Agreement, each Utilisation Notice, each
Accession Certificate, the Syndication Agreement and each Fee Letter,
or any other document designated as such by the Facility Agent and the
Original Borrower;
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 RAP (and includes any hire purchase contract or other arrangement
which is or should be similarly treated);
Finance Parties means the Facility Agent, the LC Issuing Bank, the
Arrangers and the Lenders, and Finance Party means any or a specific
one of them;
8
Finance Period means the period commencing on the date of this
Agreement, and ending on the date upon which the Facility Agent
confirms (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 (save where any of such contingent
liabilities or obligations are fully discharged);
Financial Covenants means the financial undertakings of the Original
Borrower set out in clause 9.4, and as further set out in schedule 7;
Financial Covenant Test Date or "FCTD" means any date upon (or as at)
which the Financial Covenants are, or are to be, tested, being 30 June
and 31 December in any year;
Financial Definitions means the definitions of Adjusted Share Capital
and Reserves, Capitalisation, Consolidated Net Borrowings, Leverage
Ratio, Liquid Assets, Net Interest and Net Revenues, all of which are
set out in schedule 7;
▇▇▇▇▇ 2 means TXU Finance (No. 2) Limited (Company number 3514100);
Government Entity means and includes (whether having a distinct legal
personality or not) any supra-national, national or local government
authority, central bank, board, commission, department, division,
organ, 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 and (if the context requires) which, in relation to
Environmental Matters, has regulatory or administrative authority under
Environmental Law;
Group means the Original Borrower and all its Subsidiaries (except for
its Project Finance Subsidiaries);
Indebtedness means any obligation for the payment or repayment of
money, whether as principal or surety and whether present or future,
actual or contingent;
Interest Payment Date means the last day of a Term of an Advance or, in
the case of any Term of more than six months' duration, the last day of
each successive period of six months during that Term;
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;
LC Outstandings 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:
(a) the aggregate amount of any cash cover (not including any cash
cover lodged by any Lender) held in relation to that Letter of
Credit at that time; and
(b) (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 LC 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 Borrower,
9
or such lesser amount as the Facility Agent and the LC Issuing Bank may
agree in good faith represents the maximum liability of the LC Issuing
Bank in respect thereof;
Lender means each Original Lender and each Substitute;
Letter of Credit or LC means a letter of credit or bank guarantee (as
the case may be) Issued or to be Issued by the LC Issuing Bank on the
terms of this Agreement, in the form set out in schedule 10 or such
other form as is reasonably acceptable to the LC Issuing Bank and the
Facility Agent;
LIBOR means, in relation to a particular period:
(a) the rate per annum of the offered quotation for deposits in
the relevant currency for a period equal or comparable to such
period which appears on Telerate page 3750 or Telerate page
3740 (as appropriate) at or about 11 a.m. London time on the
Quotation Date for such period (or such other page as may
replace such page on such service for the purpose of
displaying London interbank offered rates for deposits in such
currency); or
(b) if no such offered quotation appears, the arithmetic mean
(rounded upwards, if necessary, to four decimal places) of the
London interbank offered rates for deposits of the currency in
question for a period equal or comparable to such period at or
about 11 a.m. London time on the Quotation Date for such
period as displayed on the relevant page of the Reuter Monitor
Money Rates Service (or such other page as may replace such
page on such service for the purpose of displaying London
interbank offered rates of leading banks for deposits of that
currency); or
(c) if on such date no such offered rates are so displayed, the
arithmetic mean (rounded upwards, if necessary, to four
decimal places) of such rates for deposits of that currency
respectively quoted to the Facility Agent by each of the
Reference Banks at the request of the Facility Agent, provided
that if any of the Reference Banks shall be unable or
otherwise fail to supply such a quoted rate, "LIBOR" for the
relevant period shall be determined on the basis of the quoted
rate or rates supplied by the remaining Reference Banks or
Reference Bank, as the case may be;
Majority Lenders means at any relevant time Lenders:
(a) the aggregate of whose Contributions (expressed as a Sterling
Amount) exceeds 66 2/3 per cent. of the Total Contributions
(expressed as a Sterling Amount); or
(b) if no principal amounts are outstanding under this Agreement)
the aggregate of whose Commitments exceeds 66 2/3 per cent. of
the Total Commitments, but so that if at such time the Total
Commitments have been reduced to zero references to a Lender's
Commitment shall be construed as a reference to that Lender's
Commitment immediately prior to such reduction to zero;
Material Adverse Effect is a reference to:
(a) something having a material adverse effect on the ability of
the Original Borrower to perform its payment or financial
covenant obligations under this Agreement; or
10
(b) something which results in the Facility Agreement not being
legal, valid and binding on the Original Borrower to an extent
reasonably considered by the Majority Lenders to be materially
adverse to the interests of the Lenders;
Material Licences means those licences or other authorisations
currently held by the Group and required for the purposes of the Energy
Business;
Maturity Date means:
(a) in relation to an Advance, the last day of its Term; and
(b) in relation to a Letter of Credit, the last day on which the
Issuing Bank may be under any liability under that Letter of
Credit;
Net Proceeds means, in respect of a disposal of an asset, the full
amount of cash proceeds realised on such disposal less:
(a) the estimated reasonable costs of the disposal;
(b) the liabilities which are connected to the disposal or which
are required to be discharged as a result of the disposal,
other than liabilities incurred in contemplation of it;
(c) any cost, incurred within six months before the disposal, of
purchasing minority interests in preparation for the disposal;
(d) the provisions which the directors reasonably determine need
to be made for Taxes arising as a result of the disposal;
(e) where the asset which is the subject of the disposal is being
replaced, the cost of the replacement asset and the reasonable
costs incurred in connection with the acquisition, and so that
if the "Net Proceeds" would be a negative number, such number
will be taken to be zero;
(f) retentions made in respect of any known or reasonably
anticipated warranty claims, until such retentions are
released,
for which purpose:
(i) any proceeds received otherwise than in cash will be treated
as Net Proceeds only upon the subsequent realisation of cash
from such proceeds;
(ii) such proceeds not in Sterling shall be deemed to be their
Sterling equivalent at the date of the relevant disposal; and
(iii) "reasonable costs of the disposal" includes (in each case only
to the extent properly attributable to that disposal) legal
fees, agents' commissions, auditors' fees, registration fees
and other professional fees;
Non-Group Affiliate means TXU Corp or any Affiliate of TXU Corp. which
is not a member of the Group;
11
Obligor means each Borrower and the Guarantor;
Optional Currency means euros, US Dollars, Australian Dollars, Danish
Kroner, Norwegian Kroner, Swedish Kronor and any other currency other
than Sterling which has been approved by the Facility Agent (acting on
the instructions of all the Lenders (acting reasonably)), is readily
available in the relevant interbank market and is freely transferable
and convertible into Sterling;
Original Financial Statements means the financial statements of the
Group for the financial quarter ended 30th September, 2001, prepared in
accordance with US GAAP ("10Q");
Participating Member State means a member state of the European
Communities that adopted a single currency in accordance with the
Treaty;
Party means a party to this Agreement;
Permitted Disposals means:
(a) any disposal (including by way of securitisation) of
receivables or work-in-progress (whether or not invoiced) in
the ordinary course of business on arm's length terms provided
that (i) such disposal is on non-recourse terms (save for
recourse for disputed or ineligible debts or similar rights of
recourse) and (ii) the aggregate amount raised by such
disposals and outstanding at any time is not more than
(pound)550 million; or
(b) any disposal of obsolete or redundant assets in the ordinary
course of business on arm's length terms; or
(c) any disposal made by any member of the Group to another member
of the Group; or
(d) any disposal of assets in exchange for the acquisition of
assets the commercial purpose and effect of which is to
replace or improve upon the commercial purpose and effect of
the assets so disposed of; or
(e) any disposal, other than the expenditure or application of
cash, where the net book value of the assets disposed of (net
of other debt repayments required due to the assets being
disposed of being security for those debts or being
obligations of the entity making the disposal and costs
directly attributable to the disposal), when aggregated with
the net book value of any other assets disposed of (otherwise
than pursuant to a specific exception contained in this
definition) in the same financial year of the Group, does not
exceed 15 per cent. of the Adjusted Share Capital and Reserves
at the end of the previous financial year (such amount to be
reduced by(pound)200,000,000 upon the unconditional completion
of the West Burton Disposal in respect (only) of the remainder
of the financial year in which the West Burton Disposal is
made); or
(f) any disposal made (otherwise than pursuant to a specific
exception contained in this definition) and which causes the
threshold in (e) above to be exceeded provided that the net
proceeds of such disposal (net of other debt repayments
required due to the assets being disposed of being security
for those debts or being obligations of the entity making the
disposal and costs directly attributable to the disposal) (or
such part
12
of such net proceeds as are in excess for the then current
financial year of such threshold) are, within 12 months of the
date of such disposal, applied in a permitted application,
(where "permitted application" shall mean any of (A) the
acquisition of a replacement asset for use by the Group in
connection with the Energy Business, or (B) the acquisition of
an asset the commercial purpose and effect of which is to
replace or improve upon the commercial purpose and effect of
the asset so disposed of, or (C) any other application to
which the Facility Agent (acting reasonably on the
instructions of the Majority Lenders) may give its prior
written consent); or
(g) any disposal which constitutes a Permitted Security Interest;
or
(h) any disposal, the consideration for which is payable not later
than 12 months after the date of that disposal and 100% of the
Net Proceeds of which are promptly applied in the prepayment
and cancellation of the Facility; or
(i) any other disposal to which the Majority Lenders shall have
given their consent; or
(j) the West Burton Disposal;
Permitted Security Interest means any of the following, namely a
Security Interest:
(a) subsisting at the date of this Agreement and previously
notified in writing to the Facility Agent;
(b) over goods and/or documents of title thereto arising in the
ordinary course of letter of credit transactions;
(c) arising by way of retention of title to goods by the supplier
of those goods arising in the ordinary course of business;
(d) created after the date of this Agreement provided that the
aggregate of indebtedness secured by any subsisting Security
Interest permitted by this paragraph (d) does not exceed an
amount equal to 15 per cent. of Adjusted Share Capital and
Reserves;
(e) created after the date of this Agreement 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 the Facility Agent is notified before
the creation of the Security Interest and that the aggregate
of Borrowed Money permitted to be secured by this paragraph
(e) shall not exceed (pound)200,000,000;
(f) created after the date of this Agreement to secure a Project
Finance Borrowing and/or over an asset/shares of a Project
Finance Subsidiary;
(g) over or affecting any asset acquired by a member of the Group
after the date of this Agreement 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
13
(ii) the amount so 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;
(h) over or affecting any assets of any company which became or
becomes a member of the Group after the date of this Agreement
provided that:
(i) such Security Interest was not created at the request
of any member of the Group in contemplation of the
acquisition of that company by a member of the Group;
and
(ii) the amount so secured has not been increased at the
request of any member of the Group in contemplation
of, or since the date of, the company becoming a
member of the Group;
(i) created after the date of this Agreement with the prior
written consent of the Facility Agent (acting on the
instructions of the Majority Lenders) provided that the amount
secured is not subsequently increased above the amount
consented to;
(j) any order of a court to the extent that such order is
discharged within 28 days and the consequences would not
constitute an Event of Default;
(k) created to secure any indebtedness incurred and applied in
refinancing 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) (A) the amount of the indebtedness secured by
such Security Interest does not exceed the
amount secured by such Permitted Security
Interest at the date of the refinancing; or
(B) the amount secured by such Permitted
Security Interest is thereby reduced by an
amount equal to the amount secured by such
Security Interest; and
(ii) the assets on which the indebtedness secured by the
new Security Interest are substantially the same as
(or only some of) the assets on which the refinanced
indebtedness was secured by the original Permitted
Security Interest;
(l) consisting of a Security Interest or contractual right
restricting the payment of:
(i) cash deposits made by way of support of
counter-indemnity obligations of a member of the
Group; and/or
(ii) credit balances on bank accounts for the purposes of
netting exposure of the bank to members of the Group;
(m) 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 the acquisition of that asset,
provided that the indebtedness secured by Security Interests
under this paragraph (m) shall not exceed (pound)1,000,000 in
aggregate at any time;
14
(n) (i) arising under netting or margin call arrangements in
connection with derivatives transactions pursuant to
the standard terms of ISDA Master Agreements, Grid
Trade Master Agreements, Electricity Futures Master
Agreements, European Federation of Energy Traders
Agreements or other similar market standard documents
excluding any Security Interest specified by the
parties, in any variation, supplement or (other than
any annex or part thereof which is itself on market
standard terms) annex to those standard terms; or
(ii) 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; or
(o) arising as a result of the Original Borrower or any of its
Subsidiaries, or subsidiary undertakings acting as a paying
agent in respect of any Equity-Credit Preferred Securities;
Permitted Subsidiary Borrowings means any indebtedness in respect of
Borrowed Money of any Subsidiary of the Original Borrower:
(a) subsisting at the date of this Agreement and previously
notified in writing to the Facility Agent;
(b) being a Project Finance Borrowing;
(c) created after the date of this Agreement, and which is
refinanced by a Project Finance Borrowing within 6 months of
such incurrence provided that the aggregate amount permitted
to be secured by this paragraph shall not exceed
(pound)200,000,000;
(d) which is incurred by a company which became a member of the
Group after the date of this Agreement provided that:
(i) such indebtedness was not created at the request of
any member of the Group;
(ii) the amount of such indebtedness 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 and subject to
paragraph (i) below such indebtedness is not the
subject of a guarantee from any other member of the
Group;
(e) which is created after the date of this Agreement with the
prior written consent of the Facility Agent;
(f) which is incurred and applied in refinancing any Indebtedness
permitted by any of the foregoing paragraphs (except (c)) of
this definition but only to the extent that the amount of the
indebtedness so applied does not exceed the amount secured by
the original permitted indebtedness at the date of the
refinancing;
(g) arising under the terms of derivatives transactions; or
(h) which represents the proceeds of issue of a capital markets
instrument by a special purpose finance Subsidiary (which
itself has no Subsidiaries), the net proceeds of
15
which (after fees, expenses and any exchange differences
arising from any currency swap or similar transaction related
to such issue) are on-lent to the Original Borrower and such
indebtedness is either:
(i) not separately guaranteed by the Original Borrower;
or
(ii) if separately guaranteed by the Original Borrower,
the inter-company loan is Subordinated Debt; or (i)
which is created after the date of this Agreement,
provided that the aggregate of indebtedness permitted
by this paragraph (i) does not exceed an amount equal
to the lower of:
(i) the aggregate of:
(A) 5 per cent. of Adjusted Share Capital and Reserves;
and
(B) the principal amount of any indebtedness previously
permitted under paragraph (a) above:
(1) which has been repaid and cancelled; or
(2) the terms of which have been amended so that
the Original Borrower is the borrower of
that indebtedness and no other member of the
Group has given a guarantee of that
indebtedness; and
(C) up to (pound)100,000,000 of the principal amount of
any indebtedness of a Company which becomes a member
of the Group after the date of this Agreement which
has been guaranteed by another member of the Group;
and
(ii) 15 per cent. of Adjusted Share Capital and Reserves;
Potential Event of Default means an Event of Default or any event which
might reasonably be expected to become (with the passage of time, the
giving of a notice, the making of any determination under this
Agreement or any combination thereof) an Event of Default;
Principal Subsidiary means:
(a) the Original Borrower and any subsidiary of the Original
Borrower whose net assets exceed 10% of net assets of the
Group, or whose pre-tax profits exceed 10% of pre-tax profits
of the Group; or
(b) any member of the Group which is a holding company of a
Principal Subsidiary, as notified by the Original Borrower to
the Facility Agent at the date of this Agreement, or from time
to time during the Finance Period; or
(c) any member of the Group to which has been transferred the
whole or a material part of the business, undertaking or
assets of a Subsidiary which is, or was prior to such
transfer, a Principal Subsidiary;
16
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:
(a) which is or has been incurred by a single purpose company
(whether or not a Subsidiary of the Original Borrower) (a
"Project Finance Subsidiary") 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; or
(b) which is or has been incurred by a Subsidiary of the Original
Borrower (also a "Project Finance Subsidiary") 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; or
(c) in respect 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 Original
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
Original Borrower as described in paragraph (b),
given by any shareholder or other 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 in sub-paragraph (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
17
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 specific 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.
(d) For the purposes of each of paragraphs (a), (b) and (c) of
this definition:
(i) an off-take agreement entered into between a Group
company and 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
(ii) 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;
Project Wings means the transaction, details of which have been
disclosed to the Arrangers, relating to the Group's electricity
distribution business;
Project Wings Completion Date means the date upon which the Original
Borrower confirms to the Facility Agent that Project Wings has
unconditionally completed in accordance with the terms of the
Acquisition Agreement;
Pro Rata Share means:
(a) for the purpose of determining a Lender's share in a Credit,
the proportion which its Commitment bears to the aggregate
Commitments of all the Lenders; and
(b) for any other purpose on a particular date:
(i) the proportion which a Lender's share of the
outstanding Credits (if any) bears to all the
outstanding Credits;
(ii) if there is no Credit outstanding on that date, the
proportion which its Commitment bears to the Total
Commitments on that date; or
18
(iii) if the Total Commitments have been cancelled, the
proportion which its Commitment bore to the Total
Commitments immediately before being cancelled.
Qualifying Lender means a person which is:
(a) beneficially entitled to the interest payable to it under this
Facility; and
(b) a UK Lender or a Treaty Lender;
Quotation Date means, in relation to a Term or other period for which
EURIBOR or LIBOR or any rate of exchange is to be determined:
(a) in the case of a determination of EURIBOR, the second Banking
Day before the first day of such period; and
(b) in the case of a determination of LIBOR, the date on which
quotations would customarily be provided by leading banks in
the London Interbank Market for deposits or amounts in the
relevant currency for delivery on the first day of such period
or on any other relevant date;
Reference Banks means, the principal London offices of Barclays Bank
PLC, Citibank, N.A., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank and The Royal Bank of
Scotland plc and/or any other Lenders appointed as such pursuant to
clause 24;
Required Accounting Principles or RAP means the same accounting
principles, practices, policies and bases as were used in the Original
Financial Statements, as may be varied or amended from time to time in
accordance with clause 9.2.4;
Reservations means the principle that equitable remedies are remedies
which may be granted or refused at the discretion of the court, the
limitation of enforcement by laws relating to bankruptcy, insolvency,
liquidation, reorganisation, court schemes, moratoria, administration
and other laws generally affecting the rights of creditors, the time
barring of claims under the Limitation Acts, the possibility that an
undertaking to assume liability for or to indemnify a person against
non-payment of UK stamp duty may be void, the possibility that a charge
over receivables may constitute a floating charge rather than fixed
charge, defences of set-off or counterclaim and similar principles;
Rollover Credit means one or more Credits:
(a) to be made on the same day that a maturing Credit is due to be
repaid;
(b) the aggregate amount (in the relevant currency) of which is
equal to or less than the maturing Credit;
(c) in the same currency as the maturing Credit; and
(d) to be made to the same Borrower for the purpose of refinancing
a maturing Credit;
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
19
title, hypothecation or security interest, or any agreement or
arrangement having the effect of conferring security or a security
interest;
Sterling and (pound) means the lawful currency for the time being of
the United Kingdom and in respect of all payments to be made under the
Finance Documents in Sterling mean immediately available, freely
transferable cleared funds;
Sterling Amount means:
(a) (i) in respect of each Advance denominated in Sterling,
the amount of the Advance requested in the
Utilisation Notice relating to such Advance, or
(ii) in respect 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 in proportion to the amount (if any)
of such Advance which has been repaid or prepaid; and/or
(b) in respect of a Letter of Credit, the sum of:
(i) the amount of the LC Outstandings under that Letter
of Credit denominated in Sterling; and
(ii) the amount of Sterling required to purchase the
currency amount of the LC Outstandings under that
Letter of Credit denominated in Optional Currencies
at the spot rate on the Quotation Date,
and so that such Sterling Amount shall be recalculated by the Facility
Agent on each date on which the Majority Lenders request the Facility
Agent to do so in accordance with the provisions of clause 4.8, and any
recalculated amount above shall, until the next recalculation required
by this Agreement, constitute the relevant Sterling Amount for all
purposes of this Agreement;
Subordinated Debt means Indebtedness incurred on terms which, to the
reasonable satisfaction of the Facility Agent:
(a) prohibit repayment or prepayment of any principal amounts
(including capitalised interest) during the Finance Period;
(b) prohibit the holder of such Indebtedness from exercising any
rights or remedies which it might otherwise have to recover
such Indebtedness during the Finance Period; and
(c) 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 of a company or corporation shall be construed as a
reference to any company or corporation:
20
(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(b) more than half the issued share capital of which is
beneficially owned, directly or indirectly, by the
first-mentioned company or corporation; or
(c) which is a Subsidiary of another Subsidiary of the
first-mentioned company or corporation,
and, for these purposes, a company or corporation shall be treated as
being controlled by another if that other company or corporation is
able to direct its affairs and/or to control the composition of its
board of directors or equivalent body;
Substitute means any bank or financial institution which becomes a
party to this Agreement pursuant to the procedure set out in clause
23.1;
Substitution Certificate has the meaning given to that term in clause
23.1;
Syndication Agreement means the agreement under which certain banks and
financial institutions accede to this Agreement following general
syndication;
Target Day means a day on which the Trans-European Automated Realtime
Gross Settlement Express Transfer System (TARGET) is operating;
Taxes means all present and future taxes, levies, imposts, duties, fees
or charges of whatever nature together with interest thereon and
penalties in respect thereof and "Tax" and "Taxation" shall be
construed accordingly;
Term means each period determined under this Agreement:
(a) by reference to which interest on an Advance or an overdue
amount is calculated; or
(b) for which the LC Issuing Bank may be under a liability under a
Letter of Credit;
Total Commitments means, at any relevant time, the aggregate of the
Commitments of all the Lenders at such time;
Total Contributions means, at any relevant time, the total of the
Contributions of all the Lenders at such time;
Total Liabilities means all indebtedness of the Obligors to the Finance
Parties which arises under any of the Finance Documents;
Treaty means the Treaty establishing the European Economic Community
being the Treaty of Rome of 25 March 1957, as amended by the Single
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty (which was signed on 7
February 1992 and came into force on 1 November 1993), as amended,
varied or supplemented from time to time;
Treaty Lender means a person which 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 the Borrower
complete exemption from the imposition of any withholding or
21
deduction for or on account of taxes on interest (and which does not
carry on business in that jurisdiction through a permanent
establishment with which the Facility in respect of which the interest
is paid is effectively connected);
TXU Corp means TXU Corp, whose principal place of business is at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇. ▇▇▇▇▇, ▇▇▇;
U.K. Lender
means a Lender which is:
(a) within the charge to U.K. corporation tax in respect of a
payment of interest under this Agreement in respect of an
amount advanced by a person that was a bank for the purposes
of Section 349 of the Income and Corporation Taxes Act 1988
(as currently defined in Section 840A of the Income and
Corporation Taxes Act 1988) at the time that amount was
advanced; or
(b) a U.K. Non-Bank Lender.
U.K. Non-Bank Lender means a Lender which is:
(a) a company which is resident in the UK for tax purposes;
(b) a partnership each of whose members is a company so resident;
or
(c) a company which is not resident in the UK for tax purposes,
but which carries on a trade in the UK through a branch or
agency and is subject to corporation tax on interest paid to
it under this Facility under section 11(2) of ICTA;
Utilisation means the making of an Advance or the Issue of a Letter of
Credit;
Utilisation Date means each date on which the Facility is to be
utilised;
Utilisation Notice means a notice given by an Obligor to the Facility
Agent substantially in the form of Part A of schedule 6 (in the case of
an Advance) or Part B of schedule 6 (in the case of a Letter of
Credit);
Utilities Act means the Utilities ▇▇▇ ▇▇▇▇ 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, inter alia, to the transmission, distribution or supply of
electricity in force in the United Kingdom; and
West Burton Disposal means the disposal of the West Burton power
station on arm's length terms for fair market value.
1.2 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.
22
1.3 Construction of certain terms
In this Agreement, unless the context otherwise requires:
1.3.1 references to clauses, Parts and schedules are to be construed
as references to the clauses and Parts of, and schedules to,
this Agreement and references to this Agreement include its
schedules;
1.3.2 references to (or to any specified provision of) this
Agreement or any other document shall be construed as
references to this Agreement, that provision or that document
as in force for the time being and as from time to time
amended 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;
1.3.3 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;
1.3.4 references to an "authorisation" include any consent,
authorisation, licence, approval and permit, each as amended
from time to time;
1.3.5 words importing the plural shall include the singular and vice
versa;
1.3.6 references to a time of day are to London time;
1.3.7 references to a "person" shall be construed as including
references to an individual, firm, company, corporation,
unincorporated body of persons or any State or any of its
agencies, and references to any person include references to
its successors in title;
1.3.8 references to "assets" include all or part of any business,
undertaking, real property, personal property, uncalled
capital and any rights (whether actual or contingent, present
or future) to receive, or require delivery of, any of the
foregoing;
1.3.9 references to a "guarantee" include references to an
indemnity, standby letter of credit or other assurance against
financial loss including, without limitation, third party
charges or any obligation to purchase assets or services as a
consequence of a default by any other person to pay any
indebtedness and "guaranteed" shall be construed accordingly;
1.3.10 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 in the London foreign exchange market at or about 11
a.m. on the day on which the calculation falls to be made for
spot delivery, as determined by the Facility Agent (with the
relevant exchange rate of any such purchase being the "spot
rate");
1.3.11 references to any statute or other enactment shall be deemed
to include references to such statute or other enactment as
re-enacted, amended or extended;
23
1.3.12 references to "31 December" or "30 June" in relation to a
financial year or to a fixed date intended to mean the end of
a financial period shall be construed, unless the context
otherwise requires, as references to the accounting reference
date in respect of that financial year falling on or about
that date in the relevant year or, as the case may be, to the
accounting reference date in respect of that financial period
falling on or about that fixed date;
1.3.13 references to each of "Borrower", "Obligor", "Guarantor",
"Facility Agent", "LC Issuing Bank", "Original Lender" and
"Substitute" shall be construed so as to include its and any
subsequent successors and permitted assigns in accordance with
their respective interests and any persons or agents acting
for them or on their behalf;
1.3.14 a "holding company" of a company or corporation shall be
construed as a reference to any company or corporation of
which the first-mentioned company or corporation is a
Subsidiary;
1.3.15 "VAT" shall be construed as a reference to value added tax
including any similar tax which may be imposed in place
thereof from time to time;
1.3.16 unless the contrary intention appears, a reference to a
"month" or "months" is a reference to 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 (i) 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
(ii) subject to paragraph (i) 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 there is no such Banking Day it shall end on the
preceding Banking Day;
1.3.17 references to an Event of Default or Potential Event of
Default being "outstanding" mean that the relevant event has
not been remedied or waived; and
1.3.18 the calculation of any sum arising from the application of the
Financial Definitions shall be made with reference to:
(a) the latest compliance certificate delivered pursuant
to clause 9.1.4; or
(b) the then latest financial statements delivered
pursuant to clause 9.1.2,
whichever is the most recent.
1.4 Barclays Capital is the investment banking division of Barclays Bank
PLC.
24
PART 2 - THE CONDITIONS
2. THE CONDITIONS
2.1 Documents and evidence
The obligation of any Finance Party to participate in any Utilisation
shall be subject to the condition that the Facility Agent, or its duly
authorised representative, shall have received, and confirmed its
satisfaction with, the documents and evidence specified in schedule 4
not later than the time of the making of the first Credit, in each case
in form and substance satisfactory to the Facility Agent.
2.2 General conditions precedent
The obligation of each Finance Party to participate in any Utilisation
is subject to the further conditions that on the date of the relevant
Utilisation Notice and on the relevant Utilisation Date:
2.2.1 the representations and warranties deemed to be repeated on
that date in accordance with clause 8.3 are true and correct
on and as of each such date as if each were made with respect
to the facts and circumstances existing at such date; and
2.2.2 neither an Event of Default nor, except in the case of a
Rollover Credit, a Potential Event of Default shall have
occurred and be continuing or would result from the making of
the Credit.
2.3 Waiver of conditions precedent
The conditions specified in this clause 2 are inserted solely for the
benefit of the Lenders 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 Lenders.
25
PART 3 - THE FACILITY AND THE GUARANTEE
3. THE FACILITY AND THE GUARANTEE
3.1 Availability and purpose
Subject to the terms of this Agreement, the Lenders agree to make
available to the Obligors a (pound)900,000,000 5 year multi-currency
revolving credit facility available by way of cash advances, letters of
credit and bank guarantees to be used for the general corporate
purposes of the Group.
3.2 The Guarantee
The Guarantor gives a guarantee to the Finance Parties in the terms of
schedule 5.
4. DRAWING UNDER THE FACILITY
4.1 The Facility
4.1.1 Drawdown of Advances
Subject to the terms and conditions of this Agreement, Advances shall
be made to the relevant Borrower following receipt by the Facility
Agent from such Borrower of an appropriately completed Utilisation
Notice in the form set out in part A of schedule 6 not later than 11
a.m. one Banking Day, in the case of an Advance denominated in Sterling
and three Banking Days otherwise, before the proposed Utilisation Date.
4.1.2 Amount
Each Utilisation Notice delivered to the Facility Agent pursuant to
clause 4.1.1 shall be irrevocable and shall specify:
(i) the proposed Utilisation Date, which shall be a Banking Day
falling within the Commitment Period;
(ii) the currency of denomination of the Advance (being Sterling or
an Optional Currency);
(iii) subject to paragraph (b) below, the amount of the Advance
which shall be in a minimum amount of (pound)10,000,000 (or
the equivalent in an Optional Currency) or, if less, the
Available Facility Amount on the relevant Utilisation Date;
(iv) the Term of the Advance;
(v) the account to which the proceeds of the proposed Advance are
to be paid; and
(vi) the Maturity Date (which shall be a date falling on or before
the Final Repayment Date).
26
4.1.3 Number of Advances
There shall be no more than 15 Advances outstanding at any time, and
not more than five Advances may be made in any period of 5 consecutive
Banking Days;
4.1.4 Unavailability of Optional Currency
(a) If an Obligor requests that an Advance be denominated in an Optional
Currency during its Term; and
(i) no later than 10.00 a.m. on the Quotation Date for such
Advance, any Lender(s) (an "Affected Bank") notifies the
Facility Agent:
(A) that the relevant Optional Currency is not readily
available to it in the relevant interbank market in
the amount and for the period required; or
(B) participating in the Advance in the proposed Optional
Currency might reasonably be expected to contravene
any law or regulation applicable to it; or
(ii) no later than 11.00 a.m. on the Quotation Date for such
Advance, the Facility Agent notifies the Borrower and the
Lenders 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 Term;
then:
(A) if the circumstances in paragraph (i) 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 Banks and the Affected Bank or
Banks shall make a separate Advance in Sterling in the amount
of their scheduled participation in such Advance provided
always that the Term thereof ends on the same day as the Term
of such Advance; and/or
(B) if the circumstances described in sub-paragraph (ii) above
apply, such Advance shall not be made unless the relevant
Borrower and the Lenders otherwise agree, or the relevant
Borrower specifies in the Utilisation Notice in respect of
such Advance that such Advance should be denominated in
Sterling in such circumstances in which case such Advance
shall be made in Sterling in the Sterling Amount relating to
such Advance.
(b) An Advance will still be treated as a Rollover Credit if it is not
denominated in the same currency as the maturing Rollover Credit by
reason only of the operation of this clause 4.1.4.
(c) Any part of an Advance treated as a separate Advance under this clause
4.1.4 will not be taken into account for the purposes of any limit on
the number of Advances or currencies outstanding at any one time.
27
4.2 Advances generally
4.2.1 A Utilisation 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.
4.2.2 As soon as practicable after receipt of each Utilisation Notice for an
Advance the Facility Agent shall notify each Lender of such receipt and
of the date on which the proposed Advance is to be made and of the
relevant Term and subject to the terms of this Agreement each Lender
shall on such Utilisation Date participate in such Advance by making
available to the Facility Agent its Pro Rata Share of such Advance in
accordance with clause 12.3.
4.2.3 No Lender is obliged to participate in an Advance to the extent that:
(a) the aggregate Sterling Amount of the Credits would exceed the
Total Commitments; or
(b) its Pro Rata Share of the aggregate Sterling Amount of the
Credits would exceed its Commitments,
as a result.
4.3 Application of proceeds
None of the Finance Parties shall have any responsibility for the
application of the proceeds of any Utilisation.
4.4 Currencies
4.4.1 The relevant Borrower shall select the currency of a Credit in the
relevant Utilisation Notice.
4.4.2 The currency of each Credit must be Sterling or an Optional Currency.
4.4.3 The relevant Borrower may not choose a currency if, as a result, the
aggregate of all Advances outstanding would be denominated at any one
time in more than four Optional Currencies (for this purpose, "Optional
Currencies" excludes euros, US Dollars and Australian Dollars).
4.4.4 The Facility Agent shall notify each Lender of the currency and the
Sterling Amount of each Credit and the Spot Rate promptly after they
are ascertained.
4.5 Letters of Credit
4.5.1 A Borrower may request a Letter of Credit to be issued by giving to the
Facility Agent a duly completed Utilisation Notice.
(a) Unless the LC Issuing Bank otherwise agrees (acting
reasonably), the latest time for receipt by the Facility Agent
of a duly completed Utilisation Notice is 11.00 a.m. three
Banking Days before the proposed Utilisation Date.
(b) Each Utilisation Notice is irrevocable.
28
4.5.2 A Utilisation Notice for a Letter of Credit will not be regarded as
being duly completed unless:
(a) it identifies the Borrower;
(b) it specifies that it is for a Letter of Credit;
(c) the Utilisation Date is a Banking Day falling within the
Commitment Period;
(d) the amount of the Letter of Credit requested is:
(i) a minimum Sterling Amount of(pound)250,000; or
(ii) the maximum undrawn amount available under the
Facility on the proposed Utilisation Date; or
(iii) such other amount as the Facility Agent and LC
Issuing Bank may agree,
and does not cause the aggregate outstanding Sterling Amount
of all Letters of Credit on the proposed Utilisation Date to
exceed(pound)100,000,000;
(e) if not incorporated in the United Kingdom, the European Union,
or a State of the United States of America, the proposed
beneficiary has been previously approved by all the Lenders
provided that no Lender may withhold its approval for a
beneficiary unless required to do so by any applicable law or
regulation;
(f) it specifies the member of the Group on whose behalf the
Letter of Credit is to be issued;
(g) the form of Letter of Credit is attached and the LC Issuing
Bank and, if different, the Facility Agent (both acting
reasonably) have agreed its terms;
(h) it specifies an expiry date for the Letter of Credit which
falls on or before the earlier of 12 months after the
applicable Utilisation Date and the applicable final Maturity
Date;
(i) the delivery instructions for the Letter of Credit are
specified;
(j) no order, judgment or decree of any Government Entity or
arbitrator shall be outstanding which by its terms purports to
enjoin or restrain the LC Issuing Bank from Issuing such
Letter of Credit, nor shall any requirement of law applicable
to the LC Issuing Bank or any request or directive (whether or
not having the force of law) from any Governmental Entity with
jurisdiction over the LC Issuing Bank prohibit, or request
that the LC Issuing Bank refrain from, the Issuance of Letters
of Credit generally or such Letter of Credit in particular or
shall impose upon the LC Issuing Bank with respect to such
Letter of Credit any restriction, reserve or capital
requirement (for which the LC Issuing Bank is not otherwise
compensated hereunder and which is not in effect on the date
of this Agreement), or shall impose upon the LC Issuing Bank
any unreimbursed loss, cost or expense which was not
applicable on the date of this Agreement and which the LC
Issuing Bank in good ▇▇▇▇▇ ▇▇▇▇▇ material to it; and
29
(k) the currency in which the relevant Letter of Credit is to be
denominated is, in the reasonable opinion of the LC Issuing
Bank, not likely to be subject to excessive fluctuation
against Sterling and is likely to be freely convertible and
available in sufficient amounts to enable the LC Issuing Bank
to discharge obligations as they fall due.
Only one Letter of Credit may be requested in any Utilisation Notice.
4.6 Issue of Letter of Credit
(a) The Facility Agent must:
(i) promptly notify the LC Issuing Bank and each Lender of the
details of the requested Letter of Credit and the amount of
its respective share of that Letter of Credit; and
(ii) confirm to the LC Issuing Bank that the Utilisation Notice
appears on its face to be in order.
(b) The amount of each Lender's share in a Letter of Credit will be its Pro
Rata Share on the proposed Utilisation Date.
(c) The LC Issuing Bank is not obliged to issue any Letter of Credit to the
extent that:
(i) the aggregate Sterling Amount of the Credits would exceed the
Total Commitments; or
(ii) its Pro Rata Share of the aggregate Sterling Amount of the
Credits would exceed the aggregate of its Commitments,
as a result.
(d) If the applicable conditions set out in this Agreement have been met,
the Issuing Bank must issue the Letter of Credit on the Utilisation
Date.
4.7 Letters of Credit
4.7.1 General
(a) A Letter of Credit is "repaid" or "prepaid" in whole or in part (as
applicable) if:
(i) a Borrower provides cash cover for that Letter of Credit;
(ii) the maximum amount payable under the Letter of Credit is
reduced in accordance with its terms; or
(iii) the LC Issuing Bank is satisfied that it has no further
liability under that Letter of Credit.
The amount by which a Letter of Credit is repaid or prepaid under
sub-paragraphs (i) and (ii) above is the amount of the relevant cash
cover or reduction.
30
(b) If a Letter of Credit or any amount outstanding under a Letter of
Credit is expressed to be immediately payable, that Letter of Credit
must be repaid or prepaid immediately.
(c) "Cash cover" is provided for a Letter of Credit if a Borrower pays an
amount in the currency of the Letter of Credit to an interest-bearing
account with a Finance Party in London in the name of the Borrower and
the following conditions are met:
(i) the account is with the LC Issuing Bank (if the cash cover is
to be provided for all the Lenders) or with a Lender (if the
cash cover is to be provided for that Lender);
(ii) until no amount is or may be outstanding under that Letter of
Credit, withdrawals from the account may only be made to pay a
Finance Party amounts due and payable to it under that Letter
of Credit or this clause; and
(iii) the Borrower has executed a security document over that
account, in form and substance satisfactory to the LC Issuing
Bank or the relevant Lender, creating a first ranking security
interest over that account.
(d) The "outstanding" or "principal" amount of a Letter of Credit at any
time is the maximum amount that is or may be payable by the relevant
Borrower under or in respect of that Letter of Credit at that time.
4.7.2 Letter of Credit fee
(a) Each Borrower must pay to the Facility Agent for each Lender a letter
of credit fee computed at a rate from time to time equal to the
Applicable Margin at that time, on the outstanding amount of each
Letter of Credit requested by it for the period from the issue of that
Letter of Credit until its Maturity Date. This fee will be distributed
according to each Lender's Pro Rata Share under the Facility, adjusted
to reflect any assignment or transfer to or by that Lender.
(b) Accrued letter of credit fee is payable quarterly in arrear (or any
shorter period that ends on the Maturity Date for that Letter of
Credit). Accrued letter of credit fee is also payable to the Facility
Agent on the cancelled amount of any Lender's Commitment at the time
the cancellation is effective if that Commitment is cancelled in full
and the Letter of Credit prepaid or repaid in full.
4.7.3 Claims under a Letter of Credit
(a) Each Borrower irrevocably and unconditionally authorises the LC Issuing
Bank to pay any claim made or purported to be made under a Letter of
Credit requested by it and which appears on its face to be in order (a
"claim").
(b) The relevant Borrower must immediately on demand pay to the Facility
Agent for the LC Issuing Bank an amount equal to the amount of any
claim.
(c) Each Borrower acknowledges that the LC Issuing Bank:
(i) is not obliged to carry out any investigation or seek any
confirmation from any other person before paying a claim; and
31
(ii) deals in documents only and will not be concerned with the
legality of a claim or any underlying transaction or any
available set-off, counterclaim or other defence of any
person.
(d) The obligations of a Borrower under this clause will not be affected
by:
(i) the sufficiency, accuracy or genuiness of any claim or any
other document; or
(ii) any incapacity of, or limitation on the powers of, any person
signing a claim or other document.
4.7.4 Indemnities
(a) A Borrower must immediately on demand indemnify the LC Issuing Bank
against any loss or liability which the LC Issuing Bank incurs under or
in connection with any Letter of Credit requested by it, except to the
extent that the loss or liability is directly caused by the gross
negligence or wilful misconduct of the LC Issuing Bank.
(b) Each Lender must immediately on demand indemnify the LC Issuing Bank
against its share of any loss or liability which the LC Issuing Bank
incurs under or in connection with any Letter of Credit and which has
not been paid for by an Obligor, except to the extent that the loss or
liability is directly caused by the gross negligence or wilful
misconduct of the LC Issuing Bank.
(c) A Lender's share of the liability or loss referred to in sub-paragraph
(b) above will be its Pro Rata Share under the Facility on the
Utilisation Date, adjusted to reflect any subsequent assignment or
transfer under this Agreement.
(d) The relevant Borrower must immediately on demand reimburse any Lender
for any payment it makes to the LC Issuing Bank under this clause
except to the extent that the relevant Borrower has already paid a
corresponding amount in respect of the same claim to the Facility Agent
pursuant to clause 4.7.4(b).
(e) The obligations of each Lender under this clause are continuing
obligations and will extend to the ultimate balance of all sums payable
by that Lender under or in connection with any Letter of Credit,
regardless of any intermediate payment or discharge in whole or in
part.
(f) The obligations of any Lender under this clause will not be affected by
any act, omission or thing which, but for this provision, would reduce,
release or prejudice any of its obligations under this clause (whether
or not known to it or any other person). This includes:
(i) any time or waiver granted to, or composition with, any
person;
(ii) any release of any person under the terms of any composition
or arrangement;
(iii) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of, any
person;
(iv) any non-presentation or non-observance of any formality or
other requirement in respect of any instrument or any failure
to realise the full value of any security;
32
(v) any incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or
status of any person;
(vi) any amendment (however fundamental) of a Finance Document, any
Letter of Credit or any other document or security; or
(vii) any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document, any
Letter of Credit or any other document or security.
4.7.5 Rights of contribution
No Borrower will be entitled to any right of contribution or indemnity
from any Finance Party in respect of any payment it may make under this
clause. 4.8 Currency fluctuations
In addition and without prejudice to the Lenders' other rights
hereunder, the Facility Agent shall on every FCTD (and at any other
time at which it is requested to do so by the Majority Lenders)
calculate the aggregate of the Sterling Amounts of all Letters of
Credit and Advances then outstanding.
4.9 Clawback
4.9.1 If the Facility Agent at any time issues a certificate addressed to the
Original Borrower that in its opinion the aggregate of the Sterling
Amount of Letters of Credit and Advances then outstanding is equal to
or exceeds 105% of the aggregate amount of the Total Commitments the
Facility Agent may give notice to the Original Borrower requiring it
within five Banking Days either to:
(a) make arrangements to repay Advances and/or reduce the amount
of the Letters of Credit outstanding so as to bring the
Sterling Amount of all such Letters of Credit and Advances to
an amount equal to or below 100% of the Total Commitments; or
(b) provide the LC 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 4.9.1 to be
satisfied.
4.9.2 If the Facility Agent at any time issues a certificate addressed to the
Original Borrower that in its opinion the aggregate of the Sterling
Amount of Letters of Credit then outstanding is equal to or exceeds
(pound)105,000,000, the Facility Agent may give notice to the Original
Borrower requiring it within five Banking Days to provide the LC
Issuing Bank with cash cover in the currency in which any Letter of
Credit is denominated of such amount as will bring the aggregate
Sterling Amount of all Letters of Credit equal to or below
(pound)100,000,000.
4.10 Advance to fund Letter of Credit claims
4.10.1 Subject to the terms of this Agreement, forthwith on a beneficiary
making a claim under a Letter of Credit, unless otherwise agreed
between the Lenders and the relevant Borrower, the liability of that
Borrower to indemnify the LC Issuing Bank or the Lenders in respect of
such claim shall be deemed to have been fulfilled on the date of
satisfaction of such claim and that
33
Borrower shall be deemed to have drawn an Advance in the amount of the
claim, the proceeds of which shall be deemed to have been applied in
discharge of that liability.
4.10.2 The Term relating to any Advance deemed made under clause 4.10.1 shall
begin on (and the Utilisation Date for that Advance for the purpose of
determining the applicable LIBOR or EURIBOR shall be) the date on which
the LC Issuing Bank makes payment under the relevant Letter of Credit,
and that Term shall be one month (or such other period as the relevant
Borrower and the Facility Agent may agree).
4.10.3 This clause will not apply if a claim is made after the relevant final
Maturity Date.
5. INTEREST AND TERMS
5.1 Interest on Advances
Each Borrower shall pay interest on each Advance made to it for each
Term on the relevant Interest Payment Date at the rate per annum
determined by the Facility Agent to be the aggregate of:
5.1.1 in respect of any Advance denominated in euros:
(a) the Applicable Margin;
(b) EURIBOR; and
(c) the Additional Cost; and
5.1.2 in respect of an Advance denominated in any other currency:
(a) the Applicable Margin;
(b) LIBOR; and
(c) the Additional Cost.
5.2 Terms for Advances
5.2.1 A Borrower must select the Term for an Advance in the relevant
Utilisation Notice. The Term for an Advance shall have a duration of 1,
2, 3 or 6 months (or such other period as the Lenders may agree)
provided that, if the relevant Borrower does not so select the Term,
that Advance shall have a Term of 3 months.
5.2.2 Every Term for an Advance shall be of the duration specified pursuant
to clause 5.2.1 but so that:
(a) each Advance shall have one Term only; and
(b) each Term for an Advance shall commence on such Advance's
Utilisation Date.
5.2.3 If a Term for an Advance would otherwise overrun the Final Repayment
Date, it shall be shortened so that it ends on the Final Repayment
Date.
34
5.3 Interest on overdue amounts
5.3.1 If an Obligor fails to pay any sum (including, without limitation, any
sum payable pursuant to this clause 5.3) on its due date for payment
under this Agreement the relevant Obligor shall pay interest on such
sum from the due date up to the date of actual payment (as well after
as before judgment) at a rate determined by the Facility Agent to be
the aggregate (as determined by the Facility Agent) of (i) 1 per cent.,
(ii) the Applicable Margin, (iii) LIBOR (or, if relevant, EURIBOR) and
(iv) the Additional Cost.
5.3.2 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 3 months as selected by the Facility Agent (acting reasonably)
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 then the first such period selected by the
Facility Agent shall end on such Interest Payment Date.
5.3.3 Interest under this clause 5.3 shall be due and payable on the last day
of each period determined by the Facility Agent pursuant to this clause
5.3 or, if earlier, on the date on which the sum in respect of which
such interest is accruing shall actually be paid.
5.4 Notification of Terms and interest rate
The Facility Agent shall notify the relevant Borrower and the Lenders
promptly of the duration of each Term 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 5.4.
5.5 Market Disruption
5.5.1 If LIBOR or EURIBOR is to be calculated by reference to the Reference
Banks but a Reference Bank does not supply a rate by 12.00 noon (local
time) on a Quotation Date, the applicable LIBOR or EURIBOR will,
subject as provided below, be calculated on the basis of the rates of
the remaining Reference Banks.
5.5.2 In this clause, each of the following events is a "market disruption
event":
(a) LIBOR or EURIBOR is to be calculated by reference to the
Reference Banks but no, or only one, Reference Bank supplies a
rate by 12.00 noon (local time) on the Quotation Date; or
(b) the Facility Agent receives by close of business on the
Quotation Date notification from Lenders whose shares in the
relevant Advance exceed 30 per cent. of that Advance that the
cost to them of obtaining matching deposits in the relevant
interbank market is in excess of LIBOR or EURIBOR for the
relevant Term.
5.5.3 The Facility Agent must promptly notify the Original Borrower and the
Lenders of a market disruption event.
5.5.4 After notification under paragraph (b) above, the rate of interest on
each Lender's share in the affected Advance for the relevant Term will
be the aggregate of the:
35
(a) Applicable Margin;
(b) rate notified to the Facility Agent by that Lender as soon as
practicable to be that which expresses as a percentage rate
per annum the cost to that Lender of funding its share in that
Advance from whatever source it may reasonably select; and
(c) Additional Cost.
5.5.5 If a market disruption event occurs and the Facility Agent or the
Original Borrower so requires, the Original Borrower and the Facility
Agent must enter into negotiations for a period of not more than 30
days with a view to agreeing an alternative basis for determining the
rate of interest and/or funding for the affected Advance and any future
Advance.
5.5.6 Any alternative basis agreed under clause 5.5.5 will be, with the prior
consent of all the Lenders, binding on all the Parties.
6. REPAYMENT, PREPAYMENT AND CANCELLATION
6.1 Repayment of the Facility
6.1.1 The relevant Borrower shall repay each Credit in full on its Maturity
Date.
6.1.2 No Credit may be outstanding after the Final Repayment Date.
6.1.3 Subject to the terms of this Agreement, amounts repaid in respect of
Advances or Letters of Credit under clause 6.1.1 may be reborrowed.
6.2 Optional prepayment of all the Lenders
6.2.1 A Borrower may (without premium or penalty), prepay a Credit in whole
or part on the next succeeding Interest Payment Date or, together with
any relevant amounts payable pursuant to clause 13.1, any other date.
6.2.2 Subject to the terms of this Agreement, amounts prepaid under clause
6.2.1 in respect of Advances or Letters of Credit may be reborrowed.
6.3 Optional prepayment of a Lender
6.3.1 A Borrower may also prepay (in whole but not in part only), without
premium or penalty, the whole of the Contributions of any Lender to
which that Borrower shall have become obliged to pay additional amounts
under clauses 14.2 or 15.1.
6.3.2 Upon any notice of prepayment under clause 6.3.1 being given, the
Commitment of the relevant Lender shall be reduced to zero and the
Total Commitments shall be reduced accordingly.
6.4 Mandatory prepayment following a change of Control
6.4.1 Upon a Change of Control of TXU Corp, each Lender may require the
Borrowers to prepay all amounts outstanding to that Lender under the
Facility on a date no earlier than that falling
36
30 days following receipt by the Facility Agent of notice of such
Change of Control (such notice to be sent to the Facility Agent within
5 days of any Change of Control in any event).
6.4.2 a "Change of Control" occurs if:
(a) any person or group of related persons (other than TXU Corp,
any Subsidiary of TXU Corp or any pension, savings or other
employee benefit plan for the benefit of employees of TXU Corp
and/or any Subsidiary of TXU Corp) shall have acquired
beneficial ownership of more than 30% of the outstanding
Voting Shares (within the meaning of section 13(d) of the
Securities ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ of the United States of America,
as amended, and the applicable rules and regulations
thereunder) of TXU Corp; or
(b) other than as an immediate consequence of the retirement of
the President of TXU Corp as at the date of this Agreement,
during any period of 12 consecutive months, commencing on or
after the date of this Agreement, individuals who on the first
day of such period were directors of TXU Corp (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 TXU Corp.
6.5 Voluntary cancellation
(a) The Original Borrower may cancel without penalty the unutilised amount
of the Total Commitments in whole or in part.
(b) Partial cancellation of the Total Commitments must be in a minimum
amount of(pound)10,000,000 and an integral multiple of(pound)1,000,000.
(c) Any cancellation in part will be applied against the Commitment of each
Lender pro rata.
6.6 Automatic cancellation
The unutilised Commitment of each Lender will be automatically
cancelled at the end of the Commitment Period.
6.7 Prepayments generally
6.8.1 No prepayment may be made pursuant to clauses 6.2 or 6.3 and no
cancellation may be made under clause 6.6 unless the relevant Borrower
shall have given the Facility Agent at least 5 Banking Days' prior
notice (or such shorter period as the Facility Agent may agree)
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.
6.8.2 No amount prepaid under clause 6.4 may be reborrowed.
6.8.3 All prepayments shall be made together with (to the extent these relate
to the amounts prepaid) (a) accrued interest to the date of prepayment;
(b) any additional amounts payable under clauses 14.2 and 15.1; and (c)
all other sums payable by the Borrowers to the Lenders under this
Agreement or the Finance Documents including, without limitation, any
accrued
37
commitment commission payable under clause 7.3 and any amounts payable
under clause 13.1.
6.8.4 No amount of the Total Commitments cancelled under this clause 6 may be
reinstated.
6.8.5 The Borrowers may not make any prepayments in respect of the Facility
save as expressly provided in this Agreement.
38
PART 4 - FEES AND EXPENSES
7. FEES AND EXPENSES
7.1 Arrangement and other fees
The Original Borrower shall pay to the Facility Agent or shall procure
that there is paid:
7.1.1 for the account of the Arrangers, underwriting fees in the
amounts, and on the dates, stated in the relevant Fee Letter;
7.1.2 for the account of the Facility Agent, agency fees of an
amount, and on the dates, stated in the relevant Fee Letter;
7.1.3 for the account of the Arrangers, a participation fee of an
amount, and on the dates, stated in the relevant Fee Letter;
and
7.1.4 for the account of the LC Issuing Bank, LC Issuing Bank fees
of an amount, and on the dates, stated in the relevant Fee
Letter.
7.2 Commitment fees
The Original Borrower shall pay (quarterly in arrear) to the Facility
Agent for the account of each Lender a commitment fee on the daily
amount of the undrawn uncancelled Commitments computed at a rate equal
to 45 per cent. of the Applicable Margin from time to time.
For this purpose, Credits are taken at their Sterling Amount.
Accrued commitment fee is also payable to the Facility Agent for a
Lender on the date its Commitment under the Facility is cancelled in
full.
7.3 Expenses
The Original Borrower shall reimburse the Finance Parties from time to
time, within three Banking Days of receipt of demand for:
7.4.1 all reasonable costs and expenses (including without
limitation legal, printing and out-of-pocket expenses)
incurred by the Finance Parties in connection with the
negotiation, preparation or execution of, 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
7.4.2 without prejudice to the generality of clause 7.4.3, all
reasonable 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 Group
following the occurrence of
39
an Event of Default whilst it is continuing and the Original
Borrower undertakes to give, and to procure that its
Subsidiaries give, all such reasonable assistance (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
7.4.3 after an Event of 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.
7.4 Value Added Tax
7.5.1 Any amount (including costs and expenses) payable under a Finance
Document by an Obligor is exclusive of any Tax (including value added
tax) which might be chargeable in connection with that amount. If any
such Tax is chargeable, the Obligor must pay to the Finance Party (in
addition to and at the same time as paying that amount) an amount equal
to the amount of that Tax.
7.5.2 The obligation of any Obligor under clause 7.5.1 above will be reduced
to the extent that the Finance Party is entitled to repayment or a
credit in respect of the relevant Tax.
7.5 Stamp and other duties
The Original 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, execution or enforcement 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 Original Borrower to
pay such duties or Taxes.
40
PART 5 - WARRANTIES, COVENANTS AND DEFAULTS
8. REPRESENTATIONS AND WARRANTIES
Each Obligor represents and warrants to the Finance Parties that:
8.1 Repeated representations and warranties
8.1.1 Due incorporation: it is duly incorporated and validly existing under
the laws of the jurisdiction of its incorporation, and has power to
carry on its business as it is now being conducted and to own all of
its property and other assets;
8.1.2 Corporate power: it has or, prior to the execution, delivery and
performance of the same, will have, power to execute, deliver and
perform its obligations under each of the Finance Documents to which it
is party and to borrow the relevant Commitments, all necessary
corporate, shareholder and other action has been or, prior to the
execution, delivery and performance of the same, will have been taken
to authorise the execution, delivery and performance of the same and no
limitation on its powers to borrow will be exceeded as a result of any
transaction under any of the Finance Documents;
8.1.3 Binding obligations:
(a) this Agreement and each of the other Finance Documents when
executed and delivered by it will (subject to the
Reservations) constitute valid, legally binding and
enforceable obligations of it in accordance with their
respective terms; and
(b) it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement
or any other Finance Document that it or they or any other
instrument be notarised, filed, recorded, registered or
enrolled in any court, public office or elsewhere in the
jurisdiction of incorporation of any Obligor or that any
stamp, registration or similar tax or charge be paid in the
jurisdiction of incorporation of any Obligor on or in relation
to this Agreement or any other Finance Document (save for
stamp, registration and other similar taxes or charges that
have been or will be paid within the requisite statutory
period for payment of the same), and this Agreement and the
other Finance Documents are in proper form for their
enforcement in the courts of such jurisdictions;
8.1.4 No conflict with other obligations: the execution and delivery of, the
performance of its obligations under, and compliance with the
provisions of each Finance Document by it will not:
(a) contravene any existing applicable law, statute or regulation
having the force of law or any judgment, decree or permit of a
court of law or Government Entity to which it is subject;
(b) conflict with, or result in any breach of any of the terms of,
or constitute a default under, any material agreement or other
instrument of material value to the Group to which it is a
party or is subject or by which its property is bound;
41
(c) contravene or conflict with any provision of its Memorandum or
Articles of Association or, as the case may be, other relevant
incorporation documents or by-laws; or
(d) result, other than pursuant to the provisions of any of the
Finance Documents, in the creation or imposition of, or oblige
any member of the Group to create, any Security Interest (save
for a Permitted Security Interest) on any member of the
Group's assets, rights or revenues,
where (in the case of any occasion, other than on the date of this
Agreement and the first Utilisation Date, on which this representation
is made or is deemed to be repeated) any such contravention, conflict
or Security Interest would result in a Material Adverse Effect; and
8.1.5 Financial statements: the then latest audited financial statements
delivered to the Facility Agent under clause 9.1.1 have been prepared
in accordance with the Required Accounting Principles and present a
true and fair view of the financial position of the Group as at the
date to which such financial statements were made up;
8.1.6 Material Licences: it is not in contravention of any Material Licence,
or any requirement of any related legislation, and no notice has been
given to revoke, modify or amend any such Material Licence, where such
contravention, revocation, modification or amendment would result in a
Material Adverse Effect; and
8.1.7 Environmental matters: it is not aware of any breach of any
Environmental Law or Environmental Licence, where such breach would
reasonably be expected to have a Material Adverse Effect.
8.2 Non-repeating representations and warranties
8.2.1 Copies of documents to be true and accurate: the copies of the Finance
Documents and the other relevant incorporation and constitutional
documents delivered to the Facility Agent in accordance with schedule 4
are true, complete and accurate in all material respects and have not
been amended, varied or supplemented in any material way save where a
copy of such amendment, variation or supplement has been provided to
the Facility Agent on or before its execution of this Agreement;
8.2.2 Insolvency proceedings: none of the circumstances set out in clauses
11.1.7 to 11.1.12 (inclusive) is continuing in respect of any member of
the Group;
8.2.3 Litigation/labour disputes: to the best of its knowledge and belief, no
material litigation, alternative dispute resolution, arbitration,
administration proceeding or material labour dispute is taking place,
pending or threatened in writing against it or any other member of the
Group which if adversely determined would reasonably be expected to
have a Material Adverse Effect;
8.2.4 No Default: no Event of Default or Potential Event of Default has
occurred and is continuing;
8.2.5 Security Interests: 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.
42
8.2.6 Material adverse change: there has been no material adverse change in
the financial condition of the Original Borrower or the Group taken as
a whole since the date to which the Original Financial Statements were
made up.
8.3 Repetition
The representations and warranties in clause 8.1 and 8.2 shall be
deemed to be made or repeated (as appropriate):
8.3.1 on and as of the date of this Agreement and the first
Utilisation Date; and
8.3.2 in the case of clause 8.1 (only), on:
(a) each Utilisation Date and Interest Payment Date; and
(b) on the date on which an Additional Borrower becomes a
Party,
(in each case) as if made with reference to the facts and
circumstances existing on each such date.
8.4 Further representations and warranties
On and as of the date of this Agreement, and on each Utilisation Date
and Interest Payment Date falling prior to the Project Wings Completion
Date, the Original Borrower represents and warrants to the Finance
Parties in the terms of paragraph 1 of schedule 9.
9. UNDERTAKINGS
9.1 Financial Information
The Original Borrower shall:
9.1.1 as soon as the same become available, but in any event within
90 days of the end of each financial year, deliver to the
Facility Agent its annual audited consolidated "10K" financial
statements relating to such period prepared in accordance with
RAP;
9.1.2 as soon as the same become available, but in any event within
60 days of the end of each quarter (other than the fourth
quarter in any financial year), deliver to the Facility Agent
its unaudited consolidated "10Q" financial statements relating
to such period;
9.1.3 if required to be prepared under the laws of the jurisdiction
of incorporation of the relevant Obligor, as soon as the same
become available, but in any event within the period allowed
for production of such financial statements by relevant law,
the unconsolidated (audited if audited financial statements
are prepared) annual financial statements of each Obligor
other than the Original Borrower;
9.1.4 at the time of the delivery of the financial statements
relating to the second and fourth quarters of each financial
year delivered in accordance with clause 9.1.1 and/or 9.1.2,
as the case may be, provide a certificate signed by a director
of the Original Borrower (without personal liability) stating:
43
(a) the respective amounts (and showing the underlying
calculations) of Adjusted Share Capital and Reserves,
Capitalisation, Consolidated Net Borrowings, Liquid
Assets, Net Reserves and Net Interest in respect of
or, as the case may be, as at the end of the relevant
period specified in the Financial Covenants; and
(b) the application of the respective amounts of Adjusted
Share Capital and Reserves, Capitalisation,
Consolidated Net Borrowings, Liquid Assets, Net
Reserves and Net Interest to the Financial Covenants
and confirming that, as at the date to which the
relevant financial statements are made up, it was in
compliance with the Financial Covenants (or, if not,
indicating the extent of the breach and the steps
intended to be taken to remedy the same) and that, as
at a date not more than 7 days prior to the delivery
of the certificate, no Potential Event of Default has
occurred and is continuing (or, if such is not the
case, specifying the same);
9.1.5 promptly upon becoming aware of the same, inform the Facility
Agent of any Potential Event of Default or Event of Default
which has not been remedied;
9.1.6 as soon as practicable after its issue, every report,
circular, notice or like document issued by the Original
Borrower to its creditors generally; and
9.1.7 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.
9.2 Accounting principles, etc.
The Original Borrower shall ensure that:
9.2.1 each set of financial statements delivered by it pursuant to
clause 9.1 is prepared in accordance with the Required
Accounting Principles;
9.2.2 each set of financial statements delivered by it pursuant to
clause 9.1 are certified by its duly authorised officer as
giving a true and fair view of its financial condition as at
the end of the period to which those financial statements
relate and of the results of its respective operations during
such period;
9.2.3 each set of financial statements delivered by it pursuant to
clause 9.1.1 (only) has been audited by an internationally
recognised firm of accountants; and
9.2.4 it shall not adopt any accounting policy or change the
consistency of application of its accounting principles from
the Required Accounting Principles unless the revised policy
and practices adopted from time to time are in accordance with
generally accepted accounting principles or similar principles
in its jurisdiction of incorporation or the jurisdiction of
TXU Corp., and the Original Borrower shall then provide either
(i) financial statements on the same basis as before or (ii)
financial statements containing a statement reconciling the
previous and then current accounting policy in order that the
Lenders may determine the financial condition of the Group
having regard to the terms of this Agreement.
44
9.3 General undertakings
Each Obligor shall:
9.3.1 Environmental matters: ensure that no member of the Group is
in breach of any Environmental Law, where such breach would
have a Material Adverse Effect;
9.3.2 Compliance with consents etc. relating to the business:
without prejudice to clause 2, obtain or cause to be obtained,
maintain in full force and effect and comply in all material
respects with the conditions and restrictions (if any) imposed
in, or in connection with, every law (including Environmental
Laws), regulation, agreement, licence (including, for the
avoidance of doubt, the Material Licences), and concession,
and maintain all authorisations, material to the carrying on
of the Energy Business, where failure to do so would have a
Material Adverse Effect;
9.3.3 Pari passu: ensure that its obligations under this Agreement
and each of the other Finance Documents shall at all times be
direct, general and unconditional obligations and rank at
least pari passu with all its other present and future
unsecured and unsubordinated Indebtedness, with the exception
of any obligations which are mandatorily preferred by law and
not by contract;
9.3.4 Insurance:
(a) and will procure that each of its Subsidiaries will,
(in each case subject to market availability on
reasonable commercial terms) insure and keep insured
all its property and assets of an insurable nature
and which are customarily insured (either generally
or by companies carrying on a similar business)
against loss or damage by fire and other risks
normally insured against by persons carrying on the
same class of business as that carried on by it in a
sum or sums equal to the replacement value of the
same (meaning the total cost of entirely rebuilding,
reinstating or replacing such property and assets in
the event of them being completely destroyed together
with architects' and surveyors' fees) with reputable
independent insurance companies or underwriters;
(b) without prejudice to paragraph (a) above, it will,
and will procure that each of its Subsidiaries will
(in each case subject to market availability on
reasonable commercial terms), maintain insurance
against business interruption, loss of profits,
product liability, pollution and public liability at
levels increasing consistently with increasing
business levels;
(c) it will, and will procure that each of its
Subsidiaries will, promptly pay all premiums and do
all other things necessary to maintain the insurances
required to be taken out and maintained by it
pursuant to paragraphs (a) and (b) above;
9.3.5 Project Finance Subsidiaries: ensure that 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:
45
(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 Borrower,
promptly on the incurrence of such liability or right
of recourse, notifies 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.
9.4 Financial Covenants
The Original Borrower will comply with the Financial Covenants
throughout the Finance Period.
9.5 Further Undertakings
At all times prior to the Project Wings Completion Date, the Original
Borrower shall comply with the undertakings set out at paragraph 2 of
schedule 11.
9.6 Conditions Subsequent
9.6.1 Within 10 days after the Project Wings Completion Date, the Original
Borrower shall deliver finalised pro forma financial statements
reflecting the outcome of Project Wings, prepared in accordance with
RAP to the Facility Agent.
9.6.2 Within 10 days after the Project Wings Completion Date, the Borrower
shall deliver a statement detailing the flow of funds received in
connection with Project Wings to the Facility Agent.
9.6.3 Within 10 days (or such longer period as the Majority Lenders may
agree) after the date of this Agreement, the Original Borrower shall
deliver a copy of the final ratings confirmation from ▇▇▇▇▇'▇ and
Standard & Poors.
10. NEGATIVE COVENANTS
10.1 Each Obligor undertakes with each of the Finance Parties that
throughout the Finance Period it shall not, without the prior written
consent of the Facility Agent:
10.1.1 Negative pledge: permit any Security Interest to subsist,
arise or be created or extended over all or any part of the
present or future undertakings, assets, rights or revenue of
any member of the Group, save for any Permitted Security
Interest;
10.1.2 Material Licences: grant its consent to the revocation,
amendment or modification of a Material Licence, where such
revocation, amendment or modification would have a Material
Adverse Effect;
46
10.1.3 Change in business: materially alter the nature of the
business of the Group taken as a whole;
10.1.4 No Disposals: and 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 (other than disposals made pursuant to
Project Wings):
(i) any shares in, any material loans to, or other
material claims on any Principal Subsidiary;
(ii) the whole or a substantial part of the undertaking or
assets of any Principal Subsidiary; or
(iii) any other significant assets.
The restrictions will not apply to Permitted Disposals; or
10.1.5 Subsidiary Borrowed Money: permit any Subsidiary to incur or
guarantee any Borrowed Money, other than Permitted Subsidiary
Borrowings.
10.2 Further Negative Covenants
At all times prior to the Project Wings Completion Date the Original
Borrower shall comply with the undertakings set out at paragraph 3 of
schedule 11.
11. EVENTS OF DEFAULT
11.1 Events of Default
For the purposes of this Agreement, each of the following shall
constitute an Event of Default:
11.1.1 Non-payment: any Obligor fails to pay any sum when due under
the Finance Documents in the currency and in the manner
specified, provided it shall not be an Event of Default under
this clause 11.1.1 if such failure to pay is attributable to
an administrative or technical error and the relevant payment
is made within 3 Banking Days of its due date; or
11.1.2 Breach of certain obligations: the Original Borrower commits
any breach of, or omits to observe any of the obligations or
undertakings expressed to be assumed by it under, clause 9.4;
or
11.1.3 Breach of other obligations: any 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
clauses 11.1.1 and 11.1.2) and such breach or omission, if
capable of remedy, has not been remedied within 21 Banking
Days of the earlier of the Original Borrower's knowledge of
such breach or omission and the Facility Agent notifying it of
such breach or omission in writing; or
47
11.1.4 Breach of representation: any representation, warranty or
written statement made by an Obligor in a Finance Document is,
or proves to have been, incorrect or misleading when made and
such misrepresentation, if capable of remedy, has not been
remedied within 21 Banking Days of the earlier of the Original
Borrower's knowledge of such breach or omission and the
Facility Agent notifying it of such breach or omission in
writing; or
11.1.5 Cross default: other than, for the period ending 90 days after
the date of this Agreement, in respect of defaults occurring
under the Existing Financings as a result of Project Wings:
(a) any Borrowed Money of any member of the Group at any
time becomes prematurely due and payable prior to the
date when it would otherwise have become due by
reason of a default occurring, or any creditor of any
member of the Group becomes entitled to declare any
such Borrowed Money due and payable prior to the date
when it would otherwise have become due by reason of
default occurring, or any guarantee given by any
member of the Group in respect of Borrowed Money is
not honoured when due and called upon; or
(b) any Borrowed Money of any member of the Group is not
paid as and when the same is or becomes due and
payable (or within any applicable grace period),
and the aggregate amount at any time of all Borrowed Money in
respect of which (a) and/or (b) applies is equal to or greater
than the higher of(pound)25,000,000 and the sum equal to 1.5
per cent. of the Adjusted Share Capital and Reserves; or
11.1.6 Legal process: any judgment or order made against the Borrower
or any Principal Subsidiary (save where such judgment or order
is being appealed by all appropriate means) is not stayed or
complied with within 21 days 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 material part of the undertakings, assets, rights or
revenues of the Borrower or any Principal Subsidiary and is
not discharged within 21 days; or
11.1.7 Insolvency: an Obligor or a Principal Subsidiary:
(a) is deemed unable to pay its debts in accordance with
section 123(1)(a), (b) or (e) or (2) of the
Insolvency ▇▇▇ ▇▇▇▇;
(b) becomes, or admits to being, unable generally to pay
its debts as they fall due; or
(c) otherwise becomes insolvent or stops or suspends
making payments (whether of principal or interest)
with respect to all or any class of its debts by
reason of inability to do so or announces an
intention to do so; or
48
11.1.8 Administration:
(a) any meeting of an Obligor or a Principal Subsidiary
is convened for the purpose of considering any
resolution to present an application for an
administration order;
(b) a petition for an administration order in relation to
an Obligor or such Principal Subsidiary 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, other than any such
petition which is shown to the satisfaction of the
Facility Agent (acting reasonably) to be frivolous,
vexatious or an abuse of the process of court and is
withdrawn not less than two clear Banking Days before
the first date fixed for the hearing thereof;
(c) an Obligor or a Principal Subsidiary passes a
resolution to present an application for an
administration order; or
(d) an administration order is made in relation to an
Obligor or a Principal Subsidiary; or
11.1.9 Compositions etc.: any steps are taken, or negotiations
commenced, by an Obligor or a Principal Subsidiary 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 any of its creditors
generally and by reason of such company's inability to pay its
debts; or
11.1.10 Appointment of receivers and managers:
(a) any administrative or other receiver or any manager
is appointed of an Obligor or a Principal Subsidiary
or any material part of its assets and/or
undertakings;
(b) the directors of an Obligor or such Principal
Subsidiary request any person to appoint such a
receiver or manager; or
(c) any other enforcement action is taken in respect of
any Security Interest over all or any material part
of the assets and/or undertakings of an Obligor or a
Principal Subsidiary; or
11.1.11 Winding up:
(a) any meeting of an Obligor or a Principal Subsidiary
is convened for the purpose of considering any
resolution for (or to petition for) its or their
winding up;
(b) an Obligor or a Principal Subsidiary passes such a
resolution;
(c) any person presents any petition for the winding up
of an Obligor or a Principal Subsidiary (not being a
petition which such Obligor or such Principal
Subsidiary can demonstrate to the satisfaction of the
Facility Agent (acting reasonably) is frivolous,
vexatious or an abuse of the process of the
49
court or relates to a claim for which a good defence
exists which is being defended vigorously) and, in
each case, the relevant petition is discharged or
withdrawn within 28 days (or such longer period as
the Majority Lenders may agree);
(d) an order for the winding up of an Obligor or a
Principal Subsidiary is made; or
(e) 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 an Obligor or a Principal
Subsidiary; or
11.1.12 Analogous proceedings: there occurs, in relation to an Obligor
or a Principal Subsidiary, 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 Lenders, appears in
that country or territory to correspond with, or have an
effect equivalent to, any of those mentioned in clauses 11.1.7
to 11.1.11 (inclusive) or an Obligor or a Principal Subsidiary
otherwise becomes subject, in any such country or territory,
to the operation of any law relating to insolvency, bankruptcy
or liquidation; or
11.1.13 Cessation of business: the Group permanently ceases to carry
on the Energy Business; or
11.1.14 Seizure: all, or a material part, of the undertaking, assets,
rights or revenues of, or shares or other ownership interests
in, an Obligor or a Principal Subsidiary are seized,
nationalised, expropriated or compulsorily acquired by or
under the authority of any Government Entity and an Obligor or
such Principal Subsidiary has not been adequately and promptly
compensated and recompensed in respect of such action; or
11.1.15 Finance Documents: any Finance Document is not or ceases to be
legal, valid and binding, or an Obligor alleges it to have
become so; or
11.1.16 Unlawfulness: it becomes unlawful at any time for an Obligor
to perform all or any of its material obligations under any of
the Finance Documents; or
11.1.17 Repudiation: an Obligor repudiates any Finance Document to
which it is a party or does or causes or permits to be done
any act or thing evidencing an intention to repudiate such a
Finance Document; or
11.1.18 Environmental matters: any member of the Group fails to comply
with any Environmental Law or any Environmental Licence, or an
Environmental Claim is made against any member of the Group,
which in any case results in a Material Adverse Effect; or
11.1.19 Change of control: the Original Borrower ceases to be at least
50% plus one share owned by TXU Corp or an Obligor other than
the Original Borrower ceases to be a Subsidiary of the
Original Borrower (unless, within 5 Banking Days after ceasing
to be a Subsidiary of the Original Borrower, the liabilities
of that Obligor to the Finance Parties under the Finance
Documents are prepaid and cancelled in full and that Obligor
ceases to be a Borrower under this Agreement); or
50
11.1.20 Material Licence: any Material Licence is revoked, where such
revocation has a Material Adverse Effect (and, for the
avoidance of doubt, no such Material Adverse Effect shall
occur in circumstances where a Material Licence is revoked,
but a similar licence is subsequently granted to another
member of the Group); or
11.1.21 Legislative or regulatory action: any statute (or any
subordinate legislation) governing a Material Licence is
repealed or amended, and such repeal or amendment has a
Material Adverse Effect; or
11.1.22 Material Adverse Effect: there occurs a change in the
financial condition of an Obligor which has a Material Adverse
Effect; or
11.1.23 Further Events of Default: at any time prior to the Project
Wings Completion Date, there occurs an event listed at
paragraph 4 of schedule 11.
11.2 Acceleration
The Facility Agent, if so requested by the Majority Lenders, shall,
without prejudice to any other rights of the Finance Parties at any
time after the happening of an Event of Default and so long as the same
is continuing, by notice to the Original Borrower declare that:
11.2.1 the obligations of each Lender to make the Facility available
shall be terminated whereupon the Total Commitments shall be
reduced to zero forthwith; and/or
11.2.2 the Advances and all interest and fees and all other sums
payable to the Finance Parties under the Finance Documents
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;
11.2.3 declare that full cash cover for each Letter of Credit is
immediately due and payable.
11.3 Demand basis
If Advances have become due and payable on demand pursuant to clause
11.2.2, the Facility Agent, if so instructed by the Majority Lenders,
shall by written notice to the Original Borrower call for repayment of
the Facility on such date as may be specified in such notice whereupon,
the Facility shall become due and payable on the date so specified
together with all interest, ancillary fees and commitment commission
accrued and all other sums payable by the Obligors under the Finance
Documents.
51
PART 6 - PAYMENTS AND CALCULATIONS
12. PAYMENTS AND CALCULATIONS
12.1 Payments by the Obligors; no set-off or counterclaim
All payments to be made by the Obligors under the Finance Documents
shall be made in full, without any set-off or counterclaim whatsoever
and, subject as provided in clause 15, free and clear of any deductions
or withholdings, in the relevant currency in which such payment
obligations were incurred for value 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):
12.1.1 in the principal financial centre of the relevant currency; or
12.1.2 in the case of euro, in the principal financial centre of a
Participating Member State or London.
12.2 Distribution to the Lenders
Save where any Finance Document provides for a payment to be made for
the account of a particular Finance Party, in which case the Facility
Agent shall distribute the relevant payment to the relevant Finance
Party concerned, payments to be made by the Obligors under any of the
Finance Documents shall be made to the Facility Agent for the account
of all the Lenders and the Facility Agent shall forthwith distribute
such payments in like funds as are received by the Facility Agent to
the Lenders rateably in accordance with their Commitments or
Contributions, as the case may be, to each Lender's account with such
office or bank:
12.2.1 in the principal financial centre of the relevant currency; or
12.2.2 in the case of euro, in the principal financial centre of a
Participating Member State or London,
as it may notify to the Facility Agent for this purpose by not less
than 5 Banking Days' notice.
12.3 Payments by the Lenders
All sums to be advanced by the Lenders to the Obligors under the
Finance Documents shall be remitted in the currency specified in any
relevant Utilisation Notice in immediately available funds not later
than 12 noon on the relevant Utilisation Date to the account of the
Facility Agent at such bank as the Facility Agent may have notified to
the Lenders and shall be paid by the Facility Agent on such date in
like funds as are received by the Facility Agent to the account of the
relevant Obligor:
12.3.1 in the principal financial centre of the relevant currency; or
12.3.2 in the case of euro, in the principal financial centre of a
Participating Member State or London,
as it may notify to the Facility Agent for this purpose by not less
than 5 Banking Days' notice.
52
12.4 Non-Banking Days
12.4.1 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.
12.4.2 During any extension of the due date for payment of any principal under
clause 12.4.1 of this Agreement interest is payable on that principal
at the rate payable on the original due date.
12.5 Facility Agent may assume receipt
Where any sum is to be paid under a Finance Document 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. If it
proves to be the case that such payment was not made to the Facility
Agent, then 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 the date of such repayment and the
person by whom the sum was payable shall indemnify the Facility Agent
for any and all loss or expense which the Facility Agent may sustain or
incur as a consequence of such sum not having been paid on its due
date.
12.6 Bank accounts
Each Lender 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 the Finance Documents. The Facility Agent
shall maintain a control account showing the utilisation of the
Facility and other sums owing by the Obligors under such Finance
Documents and all payments in respect thereof made by the Obligors from
time to time. The relevant control account shall, in the absence of
manifest error, be conclusive as to the amount from time to time owing
by the Obligors under such Finance Documents.
12.7 Calculations
All interest and other payments of an annual nature under any of the
Finance Documents shall accrue from day to day and be calculated on the
basis of actual days elapsed and a 365 day year (or as is otherwise
London interbank market custom in respect of any relevant currency). 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.
12.8 Certificates conclusive
Any certificate of, or determination by, a Finance Party as to any rate
of interest or any other amount payable under any of the Finance
Documents shall, in the absence of manifest error, be conclusive and
binding on the Obligors and (in the case of a certificate of or
determination by the Facility Agent) on the Lenders.
53
12.9 Currency
12.9.1 Unless a Finance Document specifies that payments under it are to be
made in a different manner, the currency of each amount payable under
the Finance Documents is determined under this clause.
12.9.2 Interest is payable in the currency in which the relevant amount in
respect of which it is payable is denominated.
12.9.3 A repayment or prepayment of any principal amount is payable in the
currency in which that principal amount is denominated on its due date.
12.9.4 Amounts payable in respect of costs and expenses are payable in the
currency in which they are incurred.
12.9.5 Each other amount payable under the Finance Documents is payable in
Sterling.
12.10 Partial payments
12.10.1 If the Facility Agent receives a payment insufficient to discharge all
the amounts then due and payable by the Obligors under the Finance
Documents, the Facility Agent must apply that payment towards the
obligations of the Obligors under the Finance Documents in the
following order:
(a) first, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Facility Agent under the Finance
Documents;
(b) secondly, in or towards payment pro rata of any accrued
interest or fee due but unpaid under this Agreement;
(c) thirdly, in or towards payment pro rata of any principal
amount due but unpaid under this Agreement; and
(d) fourthly, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents.
12.10.2 The Facility Agent must, if so directed by all the Lenders, vary the
order set out in clause 12.10.1(b) to (d) above.
12.10.3 This Subclause will override any appropriation made by an Obligor.
12.11 Timing of payments
If a Finance Document does not provide for when a particular payment is
due, that payment will be due within three Business Days of demand by
the relevant Finance Party.
54
PART 7 - INDEMNITIES, ILLEGALITY, INCREASED COSTS, TAXES AND MITIGATION
13. INDEMNITIES
13.1 Miscellaneous indemnities
13.1.1 The Original Borrower shall within five Banking Days of demand
indemnify each Finance Party, without prejudice to any of their other
rights under any of the Finance Documents, against any loss sustained
or incurred by it as a consequence of:
(a) any default in payment by an Obligor of any sum due under any
of the Finance Documents when due;
(b) the occurrence of any other Event of Default;
(c) any prepayment of a Credit or part thereof being made
otherwise than on an Interest Payment Date or in accordance
with a notice of prepayment; or
(d) an Advance not being advanced for any reason (excluding any
default by the relevant Finance Party) after the Utilisation
Notice in respect thereof has been given,
including, in any such case, but not limited to, any loss or expense
sustained or incurred in (i) maintaining or funding its Contributions
or any part thereof or (ii) liquidating or re-employing deposits from
third parties acquired or contracted for to fund all or any part of its
Contributions or to fund any other amount owing to such Finance Party,
to the extent certified by such Finance Party in reasonable detail.
13.1.2 The Original Borrower must indemnify the Facility Agent against any
loss or liability incurred by the Facility Agent as a result of:
(a) investigating any event which the Facility Agent reasonably
believes to be a Potential Event of Default or an Event of
Default; or
(b) acting or relying on any notice purported to have been sent
pursuant, or in relation, to a Finance Document by a member of
the Group or a Finance Party which the Facility Agent
reasonably believes to be genuine, correct and appropriately
authorised.
13.2 Currency indemnity
13.2.1 The Original Borrower must, as an independent obligation, indemnify
each Finance Party against any loss or liability which that Finance
Party incurs as a consequence of:
(a) that Finance Party receiving an amount in respect of an
Obligor's liability under the Finance Documents; or
(b) that liability being converted into a claim, proof, judgment
or order,
in a currency other than the currency in which the amount is expressed
to be payable under the relevant Finance Document.
55
13.2.2 Unless otherwise required by law, each Obligor waives any right it may
have in any jurisdiction to pay any amount under the Finance Documents
in a currency other than that in which it is expressed to be payable.
13.3 ECB reserve requirements
The 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 Facility and are not recoverable by
such Finance Party pursuant to clause 14.2 (Increased costs).
14. UNLAWFULNESS, INCREASED COSTS
14.1 Unlawfulness
If it is or becomes after the date of this Agreement contrary to any
law or regulation for any Lender to contribute to the Facility or to
maintain its Commitment or fund its Contribution to a Credit, such
Lender shall promptly, through the Facility Agent, notify the Original
Borrower whereupon:
14.1.1 such Lender's Commitments shall be reduced to zero; and
14.1.2 each Borrower shall be obliged to prepay (without premium or
penalty, but without prejudice to clause 13) the Contribution
of such Lender to each Credit made to that Borrower either:
(a) if permitted by the relevant law or regulation, on
the next following Interest Payment Date; or
(b) if not so permitted on a future specified date not
being later than the latest date permitted by the
relevant law or regulation. Any prepayment pursuant
to this clause 14.1 shall be made together with all
amounts referred to in clause 6.6.
14.2 Increased costs
If, after the date of this Agreement, the result of any change in, or
in the interpretation or application of, or the introduction of, any
law or any regulation (with which, if not having the force of law, the
relevant Lender or, as the case may be, its holding company habitually
complies), including (without limitation) those relating to Taxation,
capital adequacy, liquidity, reserve assets, cash ratio deposits and
special deposits, is to:
14.2.1 subject any Lender to Taxes or change the basis of Taxation of
any Lender with respect to any payment under any Finance
Document (other than Taxes or Taxation on the overall net
income, profits or gains of such Lender imposed in the
jurisdiction in which its principal or lending office under
this Agreement is located); and/or
14.2.2 increase the cost to, or impose an additional cost on, any
Lender or its holding company in making or keeping available
all or part of such Lender's Commitments or maintaining or
funding all or part of such Lender's Contributions; and/or
56
14.2.3 reduce the amount payable or the effective return to any
Lender under the Finance Documents; and/or
14.2.4 reduce any Lender'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 to such
Lender's obligations under the Finance Documents; and/or
14.2.5 require any Lender 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 Lender under the Finance
Documents; and/or
14.2.6 require any Lender 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 Lender's
Commitments or Contributions from its capital for regulatory
purposes,
then and in each such case (but subject to clause 14.3):
(a) such Lender shall notify the Original Borrower through the
Facility Agent in writing of such event promptly upon its
becoming aware of the same; and
(b) the Original Borrower shall within 5 Banking Days of demand,
made at any time whether or not such Lender's Contribution to
the Facility has been repaid, pay to the Facility Agent for
the account of such Lender the amount which such Lender
specifies (in a certificate setting forth the basis of the
computation of such amount but not including any matters which
such Lender or its holding company regards as confidential) is
required to compensate such Lender and/or its holding company
for such liability to Taxes, increased or additional cost,
reduction, payment, forgone return or loss.
For the purposes of this clause 14.2 each Lender may in good faith and
acting reasonably allocate or spread costs and/or losses among its
assets and liabilities (or any class thereof) on such basis as it
considers appropriate.
For the purposes of this clause 14.2 and clause 16 "holding company"
means, in relation to a Lender, the company or entity (if any) within
the consolidated supervision of which such Lender is included.
14.3 Exceptions
Nothing in clause 14.2 shall entitle any Lender 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:
14.3.1 is taken into account in calculating the Additional Cost; or
14.3.2 is (or would be but for an exclusion to that clause) the
subject of an additional payment under clause 15.1; or
14.3.3 arises as a consequence of (or of any law or regulation
implementing):
57
(a) 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
(b) any applicable directive of the European Union,
(in each case) unless 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 of this Agreement.
For the purposes of clause 14.3.3 the term "applicable
directive" means (exclusively) each of the Own Funds Directive
(89/299/EEC of 17th April 1989) and the Solvency Ratio
Directive (89/647/EEC of 18th December 1989); or
14.3.4 arises as a result of the gross negligence or wilful default
of such Lender.
15. TAXES
15.1 Grossing-up for Taxes
If at any time an 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 such Obligor in respect of such
payment shall, subject to clause 15.5, be increased to the extent
necessary to ensure that, after the making of such deduction or
withholding, 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 would
have received had no such deduction or withholding been required to be
made, and the Borrower shall indemnify each Finance Party against any
losses or costs incurred by any of them by reason of any failure of an
Obligor to make any such deduction or withholding or by reason of any
increased payment not being made on the due date for such payment. The
Borrower shall promptly upon request 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.
15.2 Claw-back of Tax benefit
If following any such deduction or withholding as is referred to in
clause 15.1 any Finance Party shall receive or be granted, use and
fully and finally retain a credit against or remission for any Taxes
payable by it, such Finance Party shall, subject to the Borrower having
made any increased payment in accordance with clause 15.1 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 Borrower 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 Borrower as aforesaid. Such reimbursement shall
be made promptly after such Finance Party certifying that the amount of
such credit or remission has been received and used by it. Nothing
contained in this Agreement shall oblige any Finance Party to rearrange
its tax affairs or to disclose any information regarding its tax
affairs and computations.
58
Without prejudice to the generality of the foregoing, the Borrower
shall not, by virtue of this clause 15.2, be entitled to enquire about
any Finance Party's tax affairs.
15.3 No Taxes
On the assumption that each Original Lender is a U.K. Lender, the
Original Borrower represents to the Finance Parties that, as at the
date of this Agreement, no Taxes are imposed by withholding or
otherwise on any payment to be made by the Obligors under any of the
Finance Documents, or are imposed on or by virtue of the execution or
delivery by the Borrower of any of the Finance Documents or any
document or instrument to be executed or delivered under the Finance
Documents.
15.4 Tax Indemnity
Without prejudice to clause 15.1, if any Finance Party is required to
make any payment of or on account of tax on or in relation to any sum
received or receivable under any Finance Document (including any sum
deemed for purposes of tax to be received or receivable by such Finance
Party whether or not actually received or receivable) or if any
liability in respect of any such payment is asserted, imposed, levied
or assessed against any Finance Party, the relevant Obligor or
otherwise the Borrower shall, upon demand by the Facility Agent,
promptly indemnify the Finance Party which suffers a loss or liability
as a result against such payment or liability together with any
interest, penalties, costs and expenses payable or incurred in
connection therewith.
15.5 Qualifying Lender
15.5.1 If:
(a) any Lender is not or ceases to be a Qualifying Lender; and
(b) as a result an Obligor incorporated in the United Kingdom is
required to deduct or withhold United Kingdom income tax in
respect of payments of interest to be made by such Obligor to
that Lender under any Finance Document, or is required to make
an indemnity payment or a greater indemnity payment under
clause 15.1 or 14.2,
then such Obligor shall (as the case may be) not be liable to pay under
clause 15.1 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
Lender were a Qualifying Lender, nor shall it be liable to make an
indemnity payment or a greater indemnity payment under clause 15.1 or,
as the case may be, clause 14.2 than would have been required (if any)
if such Lender had been or had not ceased to be a Qualifying Lender.
15.5.2 Clause 15.5.1 shall not apply, and such Obligor shall be obliged to
comply with its obligations under clause 15.1, or as the case may be
14.2, if on or after the date of this Agreement:
(a) 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 result thereof the Lender is not or
ceases to be a Qualifying Lender; or
59
(b) the Lender referred to in clause 15.5.1 has transferred its
facility office in respect of the Facility outside the United
Kingdom or has become a Lender with a facility office outside
the United Kingdom in respect of the Facility, in each case,
with the consent of the Original Borrower.
15.5.3 A person intending to make a claim pursuant to clause 15.1 shall,
promptly after such person becomes aware of the circumstances giving
rise to such claim and the amount of such claim, deliver to the
relevant Obligor 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.
15.5.4 Each Lender confirms that, as at the date of this Agreement, it is a
Qualifying Lender. If at any time after the date of this Agreement any
Lender is aware that it is not or will cease to be a Qualifying Lender
(for whatever reason), it shall promptly notify the Borrower in
writing.
15.5.5 Provided it has received all necessary information from each Obligor to
do so, a Treaty Lender will, promptly after it becomes a party to this
Agreement, submit such claim to the appropriate authorities (together
with such forms, papers, other documents and/or evidence as necessary)
as may be required to be submitted by that Lender for the Obligors to
make payment of interest to such Treaty Lender free of withholding or
deduction on account of United Kingdom Tax.
16. MITIGATION
If, in respect of any Lender, circumstances arise which would, or would
upon the giving of notice, result in:
(a) the reduction of any Lender's Commitment to zero or a Borrower
being required to prepay any Lender's Contribution to the
Facility pursuant to clause 14.1; or
(b) the Original Borrower being required to make a payment to any
Lender to compensate such Lender or its holding company for a
liability to Taxes, increased or additional cost, reduction,
payment, forgone return or loss pursuant to clause 14.2; or
(c) an Obligor being required to make an increased payment to any
Lender pursuant to clause 15.1;
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Obligors under the provisions referred to above such
Lender shall, in consultation with the Facility Agent, endeavour to
take such reasonable steps (and/or, in the case of clause 14.2 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 (but not including (in the case of such Lender) the
transfer of its rights and obligations under any Finance Document to
another bank or financial institution) unless the taking of such steps
could reasonably be expected (in the opinion of such Lender) to be
prejudicial to such Lender (or, as the case may be, its holding
company) or be in conflict with such Lender's (or, as the case may be,
its holding company's) general banking policies or involve such Lender
(or, as the case may be, its holding company) in expense for which it
is not indemnified by the Original Borrower or a materially increased
administrative burden.
60
PART 8 - ADMINISTRATIVE PARTY AND INTRA-LENDER MATTERS
17. THE ADMINISTRATIVE PARTIES
17.1 Appointment and duties of the Facility Agent
17.1.1 Each Finance Party (other than the Facility Agent) irrevocably appoints
the Facility Agent to act as its agent under the Finance Documents.
17.1.2 Each Finance Party irrevocably authorises the Facility Agent to:
(a) perform the duties and to exercise the rights, powers and
discretions that are specifically given to it under the
Finance Documents, together with any other incidental rights,
powers and discretions; and
(b) execute each Finance Document expressed to be executed by the
Facility Agent.
17.1.3 The Facility Agent has only those duties which are expressly specified
in the Finance Documents. Those duties are solely of a mechanical and
administrative nature.
17.2 Role of the Arrangers
Except as specifically provided in the Finance Documents, no Arranger
has any obligations of any kind to any other Party in connection with
any Finance Document.
17.3 No fiduciary duties
Except as specifically provided in a Finance Document, nothing in the
Finance Documents makes an Administrative Party a trustee or fiduciary
for any other Party or any other person. No Administrative Party need
hold in trust any moneys paid to it for a Party or be liable to account
for interest on those moneys.
17.4 Individual position of an Administrative Party
17.4.1 If it is also a Lender, each Administrative Party has the same rights
and powers under the Finance Documents as any other Lender and may
exercise those rights and powers as though it were not an
Administrative Party.
17.4.2 Each Administrative Party may:
(a) carry on any business with any Obligor or its related entities
(including acting as an agent or a trustee for any other
financing); and
(b) retain any profits or remuneration it receives under the
Finance Documents or in relation to any other business it
carries on with any Obligor or its related entities.
17.5 Reliance
The Facility Agent may:
61
17.5.1 rely on any notice or document believed by it to be genuine
and correct and to have been signed by, or with the authority
of, the proper person;
17.5.2 rely on any statement made by any person regarding any matters
which may reasonably be assumed to be within his knowledge or
within his power to verify;
17.5.3 engage, pay for and rely on professional advisers selected by
it (including those representing a Party other than the
Facility Agent); and
17.5.4 act under the Finance Documents through its personnel and
agents.
17.6 Majority Lenders' instructions
17.6.1 The Facility Agent is fully protected if it acts on the instructions of
the Majority Lenders in the exercise of any right, power or discretion
or any matter not expressly provided for in the Finance Documents. Any
such instructions given by the Majority Lenders will be binding on all
the Lenders. In the absence of instructions, the Facility Agent may act
as it considers to be in the best interests of all the Lenders.
17.6.2 The Facility Agent is not authorised to act on behalf of a Lender
(without first obtaining that Lender's consent) in any legal or
arbitration proceedings in connection with any Finance Document.
17.6.3 The Facility Agent may require the receipt of security satisfactory to
it, whether by way of payment in advance or otherwise, against any
liability or loss which it may incur in complying with the instructions
of the Majority Lenders.
17.7 Responsibility
17.7.1 No Administrative Party is responsible to any other Finance Party for
the adequacy, accuracy or completeness of:
(a) any Finance Document or any other document; or
(b) any statement or information (whether written or oral) made in
or supplied in connection with any Finance Document.
17.7.2 Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance
Document, each Lender confirms that it:
(a) has made, and will continue to make, its own independent
appraisal of all risks arising under or in connection with the
Finance Documents (including the financial condition and
affairs of each Obligor and its related entities and the
nature and extent of any recourse against any Party or its
assets); and
(b) has not relied exclusively on any information provided to it
by any Administrative Party in connection with any Finance
Document.
62
17.8 Exclusion of liability
17.8.1 The Facility Agent is not liable to any other Finance Party for any
action taken or not taken by it in connection with any Finance
Document, unless directly caused by its gross negligence or wilful
misconduct.
17.8.2 No Party may take any proceedings against any officer, employee or
agent of the Facility Agent in respect of any claim it might have
against the Facility Agent or in respect of any act or omission of any
kind by that officer, employee or agent in connection with any Finance
Document. Any officer, employee or agent of the Facility Agent may rely
on this Subclause and enforce its terms under the Contracts (Rights of
Third Parties) ▇▇▇ ▇▇▇▇.
17.9 Default
17.9.1 The Facility Agent is not obliged to monitor or enquire whether a
Default has occurred. The Facility Agent is not deemed to have
knowledge of the occurrence of a Default.
17.9.2 If the Facility Agent:
(a) receives notice from a Party referring to this Agreement,
describing a Default and stating that the event is a Default;
or
(b) is aware of the non-payment of any principal or interest or
any fee payable to a Lender under this Agreement,
it must promptly notify the Lenders.
17.10 Information
17.10.1 The Facility Agent must promptly forward to the person concerned the
original or a copy of any document which is delivered to the Facility
Agent by a Party for that person.
17.10.2 Except where a Finance Document specifically provides otherwise, the
Facility Agent is not obliged to review or check the adequacy, accuracy
or completeness of any document it forwards to another Party.
17.10.3 Except as provided above, the Facility Agent has no duty:
(a) either initially or on a continuing basis to provide any
Lender with any credit or other information concerning the
risks arising under or in connection with the Finance
Documents (including any information relating to the financial
condition or affairs of any Obligor or its related entities or
the nature or extent of recourse against any Party or its
assets) whether coming into its possession before, on or after
the date of this Agreement; or
(b) unless specifically requested to do so by a Lender in
accordance with a Finance Document, to request any certificate
or other document from any Obligor.
17.10.4 In acting as the Facility Agent, the agency division of the Facility
Agent is treated as a separate entity from its other divisions and
departments. Any information acquired by the Facility Agent which, in
its opinion, is acquired by it otherwise than in its capacity as the
63
Facility Agent may be treated as confidential by the Facility Agent and
will not be treated as information possessed by the Facility Agent in
its capacity as such.
17.10.5 Each Obligor irrevocably authorises the Facility Agent to disclose to
the other Finance Parties any information which, in its opinion, is
received by it in its capacity as the Facility Agent.
17.11 Indemnities
17.11.1 Without limiting the liability of any Obligor under the Finance
Documents, each Lender must indemnify the Facility Agent for that
Lender's Pro Rata Share of any loss or liability incurred by the
Facility Agent in acting as the Facility Agent, except to the extent
that the loss or liability is caused by the Facility Agent's gross
negligence or wilful misconduct.
17.11.2 The Facility Agent may deduct from any amount received by it for a
Lender any amount due to the Facility Agent from that Lender under a
Finance Document but unpaid.
17.12 Compliance
The Facility Agent may refrain from doing anything (including
disclosing any information) which might, in its opinion, constitute a
breach of any law or regulation or be otherwise actionable at the suit
of any person, and may do anything which, in its opinion, is necessary
or desirable to comply with any law or regulation.
17.13 Resignation of the Facility Agent
17.13.1 The Facility Agent may resign and appoint any of its Affiliates as
successor Facility Agent by giving notice to the Lenders and the
Original Borrower.
17.13.2 Alternatively, the Facility Agent may resign by giving notice to the
Lenders and the Original Borrower, in which case the Majority Lenders
may appoint a successor Facility Agent.
17.13.3 If no successor Facility Agent has been appointed under paragraph (b)
above within 30 days after notice of resignation was given, the
Facility Agent may appoint a successor Facility Agent.
17.13.4 The person(s) appointing a successor Facility Agent must, if
practicable, consult with the Original Borrower prior to the
appointment. Any successor Facility Agent must have an office in the
U.K.
17.13.5 The resignation of the Facility Agent and the appointment of any
successor Facility Agent will both become effective only when the
successor Facility Agent notifies all the Parties that it accepts its
appointment. On giving the notification, the successor Facility Agent
will succeed to the position of the Facility Agent and the term
"Facility Agent" will mean the successor Facility Agent.
17.13.6 The retiring Facility Agent must, at its own cost, make available to
the successor Facility Agent such documents and records and provide
such assistance as the successor Facility Agent may reasonably request
for the purposes of performing its functions as the Facility Agent
under the Finance Documents.
64
17.13.7 Upon its resignation becoming effective, this clause will continue to
benefit the retiring Facility Agent in respect of any action taken or
not taken by it in connection with the Finance Documents while it was
the Facility Agent, and, subject to paragraph (f) above, it will have
no further obligations under any Finance Document.
17.13.8 The Majority Lenders may, by notice to the Facility Agent, require it
to resign under paragraph (b) above.
17.14 Relationship with Lenders
17.14.1 The Facility Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and as acting through its facility
office(s) until it has received not less than five Business Days' prior
notice from that Lender to the contrary.
17.14.2 The Facility Agent may at any time, and must if requested to do so by
the Majority Lenders, convene a meeting of the Lenders.
17.14.3 The Facility Agent must keep a register of all the Parties and supply
any other Party with a copy of the register on request. The register
will include each Lender's facility office(s) and contact details for
the purposes of this Agreement.
17.15 Facility Agent's management time
If the Facility Agent requires, any amount payable to the Facility
Agent by any Party under any indemnity or in respect of any costs or
expenses incurred by the Facility Agent under the Finance Documents
after the date of this Agreement (and, in the case of an Obligor,
following a Potential Event of Default or Event of Default) may include
the cost of using its management time or other resources and will be
calculated on the basis of such reasonable daily or hourly rates as the
Facility Agent may notify to the relevant Party. This is in addition to
any amount in respect of fees or expenses paid or payable to the
Facility Agent under any other term of the Finance Documents.
17.16 Notice period
Where this Agreement specifies a minimum period of notice to be given
to the Facility Agent, the Facility Agent may, at its discretion,
accept a shorter notice period.
18. PRO RATA PAYMENTS
18.1 If at any time any Lender (the "Recovering Bank") receives or recovers
any amount owing to it by the Obligors under this Agreement by direct
payment, set-off or in any manner other than by payment through the
Facility Agent pursuant to clause 12 (not being a payment received from
a Substitute or a sub-participant in the Recovering Bank's Contribution
to the Facility or any other payment of an amount due to the Recovering
Bank for its sole account pursuant to this Agreement) the Recovering
Bank shall, within 2 Banking Days of such receipt or recovery (a
"Receipt") notify the Facility Agent of the amount of the Receipt. If
the Receipt exceeds the amount which the Recovering Bank would have
received if the Receipt had been received by the Facility Agent and
distributed pursuant to clause 12, as the case may be, then:
65
(a) within 2 Banking Days of demand by the Facility Agent, the
Recovering Bank shall pay to the Facility Agent an amount
equal (or equivalent) to such excess;
(b) the Facility Agent shall treat the excess amount so paid by
the Recovering Bank as if it were a payment made by an Obligor
and shall distribute the same to the Lenders (other than the
Recovering Bank) in accordance with clause 12; and
(c) 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 Lenders shall, to the extent of the amount so
re-distributed to them, and subject to clause 18.2, be treated
as discharged.
18.2 If any part of a Receipt subsequently has to be wholly or partly
refunded by the Recovering Bank (whether to a liquidator or otherwise)
each Lender to which any part of such Receipt was so re-distributed
shall on request from the Recovering Bank repay to such Recovering Bank
such Lender's pro rata share of the amount which has to be refunded by
the Recovering Bank and each such Lender's rights against the Obligors
in respect of such amount shall be reinstated.
18.3 Each Lender 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 18.
18.4 Notwithstanding the foregoing provisions of this clause 18 no
Recovering Bank shall be obliged to share any Receipt:
18.4.1 to the extent that it would not, after the payment, have a
valid claim against the Obligors in respect of the amount
shared; or
18.4.2 received or recovered 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.
19. AMENDMENTS AND WAIVERS
19.1 Procedure
19.1.1 Except as provided in this clause 19, any term of the Finance Documents
may be amended or waived with the agreement of the Original Borrower
and the Majority Lenders. The Facility Agent may effect, on behalf of
any Finance Party, an amendment or waiver allowed under this clause.
19.1.2 The Facility Agent must promptly notify the other Parties of any
amendment or waiver effected by it under clause 19.1.1 above. Any such
amendment or waiver is binding on all the Parties.
19.2 Exceptions
19.2.1 An amendment or waiver which relates to:
(a) the definition of "Majority Lenders" in clause 1.1
(Definitions);
66
(b) an extension of the date of payment of any amount to a Lender
under the Finance Documents;
(c) a reduction in the amount of any payment of principal,
interest, fee or other amount payable to a Lender under the
Finance Documents;
(d) an increase in, or an extension of, a Commitment;
(e) a release of an Obligor;
(f) a term of a Finance Document which expressly requires the
consent of each Lender;
(g) the right of a Lender to assign or transfer its rights or
obligations under the Finance Documents; or
(h) this clause,
may only be made with the consent of all the Lenders.
19.2.2 An amendment or waiver which relates to the rights or obligations of an
Administrative Party may only be made with the consent of that
Administrative Party. An amendment or waiver which relates only to the
rights or obligations of an Administrative Party and has no effect on
the rights or obligations of any other Party may be made without the
consent of any Party other than the relevant Administrative Party.
19.3 Change of currency
If a change in any currency of a country occurs (including where there
is more than one currency or currency unit recognised at the same time
as the lawful currency of a country), the Finance Documents will be
amended to the extent the Facility Agent (acting reasonably and after
consultation with the Original Borrower) determines is necessary to
reflect the change.
20. RIGHTS OF FINANCE PARTIES
20.1 Obligations several
The obligations of each Lender under this Agreement are several; the
failure of any Lender to perform such obligations shall not relieve any
other Finance Party or the Obligors of any of their respective
obligations or liabilities under the Finance Documents nor shall any
Finance Party be responsible for the obligations of any other Finance
Party under the Finance Documents.
20.2 Interests several
Notwithstanding any other term of the Finance Documents the interests
of the Finance Parties are several and the amount due to each of the
Finance Parties is a separate and independent debt. Without prejudice
to any other provision of the Finance Documents each of the Finance
Parties shall have the right to protect and enforce its rights arising
out of 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.
67
PART 9 - SET-OFF AND ASSIGNMENT
21. SET-OFF
Each Obligor agrees that each Finance Party may at any time
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 indebtedness of such Obligor to such Finance Party
which is expressed to be due and payable under the Finance Documents.
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 21. Each
Finance Party shall notify the Facility Agent promptly upon the
exercise or purported exercise of any right of set-off in relation to
an Obligor, giving full details in relation thereto and the Facility
Agent shall inform the other Finance Parties and the Borrower.
22. ASSIGNMENT AND ACCESSION
22.1 Assignment
22.1.1 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.
22.1.2 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.
22.2 Accession
The Original Borrower may, at any time during the Finance Period,
request, by giving notice to the Facility Agent, that any Group member
be designated as a Borrower under the Facility. Any such notice shall
be in writing and signed on behalf of the Borrower and on behalf of the
Group member concerned and shall take effect in accordance with its
terms on the condition that:
22.2.1 each of the Facility Agent and, in the case of a Group member
incorporated outside England and Wales, all the Lenders has
consented to (such consent, in the case of a Subsidiary
incorporated in England and Wales, not to be unreasonably
withheld or delayed) to the relevant Group member being so
designated as a Borrower under the Facility;
68
22.2.2 the Acceding Borrower shall have entered into an accession
certificate substantially in the form of schedule 8 with the
Facility Agent, which the Facility Agent shall execute on
behalf of all the parties to this Agreement; and
22.2.3 the Acceding Borrower, before entering into such an Accession
Certificate, shall have fulfilled all conditions precedent, as
notified to the Borrower by the Facility Agent, to the
satisfaction of the Facility Agent.
22.3 Assumption of rights and obligations
Upon satisfaction of such conditions the Acceding Borrower shall become
a party to this Agreement in the capacity of an Obligor and shall
assume all the obligations and rights of an Obligor under this
Agreement.
69
PART 10 - SUBSTITUTION, ADMINISTRATION AND OTHER MATTERS
23. SUBSTITUTION AND LENDING OFFICES
23.1 Substitution
23.1.1 Subject to clause 23.1.2, on or after the date of this Agreement, each
Lender (an "Existing Bank") may transfer, by way of novation, all or
any part of its rights, benefits and/or obligations under this
Agreement to another Qualifying Lender (a "Substitute"). Any such
novation shall be effected upon not less than 5 Banking Days' (or such
lesser period as may be agreed by the Facility Agent) prior notice by
delivery to the Facility Agent (with a copy to the Borrower) of a duly
completed substitution certificate substantially in the form of
schedule 3 (the "Substitution Certificate") duly executed by the
Existing Bank and the Substitute, and shall be in respect of amounts of
at least(pound)10 million (or, if greater, integral multiples
of(pound)5 million). On the Effective Date (as specified and defined in
a Substitution Certificate so executed and delivered), to the extent
only that the Commitment and Contributions of the Existing Bank are
expressed in the relevant Substitution Certificate to be the subject of
the novation in favour of the Substitute effected pursuant to this
clause 23.1, by virtue of the counter-signature of the Substitution
Certificate by the Facility Agent (for itself and the other parties to
this Agreement):
(a) the existing parties to this Agreement and the Existing Bank
shall be released from their respective obligations towards
one another under this Agreement ("discharged obligations")
and their respective rights against one another under this
Agreement ("discharged rights") shall be cancelled;
(b) the Substitute party to the relevant Substitution Certificate
and the existing parties to this Agreement (other than such
Existing Bank) 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; and
(c) the Substitute party to the relevant Substitution Certificate
and the existing parties to this Agreement (other than such
Existing Bank) 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, on such Effective Date, the Substitute shall (unless such novation
is part of the general syndication process carried out by the Joint
Lead Arrangers) pay to the Facility Agent for its own account a fee of
(pound)1,000. The Facility Agent shall promptly notify the other
Lenders of the receipt by it of any Substitution Certificate and shall
promptly deliver a copy of such Substitution Certificate to the
Borrower.
23.1.2(a) The consent of the Original Borrower (not to be unreasonably withheld
or delayed) is required for any transfer by way of novation under
clause 23.1.1 above except:
(i) if the Substitute is an Affiliate of the relevant
Existing Bank with a substantially similar credit
rating to that Existing Bank;
(ii) if the Facility Agent has served notice on the
Original Borrower under clause 11.2; and
70
(iii) on transfers by novation under the Syndication
Agreement.
(b) The consent of the LC Issuing Bank is required for any
transfer by way of novation under clause 23.1.1 above.
23.2 Reliance on Substitution Certificate
The Facility Agent and the Borrower shall be fully entitled to rely on
any Substitution Certificate delivered to the Facility Agent in
accordance with the foregoing provisions of this clause 23 which is
complete and regular on its face as regards its contents and
purportedly signed on behalf of the relevant Existing Bank and the
Substitute and none of the Facility Agent nor the Borrower 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.
23.3 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 23.1 without any further consent of, or consultation
with, such party.
23.4 Construction of certain references
If any Lender novates all or any part of its rights, benefits and
obligations as provided in clause 23.1, all relevant references in this
Agreement to such Lender shall thereafter be construed as a reference
to such Lender and/or its Substitute to the extent of their respective
interests.
23.5 Lending offices
Each Lender shall lend through its office at the address notified to
the other Parties on or before the date of this Agreement or, as the
case may be, in any relevant Substitution Certificate or through any
other office of such Lender selected from time to time by such Lender
through which such Lender wishes to lend for the purposes of this
Agreement. If the office through which a Lender is lending is changed
pursuant to this clause 23.5, such Lender shall notify the Facility
Agent promptly of such change.
23.6 Disclosure of information
23.6.1 Each Finance Party must keep confidential any information supplied to
it by or on behalf of any Obligor in connection with the Finance
Documents. However, a Finance Party is entitled to disclose
information:
(a) which is publicly available, other than as a result of a
breach by that Finance Party of this clause;
(b) in connection with any legal or arbitration proceedings;
(c) if required to do so under any law or regulation;
(d) to a governmental, banking, taxation or other regulatory
authority;
71
(e) to its professional advisers;
(f) to the extent allowed under clause 23.6.2 below; or
(g) with the agreement of the relevant Obligor.
23.6.2 A Finance Party may disclose to an Affiliate or any person with whom it
may enter, or has entered into, any kind of transfer, participation or
other agreement in relation to this Agreement (a "participant"):
(a) a copy of any Finance Document; and
(b) any information which that Finance Party has acquired under or
in connection with any Finance Document.
However, before a participant may receive any confidential information,
it must agree with the relevant Finance Party to keep that information
confidential on the terms of clause 23.6.1 above.
23.6.3 This clause supersedes any previous confidentiality undertaking given
by a Finance Party in connection with this Agreement prior to it
becoming a Party.
23.7 Increased costs, etc
If, after the Arrangers have given notice to the Original Borrower that
general syndication of the Facility has been successfully completed,
any Lender transfers all or any part of its rights, benefits and/or
obligations under this Agreement pursuant to clause 23.1, and on the
Effective Date (as defined in the Substitution Certificate for such
transfer) any amount would by reason of such transfer be payable by an
Obligor to the relevant substitute under clauses 14.2 or 15.1, the
relevant Obligor shall not be obliged to make such payment if and to
the extent it exceeds the payment that Obligor would have been obliged
to make had such transfer not taken place.
24. CHANGE OF REFERENCE BANKS
If:
(a) the whole of the Contributions of any Reference Bank are
prepaid;
(b) the Commitment of any Reference Bank is reduced to zero in
accordance with clause 6.3, 6.4 or 13.1;
(c) a Reference Bank novates the whole of its rights and
obligations (if any) as a Lender under this Agreement; or
(d) a Reference Bank ceases to provide quotations to the Facility
Agent upon request for the purposes of determining LIBOR (or
EURIBOR) (where such quotations are required having regard to
the definition of LIBOR (or EURIBOR) in clause 1.1),
then the Facility Agent may, acting on the instructions of the Majority
Lenders and the Borrower, terminate the appointment of such Reference
Bank and appoint another Lender acceptable to the Original Borrower to
replace such Reference Bank.
72
25. NOTICES AND OTHER MATTERS
25.1 address for notice
Every notice, request, demand or other communication (each a
"Communication") under the Finance Documents shall:
25.1.1 be in writing delivered personally or by first-class prepaid
letter (airmail if available) or telefax;
25.1.2 be deemed to have been received, subject as otherwise provided
in the Finance Documents, in the case of any Communication to
the Facility Agent, when actually received at its address or
telefax number (marked for the attention of the person
specified below or as otherwise notified to the other parties
as provided below) for the time being under this Agreement and
as regards any Communication to any other party to this
Agreement, in the case of a letter, when delivered personally
or 3 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
business day); and
25.1.3 be sent:
(a) to the Original Borrower (for itself and any other
Obligors) at:
TXU Europe Limited
Wherstead Park
Wherstead
Ipswich
Suffolk
Telefax: 01473 554886
Attention: Group Finance Director
(b) to the Facility Agent at:
Chase Manhattan International Limited
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telefax: 020 7777 2360
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Agency Loans
(c) to the Issuing Bank at:
The Royal Bank of Scotland plc
▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telefax: 020 7615 0106
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Associate Director
73
(d) to each Lender at its address or telefax number
notified to the Facility Agent on or before the date
it becomes party to this Agreement;
or to such other address or telefax number as is notified by
the Borrower or a Finance Party, as the case may be, to the
other parties to the Finance Documents.
25.2 Notice to Facility Agent
Every notice, request, demand or other communication under the Finance
Documents (except as otherwise provided in the Finance Documents):
25.2.1 to be given by an Obligor to any other party shall be given to
the Facility Agent for onward transmission as appropriate; and
25.2.2 to be given by any Finance Party to an Obligor shall be given
by the Facility Agent to the Original Borrower.
25.3 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 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 the Finance
Documents are cumulative and are not exclusive of any remedies provided
by law.
25.4 English translations
All certificates, instruments and other documents to be delivered under
or supplied in connection with the Finance Documents 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. MISCELLANEOUS
26.1 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.
26.2 Third party rights
Except as expressly permitted under this Agreement no term of this
Agreement is enforceable under the Contracts (Rights of Third Parties)
▇▇▇ ▇▇▇▇ by a person who is not a party to this Agreement.
26.3 Severability
If a term of a Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
74
(a) the legality, validity or enforceability in that jurisdiction
of any other term of the Finance Documents; or
(b) the legality, validity or enforceability in other
jurisdictions of that or any other term of the Finance
Documents.
27. GOVERNING LAW
This Agreement shall be governed by English law.
28. ENFORCEMENT
28.1 Jurisdiction
28.1.1 The English courts have exclusive jurisdiction to settle any dispute in
connection with any Finance Document.
28.1.2 The English courts are the most appropriate and convenient courts to
settle any such dispute and each Obligor waives objection to those
courts on the grounds of inconvenient forum or otherwise in relation to
proceedings in connection with any Finance Document.
28.1.3 This clause is for the benefit of the Finance Parties only. To the
extent allowed by law, a Finance Party may take:
(a) proceedings in any other court; and
(b) concurrent proceedings in any number of jurisdictions.
29. WAIVER OF TRIAL BY JURY
EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION IN CONNECTION WITH ANY FINANCE DOCUMENT OR ANY
TRANSACTION CONTEMPLATED BY ANY FINANCE DOCUMENT. THIS AGREEMENT MAY BE
FILED AS A WRITTEN CONSENT TO TRIAL BY COURT.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to
be duly executed on the date first above written.
75
SCHEDULE 1
THE LENDERS AND THEIR COMMITMENTS
Lender Commitment (pound)
------ ------------------
Barclays Bank PLC 225,000,000
Citibank, N.A. 225,000,000
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank 225,000,000
The Royal Bank of Scotland plc 225,000,000
Total 900,000,000
76
SCHEDULE 2
CALCULATION OF ADDITIONAL COST
1. General
The Additional Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with:
(a) the requirements of the Bank of England and/or the Financial
Services Authority (or, in either case, any other authority
which replaces all or any of its functions); or
(b) the requirements of the European Central Bank.
2. Calculation - General
On the first day of each Term (or as soon as possible thereafter) the
Facility Agent shall calculate, as a percentage rate, a rate (the
"Additional Cost Rate") for each Lender, in accordance with the
paragraphs set out below. The Additional Cost will be calculated by the
Facility Agent as the average of the Reference Banks' Additional Cost
Rates and will be expressed as a percentage rate per annum.
3. Calculation - formula
(a) The Additional Cost Rate for a Reference Bank will be calculated by the
Facility Agent as follows:
(i) in relation to an Advance in Sterling:
AB+C(B-D)+E*0.01
---------------- per cent.per annum
100-(A+C)
(ii) in relation to an Advance in any currency other than Sterling:
E*0.01
------ per cent.per annum
300
where on the day of application of the formula:
A is the percentage of eligible liabilities (in excess of any
stated minimum) which the Bank of England requires that
Reference Bank to hold on a non-interest-bearing deposit
account with the Bank of England to comply with cash ratio
requirements;
B is LIBOR for that Term;
C is the percentage (if any) of eligible liabilities which the
Bank of England requires that that Reference Bank to place as
a special deposit with the Bank of England;
D is the interest rate per annum allowed by the Bank of England
on a special deposit; and
77
E is the rate of charge payable by that Reference Bank to the
Financial Services Authority under the fees regulations (but,
for this purpose, ignoring any minimum fee required under the
fees regulations) and expressed in pounds per (pound)1 million
of the fee base of that Reference Bank.
(b) For the purposes of this paragraph 2:
(i) "eligible liabilities" and "special deposit" have the meanings
given to them from time to time under or pursuant to the Bank
of England Act 1998 or (as may be appropriate) by the Bank of
England;
(ii) "fee base" has the meaning given to it in, and will be
calculated in accordance with, the fees regulations; and
(iii) "fees regulations" means The Financial Services Banking
Supervision (Fees) Regulations 2001 or such other law or
regulation as may be in force from time to time in respect of
the payment of fees for banking supervision.
(c) (i) In the application of the formula, A, B, C and D are included
as figures and not as percentages, e.g. if A = 0.5% and
B = 15%, AB is calculated as 0.5 x 15. A negative result
obtained by subtracting D from B is taken as zero.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded to four decimal places.
(d) (i) Each Reference Bank must supply to the Facility Agent the
information required by it to make a calculation of the
Additional Cost Rate for that Reference Bank. In particular,
but without limitation, each Reference Bank shall supply the
following information in writing on or prior to the date on
which it becomes a Reference Bank:
(A) its jurisdiction of incorporation and the
jurisdiction of its facility office; and
(B) any other information that the Facility Agent may
reasonably require for such purpose.
Each Reference Bank shall promptly notify the Facility Agent
in writing of any change to the information provided by it
pursuant to this paragraph. The Facility Agent may assume that
this information is correct in all respects.
(ii) The figures or rates of charge of each Lender for the purpose
of A, C and E above shall be determined by the Facility Agent
based upon the information supplied to it pursuant to
sub-paragraph (i) above and on the assumption that, unless a
Reference Bank notifies the Facility Agent to the contrary,
each Reference Bank's obligations in respect of cash ratio
deposits, special deposits and the fees regulations are the
same as those of a typical bank from its jurisdiction of
incorporation with a facility office in the same jurisdiction
as its facility office.
(iii) The Facility Agent has no liability to any Party if its
calculation over or under compensates any Lender.
78
(iv) The Facility Agent shall distribute the additional amounts
received as a result of the Additional Cost to the Lenders on
the basis of the Additional Cost Rate for the Reference Banks
based on the information provided by the Reference Banks under
sub-paragraph d(i) above.
(v) Any determination by the Facility Agent pursuant to this schedule in
relation to a formula, the Additional Cost, an Additional Cost Rate or
any amount payable to a Lender shall, in the absence of manifest error,
be conclusive and binding on all Parties.
4. Changes
The Facility Agent may from time to time, after consultation with the
Original Borrower and the Lenders, determine and notify all the Parties
of any amendment to this Schedule which is required to comply with:
(a) any change in law or regulation; or
(b) any requirement from time to time imposed by the Bank of
England, the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which
replaces all or any of its functions).
Any such determination will be, in the absence of manifest error,
conclusive and binding on all the Parties.
79
SCHEDULE 3
FORM OF SUBSTITUTION CERTIFICATE
NB 1. Lenders are advised not to employ Substitution Certificates
or otherwise to assign, novate or transfer interests in the
Facility 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 Lenders 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: Chase Manhattan International Limited on its own behalf, as Facility
Agent for the Lenders and on behalf of the Joint Lead Arrangers, the
Obligors and each other party to the Facility Agreement mentioned
below.
Attention: .
------------
[date]
Substitution Certificate
------------------------
This Substitution Certificate relates to a (pound)900,000,000 facility agreement
(the "Facility Agreement") dated o 2001 between, inter alia, TXU Europe Limited
as the Borrower (1), and the Guarantor (2), Barclays Capital, ▇.▇. ▇▇▇▇▇▇ plc,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ International Limited and The Royal Bank of Scotland plc as
Arrangers (3), the financial institutions set out in schedule 1 thereto as
Lenders (4) and Chase Manhattan International Limited as the Facility Agent (5).
Terms defined in the Facility Agreement whether expressly or by cross-reference
shall have the same meaning in this Substitution Certificate.
1. [Existing Bank] (the "Existing Bank") (a) confirms the accuracy of the
summary of its participation in the Facility Agreement set out in the
schedule hereto; and (b) requests [Substitute Bank] (the "Substitute")
to accept by way of novation the portion of such participation
specified in the schedule hereto by counter-signing and delivering this
Substitution Certificate to the Facility Agent at its address for the
service of notices specified in the Facility Agreement.
2. The Substitute hereby requests the Facility Agent (on behalf of itself,
the other Finance Parties, the Borrower and all other parties to the
Finance Document) to accept this Substitution Certificate as being
delivered to the Facility Agent pursuant to and for the purposes of
clause 23.1 of the Facility Agreement so as to take effect in
accordance with the terms thereof on [date of transfer] (the "Effective
Date") or on such later date as may be determined in accordance with
the terms thereof.
80
3. The Facility Agent (on behalf of itself, the other Finance Parties, the
Borrower and all other parties to the Finance Documents) confirms the
novation effected by this Substitution Certificate pursuant to and for
the purposes of clause 23.1 of the Facility Agreement so as to take
effect in accordance with the terms thereof.
4. The Substitute confirms:
4.1 that it has received a copy of each of the Finance Documents and all
other documentation and information required by it in connection with
the transactions contemplated by this Substitution Certificate;
4.2 that it has not relied upon any statement, opinion, forecast or other
representation or warranty made by the Existing Bank, the Arrangers or
the Facility Agent to induce it to enter into this Substitution
Certificate;
4.3 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 the Group and its own independent investigation of the financial
condition, prospects and affairs of the Group in connection with the
making and continuation of the Facility under the Facility Agreement
and the other Finance Documents;
4.4 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 the
Group whether coming into its possession before the making of an
Advance or at any time or times thereafter, other than (in the case of
the Facility Agent) as provided in clause 17 of the Facility Agreement;
4.5 that it has made and will continue to make its own assessment of the
legality, validity, enforceability and sufficiency of the Finance
Documents and this Substitution Certificate and has not relied and will
not rely on the Existing Bank, the Arrangers or the Facility Agent or
any statements made by any of them in that respect;
4.6 that, accordingly, none of the Existing Bank, the Arrangers, the
Facility Agent or any of their respective employees or agents shall
make 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 17 of the
Facility Agreement.
5. Execution of this Substitution Certificate by the Substitute
constitutes its representation to the Existing Bank and all other
parties to the Facility Agreement that it has power to become party to
the Facility Agreement as a Lender on the terms herein and therein set
out and has taken all necessary steps to authorise execution and
delivery of this Substitution Certificate.
6. The Substitute hereby undertakes to the Existing Bank, the Finance
Parties, the Borrowers and each of the other parties to the Facility
Agreement that it will perform in accordance with their respective
terms all those obligations which by the terms of the Facility
Agreement will be assumed by it after acceptance of this Substitution
Certificate by the Facility Agent.
7. Without limiting the above paragraphs, nothing in this Substitution
Certificate obliges the Existing Bank to:
81
7.1 accept any re-transfer from the Substitute of any of the
rights, benefits and/or obligations hereby transferred; or
7.2 support any losses incurred by the Substitute by reason of any
non-performance by the Borrower or any other party to the
Facility Agreement or any of the other 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 and clauses 26 and 27 of the Facility Agreement are
incorporated herein by reference.
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 hereto on the
date appearing below.
82
The Schedule
------------
Commitment ((pound)) Portion Transferred ((pound))
-------------------- -----------------------------
Contribution ((pound)) Next Interest Payment Date(s) Portion Transferred ((pound))
---------------------- ----------------------------- -----------------------------
Administrative Details of Substitute
------------------------------------
Lending Office:
Account for payments:
Telephone:
Telefax:
Attention:
[Existing Bank] [Substitute]
By: .................... By: ..............
Date: Date:
The Facility Agent
By:
............................
on its own behalf
and on behalf of the other Finance Parties, the Obligors and all other parties
to the Facility Agreement.
83
SCHEDULE 4
CONDITIONS PRECEDENT
1. A copy of the memorandum and articles of association and certificate of
incorporation of the Original Borrower.
2. A copy of a resolution of a committee of the board of directors of the
Original Borrower:
(a) approving the terms of, and the transactions contemplated by,
this Agreement and resolving that it execute this Agreement,
the Fee Letters and each other Finance Document to be executed
by it;
(b) authorising a specified person or persons to execute this
Agreement, the Fee Letters and each other Finance Document to
be executed by it on its behalf; and
(c) authorising a specified person or persons, on its behalf, to
sign and/or despatch all documents and notices to be signed
and/or despatched by it under or in connection with this
Agreement.
3. A copy of the resolution appointing the board committee of the Original
Borrower.
4. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 2 above.
5. A certificate of a director of the Original Borrower confirming that:
(a) the borrowing of the Total Commitments in full would not cause
any borrowing or guaranteeing limit binding on the Original
Borrower to be exceeded; and
(b) each copy document specified in this schedule 4 is correct,
complete and in full force and effect as at a date no earlier
than the date of this Agreement.
6. Evidence that the Original Borrower has paid, or has made arrangements
satisfactory to the Facility Agent for the payment of, all fees
referred to under clauses 7.1.1 and 7.1.2.
7. Legal opinion of Lenders' counsel.
8. Original Financial Statements.
9. A copy of the signed Acquisition Agreement and any press release
announcing Project Wings which refers to the Facility.
10. Draft pro forma post-Project Wings financial statements of the Group.
11. Draft ratings confirmation.
84
SCHEDULE 5
TERMS OF GUARANTEE
1. Guarantee
The Guarantor irrevocably and unconditionally:
(a) as principal obligor, and not merely as surety, guarantees to
the Finance Parties prompt performance by each Obligor of its
obligations under the Finance Documents;
(b) undertakes with each Finance Party that whenever an Obligor
does not pay any amount when due under or in connection with
the Finance Documents, the Guarantor shall promptly on demand
by the Facility Agent pay that amount as if the Guarantor
instead of such Obligor 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 the Guarantor is or becomes unenforceable,
invalid or illegal
2. Continuing guarantee
This guarantee is a continuing guarantee and will extend to the
ultimate balance of all sums payable by the Obligors pursuant to the
Finance Documents, 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 the
Obligors or otherwise) is made in whole or in part or 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 the Guarantor under this
schedule 5 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 the Guarantor under this schedule 5 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 5 or 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, the Borrower or other person;
(b) any release of any Obligor or other person under the terms of
any composition or arrangement and any non-presentation or
non-observance of any formality or other
85
requirement in respect of any instrument or any failure to
realise the full value of any security;
(c) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights or remedies against the Borrower or other
person;
(d) any legal limitation, disability, incapacity or lack of
powers, authority or legal personality of or dissolution or
change in the members or status of the Borrower or any other
person;
(e) any variation (however fundamental and whether or not
involving an increase in liability of the Borrower) or
replacement of a Finance Document or any other document so
that references to that Finance Document in this schedule 5
shall include each variation or replacement;
(f) any unenforceability, illegality, invalidity or frustration of
any obligation of any person under any Finance Document or any
other document or any failure of any Obligor to become bound
by the terms of any Finance Document;
(g) any postponement, discharge, reduction, non-provability or
other similar circumstance affecting any obligation of any
Obligor under a Finance Document resulting from any
insolvency, liquidation or dissolution proceedings or from any
law, regulation or order,
so that each such obligation shall, for the purposes of the Guarantor's
obligations under this schedule 5 remain in full force and be construed
as if there were no such act, circumstance, variation, omission, matter
or thing.
5. Immediate recourse
The 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 of claim in any insolvency proceedings of any person
before claiming from the Guarantor under this schedule 5.
6. Appropriations
Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents 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 the
Guarantor shall not be entitled to the benefit of the same;
and
(b) hold in an interest bearing suspense account any monies
received from the Guarantor or on account of the Guarantor's
liability under this schedule 5.
86
7. Non-competition
Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid
in full, the Guarantor shall, after a claim has been made or by virtue
of any payment or performance by it under this schedule 5:
(a) not 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 the Guarantor's liability under
this schedule 5 and, to the extent that the Guarantor is so
subrogated or entitled by law, it (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) not claim, rank, prove or vote as a creditor of any Obligor 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 the Guarantor was subrogated will be
paid by the Guarantor to the Facility Agent to be applied in
accordance with the provisions of the Finance Documents);
(c) not receive, claim or have the benefit of any payment,
distribution or security from or on account of any Obligor, or
exercise any right of set-off as against any Obligor (and
without prejudice to the foregoing, the 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); or
(d) 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 5.
This guarantee is in addition to and is not in any way prejudiced by
any other security now or subsequently held by any Finance Party.
87
SCHEDULE 6
FORMS OF UTILISATION NOTICE
PART A - ADVANCES
To: Chase Manhattan International Limited
Attn: [.]
(pound)900,000,000 Revolving Credit Facility Agreement dated . 2001
-------------------------------------------------------------------
(the "Agreement")
-----------------
1. We refer to the Agreement and hereby give you notice that we wish to
draw an Advance from the proceeds of the Facility:
(a) on [date];
(b) currency;
(c) in the sum of(pound)[ ];
(d) with a Term in respect thereof of . months; and
(e) the proceeds of such Advance to be credited to [name and
number of account] with [details of Bank].
2. We confirm that:
(a) no event or circumstance has occurred and is continuing which
constitutes an Event of Default or [except in the case of a
Rollover Credit] a Potential Event of Default; and
(b) the representations and warranties contained in clause 8.1 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 in this notice.
For and on behalf of
[TXU Europe Limited]
............................
Duly authorised officer
88
PART B - LETTERS OF CREDIT
To: Chase Manhattan International Limited
Attn: [.]
(pound)900,000,000 Revolving Credit Facility Agreement dated . 2001
-------------------------------------------------------------------
(the "Agreement")
-----------------
1. We refer to the Agreement and hereby request the Issue of a Letter of
Credit under the Facility on the following terms:
(a) Utilisation Date: [.];
(b) Expiry Date: [.];
(c) Currency: [.];
(d) Beneficiary: [.];
(e) Amount: [.];
(f) Purpose: [.];
(g) Issue instructions: [.].
2. We confirm that:
(a) no event or circumstance has occurred and is continuing which
constitutes an Event of Default or [except in the case of a
Rollover Credit] a Potential Event of Default; and
(b) the representations and warranties contained in clause 8.1 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 in this notice.
For and on behalf of
[TXU Europe Limited]
............................
Duly authorised officer
89
SCHEDULE 7
FINANCIAL COVENANTS
1. Financial Covenants
1.1 The Original Borrower will procure that, throughout the Finance Period,
it will comply with the Financial Covenants:
1.1.1 Leverage Ratio
(a) prior to the Project Wings Completion Date, the Leverage Ratio
shall not exceed 70 per cent.;
(b) after the Project Wings Completion Date, but prior to the date
falling 9 months after the Project Wings Completion Date, the
Leverage Ratio shall not exceed 65 per cent.;
(c) after the date falling 9 months after the Project Wings
Completion Date, the Leverage Ratio shall not exceed 60 per
cent.;
1.1.2 Net Interest Cover
(a) as at each FCTD occurring prior to the date falling 9 months
after the Project Wings Completion Date the ratio of Net
Revenues to Net Interest shall be 2:1;
(b) as at each FCTD occurring after the date falling 9 months
after the Project Wings Completion Date the ratio of Net
Revenues to Net Interest shall be 2.50:1.
2. Financial Definitions
"Adjusted Share Capital and Reserves" means the aggregate of the
following items namely:
(a) the nominal amount of the share capital of the Original
Borrower for the time being issued and paid up or credited as
paid up;
(b) the net balance on retained earnings of the Group (including
any share premium account and capital redemption reserve); and
(c) the aggregate amount attributable to the minority interests of
Group members in the share capital or retained earnings of any
non-Group member to the extent not already brought into
account under (a) or (b) above,
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), (b) or (c) above:
(i) by deducting any amounts attributable to interests of
non-Group members in Subsidiaries of the Original Borrower
provided that, if the Original Borrower maintains a
shareholding of at least 90% in ▇▇▇▇▇ 2, no such adjustment
shall be made in respect of ▇▇▇▇▇ 2 or its interests;
90
(ii) 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);
(iii) by deducting the amounts of any intercompany loan or
investment made by a member of the Group to Project Finance
Subsidiaries or to TXU Corp or to any Non-Group Affiliate;
(iv) by adding back to capital reserves, and/or cumulative revenue
reserves (as applicable), to the extent written off and/or
amortised to such reserves (as applicable) after the date of
this Agreement, any goodwill or other intangible asset arising
from any acquisition of all or a majority of the equity share
capital or business of another person whether made before or
after the date of this Agreement;
(v) by adding back proceeds (up to a maximum aggregate amount of
US$300,000,000) from any issue of Equity-Credit Preferred
Securities
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 each such amount shall be determined
by reference to the most recent financial statements and compliance
certificates delivered under the Facility Agreement and the terms of
this definition or any relevant clause of the Facility Agreement;
"Capitalisation" means, at any time, the aggregate of Adjusted Share
Capital and Reserves and Consolidated Net Borrowings;
"Consolidated Net Borrowings" means, at any time, in respect of the
Group, the aggregate of the Borrowed Money of the Group, less the
aggregate book value of:
(a) all Liquid Assets which are in, or are freely transferable to,
the United Kingdom and which are owned by the Original
Borrower 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 the Original
Borrower (exclusive of Liquid Assets constituting or
representing obligations of any member or members of the
Group); and
(b) 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 the
Original Borrower (the "Minority Proportion") provided that,
if the
91
Original Borrower maintains a shareholding of at least 90% in
▇▇▇▇▇ 2, no such adjustment shall be made in respect of ▇▇▇▇▇
2 or its interests,
but adding the aggregate book value 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;
"Leverage Ratio" means, at any relevant time, the percentage which
Consolidated Net Borrowings is of Capitalisation of the Group;
"Liquid Assets" means as at any date, the aggregate (calculated on a
consolidated basis) of:
(a) 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;
(b) short term deposits (the term of which has twelve months or
less remaining maturity) and money at call, with a recognised
financial institution;
(c) 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;
(d) 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;
(e) deposits made with the Commissioners of Inland Revenue in
respect of which certificates of tax deposit have been issued
by Her Majesty's Treasury;
(f) Sterling bills of exchange eligible for rediscount at the Bank
of England;
(g) 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;
(h) 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
92
ascertained, any such Liquid Assets 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;
"Net Interest" includes, in relation to any period, the aggregate
amount of all the following insofar as they are payable by, or accrue
in respect of Indebtedness for Borrowed Money of, any member of the
Group (except to another member of the Group) during that period:
interest, commissions and fees in respect of Borrowed Money, discounts
in respect of bills, notes or debts discounted, and that part of any
amount under a financing lease or hire purchase, credit sale,
conditional sale or deferred payment agreement which represents any of
the foregoing save for interest payments in respect of subordinated
debt or which constitute distributions less the aggregate amount of
interest income of the Group (excluding such income from another member
of the Group) for such period. For this purpose, a discount shall be
apportioned in accordance with RAP over the period for which that ▇▇▇▇,
note or debt is to be outstanding and shall be deemed to accrue from
day to day during that period;
"Net Revenues" means, in relation to any period, the consolidated
income of the Group for that period before Tax, interest and minority
interests and before all exceptional items, all as shown in the
statements of consolidated income of the Group for that period, adding
back all amounts provided (through the statements of consolidated
income) for depreciation, goodwill and amortisation.
93
SCHEDULE 8
FORM OF ACCESSION CERTIFICATE
To: Chase Manhattan International Limited
on its own behalf, as agent for the Lenders party to the Facility
Agreement mentioned below and on behalf of the Obligors and all other
parties to, the Agreement.
Attention: [.]
[date]
Accession Certificate
1. This Accession Certificate relates to a (pound)900,000,000 facility
agreement (the "Facility Agreement") dated . 2001 between, inter alia,
TXU Europe Limited as the Borrower and Guarantor (1), the financial
institutions set out in schedule 1 thereto as Lenders (2), and Chase
Manhattan International Limited as the Facility Agent (3).
Except as otherwise specified in this letter, all terms defined in the
Facility Agreement shall have the same meaning when used in this
certificate and the interpretative provisions of clauses 1.2 and 1.3 of
the Facility Agreement shall apply, mutatis mutandis, in this
certificate. References in this certificate to "you" and "your" means
each of you jointly and severally.
2. . (the "Acceding Borrower") requests the Facility Agent to accept this
Accession Certificate as being delivered to the Facility Agent pursuant
to and for the purposes of clause 22.2 of the Facility Agreement so as
to take immediate effect in accordance with the terms of the Facility
Agreement.
3. The Acceding Borrower is, pursuant to this Accession Certificate,
acceding to the Agreement as an Obligor and accordingly shall, subject
to the terms of this Accession Certificate and the Facility Agreement,
become an Obligor under the Facility Agreement.
4 The Acceding Borrower [is/is not], as at the date of this Accession
Certificate, a Principal Subsidiary.
5. The Facility Agent confirms the accession effected by this Accession
Certificate pursuant to and for the purposes of clause 22.2 of the
Facility Agreement.
6. The Acceding Borrower undertakes to the Facility Agent that it will
perform in accordance with their terms all those obligations which will
be assumed by it as an Obligor after acceptance of this Accession
Certificate by the Facility Agent.
7. This Accession Certificate is intended to take effect as a Deed
notwithstanding that the Facility Agent may execute it under hand only.
8. This Accession Certificate shall be governed by and construed in
accordance with English law.
94
IN WITNESS whereof this Accession Certificate has been entered into as a Deed on
the date above.
95
Notice Details of Acceding Borrower
-----------------------------------
Address:
Telephone:
Telefax:
Attention:
The Acceding Borrower
---------------------
[Execution particulars -
------------------------
Subsidiary to execute as a Deed]
--------------------------------
The Facility Agent
------------------
By:
Chase Manhattan International Limited
on its own behalf and on behalf of the Borrower and all other parties to the
Facility Agreement.
96
SCHEDULE 9
EASTERN ELECTRICITY LIMITED - FURTHER PROVISIONS
1. Representations and Warranties
The Borrower represents and warrants in respect of Eastern Electricity
Limited that:
1.1 Repeated representations and warranties
1.1.1 Due incorporation: EEL is duly incorporated and validly existing under
the laws of the jurisdiction of its incorporation, and has power to
carry on its business as it is now being conducted and to own all of
its property and other assets;
1.1.2 PED Licence: EEL has been duly licensed by the Secretary of State as a
Public Electricity Distributor to distribute electricity, the PED
Licence is in full force and effect, and no notice of revocation,
modification or amendment of the PED Licence has been received by it;
1.2 Non-repeating representations and warranties
1.2.1 Insolvency proceedings: none of the circumstances set out in clauses
11.1.7 to 11.1.12 (inclusive) is continuing in respect of EEL;
1.2.2 Litigation/labour disputes: to the best of its knowledge and belief, no
material litigation (including, without limitation, any proceedings
taken by OFGEM or any similar or successor body), alternative dispute
resolution, arbitration, administration proceeding or material labour
dispute is taking place, pending or threatened in writing against EEL
which if adversely determined would reasonably be expected to have a
Material Adverse Effect;
1.2.3 PED Licence: EEL is not in contravention of any term of the PED
Licence, or any requirement of the Electricity Act or the Utilities Act
(or other related legislation), where such contravention would have a
Material Adverse Effect;
1.3 Repetition
The representations and warranties in clause 1.1 and 1.2 shall be
deemed to be repeated:
1.3.1 on and as of the date of this Agreement; and
1.3.2 in the case of clause 1.1 (only), on each Utilisation Date and
Interest Payment Date falling prior to the Project Wings
Completion Date.
2. Undertakings
At all times prior to the Project Wings Completion Date the Original
Borrower shall procure that EEL shall:
2.1 Compliance with consents etc. relating to the business: obtain
or cause to be obtained, maintain in full force and effect and
comply in all material respects with the conditions and
restrictions (if any) imposed in, or in connection with, every
law,
97
(including Environmental Laws), regulation, agreement, licence
(including, for the avoidance of doubt, the PED Licence), and
concession material to the carrying on of its business as it
is being carried on at the date of this Agreement, where
failure so to do would have a Material Adverse Effect; and
2.2 provide regulatory accounts to OFGEM as required under the
terms of the PED Licence.
3. Negative Covenants
At all times prior to the Project Wings Completion Date the Original
Borrower shall procure that EEL shall not:
3.1 Negative pledge: permit any Security Interest to subsist,
arise or be created or extended over all or any part of its
present or future undertakings, assets, rights or revenues,
save for any Permitted Security Interest;
3.2 Disposals: sell, transfer, lease, surrender, lend or otherwise
dispose of (each a "disposal") the whole or any part of its
present or future undertakings, assets or revenues whether by
one or a series of transactions (related or not) other than a
Permitted EEL Disposal;
3.3 Other obligations: make loans to, or arrangements to
guarantee, or become obligated for all or any part of any
indebtedness to, any third party other than pursuant to the
PED Licence;
3.4 Change in business: undertake any business other than that
permitted pursuant to the PED Licence;
3.5 PED Licence: grant its consent to the revocation, amendment or
modification of the PED Licence, when such revocation,
amendment or modification would have a Material Adverse
Effect.
4. Events of Default
At all times prior to the Project Wings Completion Date the following
events shall constitute Events of Default:
4.1 PED Licence: the PED Licence is revoked (or not renewed),
however, no such Event of Default shall occur in circumstances
where the PED Licence is revoked, but is subsequently granted
to another member of EEL's Group);
4.2 Legislative or regulatory action: any provision of the
Utilities Act or the Electricity Act (or any subordinate
legislation) is repealed or amended, or any regulatory action
is taken against EEL, which in either case would have a
Material Adverse Effect.
98
5. Definition
For the purposes of this schedule:
(a) "PED Licence" means the licence granted to the Borrower under
section 6(1)(d) of the Electricity Act, authorising the
Borrower to distribute electricity to the public, or any
additional or replacement licence(s) for the 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 from time to time; and
(b) "Adjusted Share Capital and Reserves of EEL" means the
aggregate of the following items namely:
(i) the nominal amount of the share capital of EEL for
the time being issued and paid up or credited as paid
up;
(ii) the net balance on retained earnings of EEL
(including any share premium account and capital
redemption reserve); and
(iii) the aggregate amount attributable to the minority
interests of EEL in the share capital or retained
earnings of any non-Group member to the extent not
already brought into account under (i) or (ii) above,
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 (i), (ii) or (iii) above:
(i) by deducting any amounts attributable to interests of
non-Group members in Subsidiaries of EEL;
(ii) by deducting the amount by which the net book value of any
fixed asset has been written up after the date of this
Agreement 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);
(iii) by deducting the amounts of any intercompany loan or
investment made by EEL to Project Finance Subsidiaries or to
TXU Corp or to any Non-Group Affiliate;
(iv) by adding back to capital reserves, and/or cumulative revenue
reserves (as applicable), to the extent written off and/or
amortised to such reserves (as applicable) after the date of
this Agreement, any goodwill or other intangible asset arising
from any acquisition by EEL of all or a majority of the equity
share capital or business of another person whether made
before or after the date of this Agreement;
(v) by adding back proceeds (up to a maximum aggregate amount of
US$300,000,000) from any issue of Equity-Credit Preferred
Securities by EEL,
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 each such amount shall be determined
by reference to the most recent financial statements of EEL.
99
"Permitted EEL Disposal" means:
(a) any disposal of obsolete or redundant assets in the ordinary
course of business on arm's length terms; or
(b) any disposal to another member of the Group; or
(c) any disposal of assets in exchange for the acquisition of
assets the commercial purpose and effect of which is to
replace or improve upon the commercial purpose and effect of
the assets so disposed of; or
(d) any disposal, other than the expenditure or application of
cash, where the net book value of the assets disposed of (net
of other debt repayments required due to the assets being
disposed of being security for those debts or being
obligations of the entity making the disposal and costs
directly attributable to the disposal), when aggregated with
the net book value of any other assets disposed of (otherwise
than pursuant to a specific exception contained in this
definition) in the same financial year of the Group, does not
exceed 15 per cent. of the Adjusted Share Capital and Reserves
of EEL at the end of the previous financial year; or
(e) any disposal made (otherwise than pursuant to a specific
exception contained in this clause) and which causes the
threshold in (e) above to be exceeded provided that the net
proceeds of such disposal (net of other debt repayments
required due to the assets being disposed of being security
for those debts or being obligations of EEL making the
disposal and costs directly attributable to the disposal) (or
such part of such net proceeds as are in excess for the then
current financial year of such threshold) are, within 12
months of the date of such disposal, applied in a permitted
application, (where "permitted application" shall mean any of
(A) the acquisition of a replacement asset for use by EEL in
connection with the Energy Business, or (B) the acquisition of
an asset the commercial purpose and effect of which is to
replace or improve upon the commercial purpose and effect of
the asset so disposed of, or (C) any other application to
which the Facility Agent (acting reasonably on the
instructions of the Majority Lenders) may give its prior
written consent); or
(f) any disposal which constitutes a Permitted Security Interest;
or
(g) any disposal, 100% of the net proceeds of which are promptly
applied in the prepayment and cancellation of the Facility; or
(h) any other disposal to which the Majority Lenders shall have
given their consent.
100
SCHEDULE 10
PART A
FORM OF LETTER OF CREDIT
To: [Beneficiary]
(the "BSC Clearer")
[ ]
Irrevocable Standby Letter of Credit no. [ ]
Dear Sirs,
At the request of [relevant Obligor], (the "Applicant") we have opened in favour
of the BSC Clearer our irrevocable Letter of Credit number [ ] for (pound) [ ]
([amount in words]).
This Letter of Credit is available against sight drafts issued by the BSC
Clearer accompanied by a signed statement issued by the BSC Clearer either:
(a) that the Applicant has failed to pay to the BSC Clearer the amount you
are claiming under the terms of the Balancing and Settlement Code (as
modified from time to time, the "Code"); or
(b) that the amount of the Letter of Credit has become payable pursuant to
the Code by reason of the Letter of Credit not being extended or
replaced in accordance with the requirements of the Code or that we
have ceased to have the credit rating required under the Code.
Payments under this Letter of Credit shall be effected immediately to [ ].
Partial drawings are allowed hereunder.
Claims under this Letter of Credit shall be made at the counters of The Royal
Bank of Scotland plc, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ 3UR, attention:
Syndicated Loans Agency.
This Letter of Credit expires on [ ].
We waive any right to set off against any amount payable hereunder any claims we
may have against you.
Any sight draft and statement to be issued by the BSC Clearer for the purposes
of this Letter of Credit may be signed by [insert name of FAA] (the "FAA") on
behalf of the BSC Clearer.
Any demand hereunder must comply with all the above requirements and signatures
(on behalf of the BSC Clearer or the FAA) thereon must be confirmed by your
bankers.
This Letter of Credit is subject to uniform customs and practice for Documentary
Credits (1993 Revision) published by the International Chamber of Commerce
Publication Number 500.
We undertake that drafts and documents drawn under and in strict conformity with
the terms of this credit will be honoured upon presentation.
101
This Letter of Credit shall be governed by and construed in accordance with
English law.
102
SCHEDULE 10
PART B
FORM OF BANK GUARANTEE
To: [Beneficiary]
(the Beneficiary)
[DATE]
Guarantee no. [ ]
At the request of [ ], The Royal Bank of Scotland plc (the Issuing Bank) issues
this irrevocable guarantee (Guarantee) in your favour on the following terms and
conditions:
1. Definitions
In this Guarantee:
Business Day means a day (other than a Saturday or a Sunday) on which
banks are open for general business in [ ].
Demand means a demand for a payment under this Guarantee in the form of
the schedule to this Guarantee.
Expiry Date means [ ].
Total Guaranteed Amount means [ ].
2. Issuing Bank's agreement
(a) The Beneficiary may request a payment [or payments] under this
Guarantee by giving to the Issuing Bank a duly completed Demand. A
Demand must be received by the Issuing Bank by [ ]p.m. ([London] time)
on the Expiry Date.
(b) Subject to the terms of this Guarantee, the Issuing Bank
unconditionally and irrevocably guarantees to the Beneficiary that,
within [ten] Business Days of receipt by it of a Demand validly
presented under this Guarantee, it must pay to the Beneficiary the
amount which is demanded for payment in that Demand.
(c) The Issuing Bank will not be obliged to make a payment under this
Guarantee if as a result the aggregate of all payments made by it under
this Guarantee would exceed the Total Guaranteed Amount.
3. Expiry
(a) On [ ] p.m. ([ ] time) on the Expiry Date the obligations of the
Issuing Bank under this Guarantee will cease with no further liability
on the part of the Issuing Bank except for any Demand validly presented
under the Guarantee that remains unpaid.
103
(b) The Issuing Bank will be released from its obligations under this
Guarantee on the date prior to the Expiry Date (if any) notified by the
Beneficiary to the Issuing Bank as the date upon which the obligations
of the Issuing Bank under this Guarantee are released.
(c) When the Issuing Bank is no longer under any obligation under this
Guarantee, the Beneficiary must return the original of the Guarantee to
the Issuing Bank.
4. Payments
All payments under this Guarantee must be made in [ ] and for value on
the due date to the account of the Beneficiary specified in the Demand.
5. Delivery of Demand
Each Demand must be in writing, and may be given in person, by post or
fax and must be received in legible form by the Issuing Bank at its
address and by the particular department or officer (if any) as
follows:
[ ]
For the purpose if this Guarantee, electronic communication will be
treated as being in writing.
6. Assignment
The Beneficiary's rights under this Guarantee may not be assigned or
transferred.
[7. URDG
Except to the extent it is inconsistent with the express terms of this
Guarantee, this Guarantee is subject to the Uniform Rules for Demand
Guarantees, International Chamber of Commerce Publication No. 458.]
8. Governing Law
This Guarantee is governed by English law.
9. Jurisdiction
The English courts have exclusive jurisdiction to settle any dispute in
connection with this Guarantee.
104
Yours faithfully
THE ROYAL BANK OF SCOTLAND plc
By:
105
SCHEDULE
FORM OF DEMAND
To: THE ROYAL BANK OF SCOTLAND plc
[DATE]
Dear Sirs
Guarantee no. [ ] issued in favour of [BENEFICIARY] (the Guarantee)
We refer to the Guarantee. Terms defined in the Guarantee have the same meaning
when used in this Demand.
1. We certify that the sum of [ ] is due [and has remained unpaid for at
least [ ] Business Days under [set out underlying contract or
agreement]. We therefore demand payment of the sum of [ ].
2. Payment should be made to the following account:
Name:
Account Number:
Bank:
3. The date of this Demand is not later than the Expiry Date.
Yours faithfully
(Authorised Signatory) (Authorised Signatory)
For
[BENEFICIARY]
106
SIGNATORIES TO THE RESTATED FACILITY A CREDIT AGREEMENT
The Borrower
SIGNED for and on behalf of )
TXU EUROPE LIMITED ) ▇. ▇▇▇▇▇▇
by: )
The Guarantor
SIGNED for and on behalf of )
TXU EUROPE LIMITED ) ▇. ▇▇▇▇▇▇
by: )
The Arrangers
SIGNED for and on behalf of )
BARCLAYS CAPITAL ) ▇. ▇▇▇▇▇▇▇
(the investment banking division )
of Barclays Bank PLC) )
by: )
SIGNED for and on behalf of )
▇.▇. ▇▇▇▇▇▇ PLC ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
SALOMON BROTHERS ) ▇.▇. ▇▇▇▇▇▇▇
INTERNATIONAL LIMITED )
by: )
SIGNED for and on behalf of )
THE ROYAL BANK OF ) ▇▇▇▇ ▇▇▇▇▇▇
SCOTLAND plc )
by: )
107
The Original Lenders
SIGNED for and on behalf of )
BARCLAYS BANK PLC ) ▇. ▇▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
CITIBANK, N.A ) ▇.▇. ▇▇▇▇▇▇▇
By: )
SIGNED for and on behalf of )
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: )
SIGNED for and on behalf of )
THE ROYAL BANK OF ) ▇. ▇▇▇▇▇▇▇▇
SCOTLAND plc )
by: )
The LC Issuing Bank
SIGNED for and on behalf of )
THE ROYAL BANK OF ) ▇▇▇▇ ▇▇▇▇▇▇
SCOTLAND plc )
by: )
The Facility Agent
SIGNED for and on behalf of )
CHASE MANHATTAN ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
INTERNATIONAL LIMITED )
by: )
108