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EXHIBIT (b)(4)
FACILITIES AGREEMENT
for
L.3,625,000,000 CREDIT FACILITIES
TU FINANCE (NO. 1) LIMITED (1)
TU FINANCE (NO. 2) LIMITED (2)
TU ACQUISITIONS PLC
CHASE MANHATTAN PLC (3)
XXXXXX BROTHERS INTERNATIONAL
XXXXXXX XXXXX CAPITAL CORPORATION
as Joint Lead Arrangers
THE CHASE MANHATTAN BANK (4)
XXXXXX COMMERCIAL PAPER INC.
XXXXXXX XXXXX CAPITAL CORPORATION
as Underwriters
THE CHASE MANHATTAN BANK (5)
as Issuing Bank
CHASE MANHATTAN INTERNATIONAL LIMITED (6)
as Facility Agent
CHASE MANHATTAN INTERNATIONAL LIMITED (7)
as Security Agent
FOR THE PRIMARY BORROWER FOR THE FACILITY AGENT
XXXXXX XXXX XXXXXX XXXXX XXXXXXX
London London
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CONTENTS
1. PURPOSE AND DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. THE COMMITMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3. THE CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4. ADVANCES UNDER THE FACILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5. INTEREST AND INTEREST PERIODS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
6. REPAYMENT, PREPAYMENT, CANCELLATION AND REDUCTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7. FEES AND EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
8. PAYMENTS AND TAXES; ACCOUNTS AND CALCULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10. POSITIVE UNDERTAKINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
11. NEGATIVE UNDERTAKINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
12. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
13. INDEMNITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
14. UNLAWFULNESS, INCREASED COSTS, ALTERNATIVE INTEREST RATES . . . . . . . . . . . . . . . . . . . . . . . . . 78
15. SET-OFF AND PRO-RATA PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
16. ASSIGNMENT, SUBSTITUTION AND LENDING OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
17. FACILITY AGENT AND SECURITY AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
18. POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
19. DUTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
20. EXONERATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
21. ENFORCEMENT AND RECOVERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
22. DETERMINATION OF MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
23. BASIS OF DECISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
24. MATTERS CONCERNING THE BORROWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
25. NOTICES AND OTHER MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
26. GOVERNING LAW AND JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
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SCHEDULE 1
THE BANKS AND THEIR COMMITMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
SCHEDULE 2
FORMS OF DRAWDOWN NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
SCHEDULE 3
CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
SCHEDULE 4
CALCULATION OF ADDITIONAL COST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
SCHEDULE 5
FORM OF SUBSTITUTION CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
SCHEDULE 6
FORM OF ACCESSION CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
SCHEDULE 7
TERMS OF BORROWERS' INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
SCHEDULE 8
TERMS OF INTERBANK GUARANTEE AND INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
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THIS AGREEMENT is made the 2nd day of March 1998
BETWEEN:
(1) TU FINANCE (NO. 1) LIMITED (a company registered in England and Wales
with company number 3505836) as Primary Borrower and the initial
Permitted Borrower;
(2) TU FINANCE (NO. 2) LIMITED a company registered in England and Wales
with company number 3514100 ("Xxxxx 2") and TU ACQUISITIONS PLC, a
company registered in England and Wales with company number 3455523
("BIDCO");
(3) CHASE MANHATTAN PLC, XXXXXX BROTHERS INTERNATIONAL AND XXXXXXX XXXXX
CAPITAL CORPORATION as joint lead arrangers (the "Arrangers");
(4) THE CHASE MANHATTAN BANK, XXXXXX COMMERCIAL PAPER INC. AND XXXXXXX
XXXXX CAPITAL CORPORATION as the original Banks (the "Underwriters");
(5) THE CHASE MANHATTAN BANK as the initial Issuing Bank;
(6) CHASE MANHATTAN INTERNATIONAL LIMITED as the initial Facility Agent;
and
(7) CHASE MANHATTAN INTERNATIONAL LIMITED as the initial Security Agent.
IT IS AGREED as follows:
1. PURPOSE AND DEFINITIONS
1.1 PURPOSE
This Agreement sets out the terms and conditions upon and subject to
which the Banks agree, according to their several obligations, to make
available:
(a) Acquisition Facility and Interim Facility
to the Primary Borrower, an Acquisition Facility in Sterling
of up to L.1,775,000,000 and an Interim Facility in Sterling
of up to L.1,150,000,000, each to be used for the purposes of
on-lending to Xxxxx 2 by way of debt bearing interest at a
rate at least equivalent to the Facilities, to be, in turn,
on- lent to Bidco in order to assist Bidco in the financing or
refinancing of the following (but only after the Offer is
declared or becomes unconditional in all respects as permitted
by this Agreement):
(i) any consideration payable by Bidco to shareholders of
the Target in respect of open market purchases of
Target Shares;
(ii) the acquisition of Target Shares by Bidco pursuant to
the Offer;
(iii) fees and expenses of the Primary Borrower and Bidco
in relation to the Offer, and/or out of pocket
expenses of the Parent (up to an amount reasonably
satisfactory to the Arrangers), in relation to the
Offer;
(iv) the consideration payable pursuant to the operation
by Bidco of the procedures contained in sections 428
430 of the Companies Xxx 0000;
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(v) the consideration payable to share option holders in
the Target pursuant to any relevant offer to them by
Bidco to purchase or cancel such share options; and
(vi) in payment to the Parent of the Excess Equity Funding
(if any);
(vii) paying amounts due to Loan Note holders if the Loan
Note Facility comes into existence or in funding the
Loan Note Collateral Account with the principal
amount of the Loan Note Obligation if the Loan Note
Facility does not come into existence;
(b) Revolving Credit Facility
to the Primary Borrower and (subject to accession to this
Agreement under clause 24) the Permitted Borrowers, a
Revolving Credit Facility in Sterling (and in the case of
Letters of Credit, such other currencies as are permitted by
this Agreement) of up to L.700,000,000 to be used for the
purpose of refinancing the Target Group's Borrowed Money, for
the Target Group's general corporate purposes, to the Primary
Borrower for payment of interest on the Advances drawn by the
Primary Borrower falling due not more than 6 months after the
Unconditional Date, for the issue of Letters of Credit by the
Issuing Bank and, in part, for the REC's general corporate
purposes as provided in clause 24.5. For the avoidance of
doubt, the Revolving Credit Facility will not be available for
the financing or refinancing of the Acquisition.
No amounts borrowed under any of the Facilities may be used, directly
or indirectly, to repay or refinance the minimum equity contribution
referred to in paragraph (c) of Part B of Schedule 3 or otherwise
make payments to the Parent or any of its Affiliates (except the
Primary Borrower and its Subsidiaries), other than (i) to pay certain
out of pocket expenses of the Parent in accordance with clause
1.1(a)(iii) above and (ii) as contemplated in clause 1.1(a)(vi) above.
1.2 DEFINITIONS
In this Agreement, unless the context otherwise requires:
"ACCESSION CERTIFICATE" means an accession certificate (by way of
deed) in the form or substantially the form of schedule 6 and entered
into or to be entered into by a Permitted Borrower as an acceding
Borrower and the Facility Agent;
"ACQUISITION" means the acquisition by Bidco of the Target Shares
whether pursuant to the Offer or pursuant to the procedures contained
in Part XIIIA of the Act or by way of open market purchases (and
includes where the context admits payments by Bidco to the Target's
share option holders to purchase or cancel the benefit of such
options);
"ACQUISITION ADVANCE" means each borrowing under the Acquisition
Facility or (as the context requires) the principal amount of that
borrowing outstanding at any relevant time;
"ACQUISITION FACILITY" means the facility granted by the Banks under
clause 2.1(a);
"ACQUISITION FACILITY REPAYMENT DATE" means each of the scheduled
repayment dates for the Acquisition Facility referred to in clause
6.1;
"ACT" means the Companies Xxx 0000;
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"ACTING IN CONCERT" has the meaning given to that term in the Code;
"ADDITIONAL COST" means, in relation to any period, a percentage
calculated for such period at an annual rate determined in accordance
with schedule 4;
"ADJUSTED SHARE CAPITAL AND RESERVES" means the aggregate of the
following items namely:
(a) the nominal amount of the share capital of Xxxxx 2 for the
time being issued and paid up or credited as paid up;
(b) the amounts standing to the credit of the consolidated
reserves of the Group (including any share premium account and
capital redemption reserve),
but adjusted, to the extent that the following items have not already
been added, deducted or excluded in arriving at the figures referred
to in (a) or (b) above:
(c) by deducting the amounts standing to the debit of the
consolidated reserves of the Group;
(d) by deducting any amounts attributable to interests of
non-Group members in Group Subsidiaries;
(e) by deducting any reserves set aside for deferred taxation;
(f) 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 becoming a member of
the Group after that date, the date on which it 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 in respect of (a) the amount of goodwill arising
upon and in respect of the acquisition of shares in the Target
or (b) any other amount if supported by, and not exceeding the
amount shown by, an independent written valuation);
(g) by deducting any amounts attributable to the consolidation of
the assets and liabilities of Project Finance Subsidiaries or,
if the value of such Project Finance Subsidiaries is
represented by 'investment in subsidiaries' (or other
investments) in the books of their relevant holding companies,
deducting the amount of such investment;
(h) by deducting the amount of any loan to Project Finance
Subsidiaries (to the extent not deducted under paragraph (g)
above);
but so that no amount to be added, deducted or excluded as a result of
any of the foregoing shall be added, deducted or excluded more than
once in the same calculation and, where the calculation is being made
as at the end of a Test Period, each such amount shall be determined
by reference to the most recent financial statements and compliance
certificates delivered hereunder as adjusted pursuant to the
provisions of clause 10.3(c);
"ADVANCE" means any Acquisition Advance, Interim Advance or Revolving
Advance and, as the context requires, includes the making of any of
the same or the amount of the same which is outstanding at any
relevant time;
"AFFECTED BANK" has the meaning given to it in clause 14.4;
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"AFFILIATE" means, in relation to any person, any Subsidiary or
subsidiary undertaking (as defined in section 258 of the Act) of that
person, any holding company of that person and any other Subsidiary or
subsidiary undertaking of that holding company;
"AGREED PROJECTIONS" means the projections for the Group dated 2 March
1998 as amended by the supplemental projections of 3 March 1998, both
in the agreed form;
"APPLICABLE FEES RATE" means at any time in respect of:
(a) the Acquisition Facility and the Interim Facility, 0.5 per
cent per annum at all times and on the Loan Note Facility, 0.5
per cent per annum at all times;
(b) the Revolving Credit Facility, 0.375 per cent. per annum;
(c) if the Stand-alone facility referred to in Clause 24.5 is
executed, the figures for the Applicable Fees Rate for the
Revolving Credit Facility shall be 0.5 per cent per annum.
"APPLICABLE MARGIN" means, at any time, 1.25% per annum or if the most
recent determination of the Leverage Ratio under clause 10.3 shows
that the Leverage Ratio is less than 65%, the rate per annum
determined as follows:
LEVERAGE RATIO AND NOT LESS THAN: APPLICABLE MARGIN IS:
IS LESS THAN:
65% 60% 1%
60% - 0.75%
(a) any reduction in the Applicable Margin shall have effect 5
Banking Days following the date of delivery of any set of
audited or management accounts for a Quarter under clause
10.1(b)(i) and (ii), together with the financial covenant
compliance certificate by the Primary Borrower referred to in
clause 10.1(b)(iii), until (but excluding) the effective date
for any subsequent change in the Applicable Margin in
accordance with this definition;
(b) during the continuance of any Default, any margin reduction
under this definition will not apply, and the Applicable
Margin shall be 1.25%;
(c) until Target has become a wholly-owned Subsidiary of Bidco and
no amount is outstanding under the Interim Facility, there
shall be no reduction in the Applicable Margin below 1.25%;
"APPROPRIATE ACCOUNTING PRINCIPLES" means (i) the accounting
principles, policies, standards, practices and bases (being generally
accepted in the United Kingdom), as adopted in the last audited
consolidated accounts of Target published prior to 1 February 1998 or
(ii) where any change has been agreed under clause 10.3(c), such
accounting principles, standards, practices and bases as have been so
agreed;
"ARRANGERS" means Chase Manhattan plc, Xxxxxx Brothers International
and Xxxxxxx Xxxxx Capital Corporation;
"AUDITORS" means Deloitte & Touche L.L.P. or such other
internationally recognised firm of chartered accountants as may be
auditors to the Group for the time being;
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"AVAILABLE COMMITMENT" means, in relation to a Bank and save as
otherwise provided herein:
(a) in respect of the Acquisition Facility at any time, its
Commitment in respect of such Facility at such time less its
Contribution to all outstanding Acquisition Advances at such
time;
(b) in respect of the Interim Facility at any time, its Commitment
in respect of such Facility at such time less its Contribution
to all outstanding Interim Advances at such time;
(c) in respect of the Revolving Credit Facility at any time, its
Commitment in respect of such Facility at such time less:
(i) its Contribution to all outstanding Revolving
Advances at such time;
(ii) its Proportion of the Sterling Amount at that time of
the Outstanding Contingent Liabilities under all
Letters of Credit then outstanding; and
(iii) its proportion of any amount paid out by the Issuing
Bank under a Letter of Credit and not yet reimbursed;
"AVAILABLE COMMITMENT TERMINATION DATE" means save as otherwise
provided herein:
(a) in relation to the Revolving Credit Facility, the Final
Repayment Date;
(b) in relation to the Loan Note Facility, the Final Repayment
Date; and
(c) in relation to the balance of the Acquisition Facility and the
Interim Facility, the date falling ten months after the date
of this Agreement;
"AVAILABLE FACILITY AMOUNT" means, at any time and in respect of any
Facility, the aggregate of the Available Commitments of all the Banks
in respect of such Facility at such time;
"BANKING DAY" means a day (other than Saturday or Sunday) on which
banks are open for business in London and in New York;
"BANKS" means the original banks listed in schedule 1 and includes
their successors in title, assignees and Substitutes;
"BIDCO" means TU Acquisitions PLC (company no. 3455523);
"BORROWED MONEY" includes any Indebtedness of a person in respect of
(without double counting):
(a) borrowed money of that person; or
(b) the principal amount outstanding in respect of any debentures
(within the meaning of Section 744 of the Act) of that person
(notwithstanding that the same are or were issued in whole or
in part for a consideration other than cash) which are not
beneficially owned by another member of the Group; or
(c) the principal amount raised by that person by acceptances (not
being an acceptance in relation to the purchase or sale of
goods in the ordinary course of trading) or under any
acceptance credit opened by any bank or accepting house on
behalf of that person; or
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(d) receivables sold or discounted to the extent of any potential
or contingent recourse save for recourse for disputed or
ineligible debts or similar rights of recourse typical in a
securitisation transaction; or
(e) the acquisition cost of any asset to the extent payable after
the time of acquisition or possession by the party liable
where the deferred payment is not normal trade credit, is
deferred for a period of more than 90 days or is arranged
primarily as a method of raising finance or financing the
acquisition of that asset from or through a bank or financial
institution, except that, if the deferred payment is
amortising, only the amount which remains to be paid shall be
taken into account; or
(f) the nominal amount of any share capital and the principal
amount of any debentures or other indebtedness of any other
person, the redemption or repayment of which is guaranteed or
secured by or is the subject of an indemnity given by that
person; or
(g) any fixed or minimum premium payable on final redemption or
repayment of any debenture, share capital or other borrowed
moneys falling to be taken into account under the other
paragraphs of this definition; or
(h) any net liability under any Derivative Transactions; or
(i) the capital element of any Finance Leases; or
(j) any amount raised under any other transaction having the
commercial effect of a borrowing or entered into primarily as
a means of raising finance including the "Existing Facilities"
and "Existing Public Debt" as defined in clause 10.6;
but does not include:
(i) items of the type described in paragraphs (a) to (j)
(inclusive) above which are owed by one wholly- owned member
of the Group to another wholly-owned member of the Group; or
(ii) Project Finance Borrowings of Project Finance Subsidiaries;
"BORROWERS" means the Primary Borrower as the borrower of the
Acquisition Facility and the Interim Facility, and the Revolving
Credit Facility Borrowers, and "BORROWER" means any one of them;
"CANCELLATION DATE" means the earliest of:
(a) the date on which the Offer lapses or is withdrawn, or is
referred as provided for in paragraph c of Appendix 1 of the
Press Release;
(b) the date falling six months after the Posting Date, if the
Offer has not become or been declared unconditional in all
respects at that date; and
(c) the seventh day after the date of this Agreement, if the Offer
has not by then been announced;
"CAPITALISATION" means at any time the aggregate of Adjusted Share
Capital and Reserves and Consolidated Net Borrowings:
"CERTAIN FUNDS PERIOD" means, in respect of the Acquisition Facility,
the period from the date of this Agreement and ending on the earliest
of:
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(a) the Cancellation Date;
(b) the date falling fifteen days after the Closing Date, or if
prior to such fifteenth day the procedures under sections
428-430 of the Act have been implemented, the date which they
are completed and all payments thereunder have been made; and
(c) the date falling seven months after the date of this
Agreement;
"CHANGE IN CONTROL" shall be deemed to have occurred if:
(a) any person or group of related persons (other than the Parent,
any Subsidiary of the Parent, or any pension, savings or other
employee benefit plan for the benefit of employees of the
Parent and/or any Subsidiary of the Parent) shall have
acquired beneficial ownership of more than 30% of the
outstanding Voting Shares of the Parent (within the meaning of
section 13(d) or 14(d) of the Securities Exchange Act of 1934
of the United States of America, as amended, and the
applicable rules and regulations thereunder); provided that a
Change in Control shall not be deemed to have occurred if such
acquisition has been approved, prior to the Parent Acquisition
Date and the date on which any tender offer for Voting Shares
of the Parent was commenced, by a majority of the
Disinterested Directors of the Parent; or
(b) during any period of 12 consecutive months, commencing before
or after the date of this Agreement, individuals who on the
first day of such period were directors of the Parent
(together with any replacement or additional directors who
were nominated or elected by a majority of directors then in
office) cease to constitute a majority of the board of
directors of the Parent;
"CHARGED ASSETS" means any property, assets and/or rights over which
security is granted and/or created under any of the Security
Documents;
"CLOSING DATE" means the effective date on which the Offer is finally
closed in accordance with the Code;
"COALCO" means, collectively, Citizens Power LLC, a limited liability
company organised in the State of Delaware, Gold Fields Mining
Corporation, a Delaware corporation, Peabody Holding Company Inc, a
New York corporation, Darex Capital Inc, a company incorporated in the
Republic of Panama and Peabody Australia Ltd, a private limited
company incorporated in England and Wales;
"COALCO DISPOSAL AGREEMENT" means the agreement for the sale of Coalco
dated 2 March 1998 entered into between the Target and P&L Coal
Holdings Corporation, a Delaware corporation, in the agreed form;
"COAL PROCEEDS" means L.1,313,950,000;
"CODE" means the City Code on Takeovers and Mergers;
"COMMITMENT" means, in relation to a Bank and in respect of any
Facility at any relevant time, the amount set opposite its name in
relation to the relevant Facility in schedule 1 and/or, in the case of
a Substitute, the amount novated in relation to the relevant Facility
as specified in the relevant Substitution Certificate, as reduced, in
each case, by any relevant term of this Agreement;
"CONSOLIDATED NET BORROWINGS" means, at any time, in respect of the
Group, the aggregate of the Borrowed Money of the Group, as shown in
the then latest audited or unaudited consolidated balance sheet of the
Primary
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Borrower then most recently delivered to the Facility Agent pursuant
to clause 10.1 (the "RELEVANT BALANCE SHEET"), less the aggregate book
value (as included in the relevant balance sheet) of:
(a) all Liquid Assets which are freely transferable to the United
Kingdom and which are owned by wholly- owned members of the
Group or (in the case of the Liquid Assets of a member of the
Group which is a partly-owned Subsidiary) the proportion of
the total amount for the time being of Liquid Assets owned by
such member which corresponds to the proportion of the total
nominal amount of the issued equity share capital of such
Subsidiary or subsidiary undertaking which is beneficially
owned directly or indirectly by the Primary Borrower
(exclusive of Liquid Assets constituting or representing
obligations of any member or members of the Group); and
(b) in the case of a member of the Group which is a partly-owned
Subsidiary, the proportion of total amounts for the time being
outstanding of Borrowed Money owing by such Subsidiary
otherwise than to the Primary Borrower or another member of
the Group which corresponds to the proportion of the total
nominal amount of the issued equity share capital of such
Subsidiary not beneficially owned directly or indirectly by
the Primary Borrower (the "MINORITY PROPORTION");
but adding the aggregate book value (as included in the relevant
balance sheet) of the Minority Proportion of the total amount, if any,
for the time being outstanding of Borrowed Money owing to a
partly-owned Subsidiary by any other member of the Group, and
excluding Borrowed Money arising from the Derivatives Transactions
provided for in clause 11.1(b)(x);
"CONTRIBUTION" means, in relation to a Bank, the principal amount of
any or all (as the context requires) of the Acquisition Advances, the
Interim Advances and/or the Revolving Advances owing to such Bank at
any relevant time;
"DEBENTURE" means a composite guarantee and debenture in the agreed
form creating first fixed and floating charges over all its assets to
be entered into by the Primary Borrower, Xxxxx 2 and Bidco in favour
of the Security Agent;
"DEFAULT" means any Event of Default or any event or circumstance
which in the reasonable opinion of the Majority Banks would reasonably
be expected, upon the giving of a notice by the Facility Agent and/or
the expiry of the relevant period and/or the fulfilment of any other
condition (in each case as specified in clause 12.1), to constitute an
Event of Default;
"DERIVATIVES TRANSACTION" means a contract, agreement or transaction
which is:
(a) a rate swap, basis swap, forward rate transaction, equity (or
equity or other index) swap or option, bond option, interest
rate option, foreign exchange transaction, cap, collar or
floor, currency swap, currency option or any other similar
transaction; and/or
(b) any combination of such transactions,
in each case, whether on-exchange or otherwise;
"DIRECTOR GENERAL" means the person appointed from time to time by the
Secretary of State to hold office as the Director General of
Electricity Supply for the purposes of the Electricity Act;
"DIRECTOR GENERAL OF GAS SUPPLY" means the person appointed from time
to time by the Secretary of State to hold office as the Director
General of Gas Supply for the purposes of the Gas Acts 1986 and 1995;
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"DISINTERESTED DIRECTOR" shall mean any member of the Board of
Directors of the Parent who:
(a) is not affiliated, directly or indirectly, with, or appointed
by, a person or group of related persons (other than the
Parent, any Subsidiary of the Parent, or any pension, savings
or other employee benefit plan for the benefit of employees of
the Parent and/or any Subsidiary of the Parent) acquiring the
beneficial ownership of more than 30% of the outstanding
Voting Shares of the Parent (within the meaning of section
13(d) or 14(d) of the Securities Exchange Act of 1934 of the
United States of America, as amended, and the applicable rules
and regulations thereunder); and
(b) either was a member of the board of directors of the Parent
prior to the Parent Acquisition Date or was recommended for
election by a majority of the Disinterested Directors in
office prior to the Parent Acquisition Date;
"DISTRIBUTION BUSINESS" means the business of REC, or any successor
undertaking to that business within the Group, in or ancillary to the
distribution (whether for its own account or that of any other party)
of electricity through the Group's distribution system and includes
any business of providing connections to the Group's distribution
system;
"DOUBLE TAXATION TREATY" means any convention or agreement between the
government of the United Kingdom and any other government for the
avoidance of double taxation and the prevention of fiscal evasion with
respect to taxes on income and capital gains;
"DRAWDOWN DATE" means the date on which an Advance is, or is to be,
made;
"DRAWDOWN NOTICE" means, in respect of a Facility, a notice
substantially in the terms of the relevant Part of schedule 2;
"EBITDA" means, in respect of any Test Period, the total operating
profit of the Group for continuing operations, acquisitions (as a
component of continuing operations) and discontinued operations before
taking into account (a) interest payable and interest receivable, (b)
all amounts provided for depreciation, goodwill and amortisation, (c)
all extraordinary items, (d) all Taxes, (e) the deduction of any Offer
costs in each case, and (f) any share of consolidated profits or
losses which is attributable to Project Finance Subsidiaries, for that
Test Period (calculated on a consolidated basis disregarding any
portion of any item taken into account in that calculation which is
attributable to any minority interests in Subsidiaries, other than the
minority interest in Xxxxx 2) all as determined by reference to the
most recent financial statements and compliance certificates delivered
under clause 10.1(b), as adjusted pursuant to clause 10.3(c);
"ELECTRICITY ACT" means the Electricity Xxx 0000;
"ENFORCEMENT DATE" means the date of the first declaration made by the
Facility Agent pursuant to clause 12.2;
"ENVIRONMENTAL CLAIM" means any claim, prosecution, demand, action,
official warning, abatement, penalty or other order (conditional or
otherwise) arising as a result of or in connection with any
Environmental Matter against any member or former member of the Group
or associated company and including any formal written notification or
order requiring compliance with the terms of any Environmental Licence
or Environmental Law;
"ENVIRONMENTAL LAWS" means all or any laws, statutes, rules,
regulations, treaties, directives, by-laws, statutory codes of
practices, circulars, guidance notes, orders, notices and demands,
decisions of the courts or anything like any of the foregoing of any
Government Entity or any other body whatsoever in any jurisdiction
13
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or the European Union relating to Environmental Matters and includes
the Environmental Protection Xxx 0000 and the Environment Xxx 0000;
"ENVIRONMENTAL LICENCE" means any permit, licence, authorisation,
consent or other approval required at any time by any Environmental
Law;
"ENVIRONMENTAL MATTERS" means:
(a) the generation, deposit, disposal, escape, keeping, treatment,
transportation, transmission, handling, importation,
exportation, processing, collection, sorting, presence or
manufacture of any "waste" (as defined in the Environmental
Protection Xxx 0000 or in any other Environmental Laws), or
any Relevant Substance which gives rise to a risk of causing
harm to man or any other living organism supported by the
environment, or damaging the environment or public health or
welfare;
(b) nuisance, noise, 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 or any other matter whatsoever
affecting the environment or any part of it;
"ESCROW AGREEMENT" means the escrow agreement made between the parties
to the Coalco Disposal Agreement, in the agreed form;
"EURO" means the single currency of participating member states (so
described in any legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified
European currency);
"EVENT OF DEFAULT" means any of the events or circumstances described
in clause 12.1;
"EXCESS EQUITY FUNDING" means an amount (which shall not exceed the
amount required to be subscribed in cash under paragraph (c) of Part B
of Schedule 3), which shall be equal to the aggregate price (which
would have been payable by Bidco to persons accepting the Offer in
cash) of Target Shares acquired by Bidco pursuant to the Share
Alternative and the terms of the Investment Agreement;
"EXPIRY DATE" means the date stated in a Letter of Credit to be its
expiry date or (if later) the latest date on which demand may be made
under it;
"FACILITIES" means all or any (as the context requires) of the
Acquisition Facility and the Revolving Credit Facility and (as the
context requires) "FACILITY" means any of them;
"FACILITY AGENT" means Chase Manhattan International Limited of 000
Xxxxxx Xxxx, Xxxxxx XX0X 0XX or such other person as may be appointed
Facility Agent for the Banks pursuant to clause 17;
"FACILITY OFFICE" means, in relation to the Facility Agent, Security
Agent or any Bank, the office identified in Schedule 1 (or, in the
case of a Substitute, at the end of the Substitution Certificate to
which it is a party as a Substitute) or such other office as it may
from time to time select provided written notice thereof has been
given by the Facility Agent, Security Agent or such Bank to the
Primary Borrower;
"FEE LETTERS" means the fee letters referred to in clause 7.1, in the
agreed form, and "FEE LETTER" shall mean any one of them;
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"FEE PAYMENT DATE" means each of the dates falling at three monthly
intervals after the date of this Agreement;
"FINAL REPAYMENT DATE" means the fifth anniversary of the date of this
Agreement;
"FINANCE DOCUMENTS" means this Agreement, any L/C-Related Document,
each Drawdown Notice, each Accession Certificate, the Fee Letters, the
Syndication Letter and the Security Documents;
"FINANCE LEASE" means any lease under which a member of the Group is
the lessee which is or should be treated as a finance or capital lease
under the Appropriate Accounting Principles (and includes any hire
purchase contract or other arrangement which is or should be similarly
treated);
"FINANCE PARTIES" means the Facility Agent, the Issuing Bank, the
Arrangers, the Banks, and the Security Agent and (as the context
requires) "FINANCE PARTY" means any one of them;
"FINANCE PERIOD" means the period from the date of this Agreement
until the date on which the Facility Agent confirms that none of the
Finance Parties and none of the Obligors has any actual or contingent
liabilities or obligations under any of the Finance Documents;
"FINANCIAL COVENANTS" means the financial undertakings in clauses
10.3(a) and (b);
"FINANCIAL DEFINITIONS" means the definitions of Adjusted Share
Capital and Reserves, Capitalisation, Consolidated Net Borrowings,
EBITDA, Leverage Ratio, Net Interest Costs and Test Period;
"GAS FRAMEWORK AGREEMENT" means the agreement dated 1st March 1996
between British Gas Transco and Eastern Natural Gas (Retail) Limited;
"GENERATION BUSINESS" means the business of the Group in or ancillary
to the generation of electricity (whether for its own account or that
of any other party);
"GOVERNMENT ENTITY" means and includes (whether having a distinct
legal personality or not) any supra-national, national or local
government authority, regulatory body, central bank, board,
commission, department, division, organ, instrumentality, court or
agency and any association, organisation or institution of which any
of the foregoing is a member of or 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 Laws;
"GROUP" means the Primary Borrower and all its Subsidiaries for the
time being (except Project Finance Subsidiaries) save that where the
reference to "Group" is used in respect of the Financial Definitions
used in calculating the Leverage Ratio, "Group" shall mean Xxxxx 2 and
all its Subsidiaries for the time being (except Project Finance
Subsidiaries);
"GUARANTEES" means any guarantees issued by members of the Target
Group under clause 10.6 or Part B of Schedule 3;
"INDEBTEDNESS" means any obligation of a person for the payment or
repayment of money, whether as principal or as surety and whether
present or future, actual or contingent;
"INTEREST PAYMENT DATE" means the last day of an Interest Period;
15
- 14 -
"INTEREST PERIOD" means in relation to any Acquisition Advance, each
period for the calculation of interest in respect of such Advance
ascertained in accordance with clause 5.2 (or otherwise in this
Agreement);
"INTERIM ADVANCE" means each borrowing under the Interim Facility or
(as the context requires) the principal amount of that borrowing
outstanding at any relevant time;
"INTERIM FACILITY" means the facility granted by the Banks under
2.1(b);
"INVESTMENT AGREEMENT" means the Investment Agreement in the agreed
form dated on or about the date of this Agreement between the Parent,
Texas Utilities Services Inc, the Primary Borrower, Xxxxx 2 and Bidco;
"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;
"ISSUE DATE" means in relation to a Letter of Credit, the date on
which that Letter of Credit was Issued, or, as the context requires,
is to be Issued under clause 4.3 (Issue of Letters of Credit);
"ISSUING BANK" means The Chase Manhattan Bank or any alternative Bank
which has been notified to the Primary Borrower by the Facility Agent
as the issuer of any Letter of Credit in accordance with the terms of
this Agreement;
"L/C-RELATED DOCUMENTS" means each Letter of Credit, any Drawdown
Notice or other application for a Letter of Credit and any other
document relating to any Letter of Credit;
"LETTER OF CREDIT" means a letter of credit or a bank guarantee (as
the case may be) Issued or to be Issued by the Issuing Bank on the
terms of this Agreement;
"LEVERAGE RATIO" means, at any relevant date, the percentage that
Consolidated Net Borrowings is of Capitalisation of the Group;
"LIBOR" means, in relation to any Advance or unpaid sum, the rate per
annum determined by the Facility Agent to be equal to:
(a) the offered rate (if any) appearing on page 3750 of the
Telerate screen, or such other pages as may replace such page
of the Telerate screen, which displays "BBA LIBOR" for
deposits in Sterling and for the specified period (where
"specified period" means the Interest Period or Maturity
Period of such Advance or, as the case may be, the period for
which LIBOR falls to be determined in relation to such unpaid
sum); or
(b) if the Telerate screen is generally inaccessible or if the
relevant rate does not appear on page 3750 or such other page
as may replace such page of the Telerate screen, the
arithmetic mean (rounded upwards, if not already such a
multiple, to four decimal places) of the rates (as notified to
the Facility Agent) at which each of the Reference Banks was
offering to leading banks in the London inter- bank market
deposits in Sterling and for the specified period,
in each case at or about 11.00 am on the Quotation Date for such
period;
"LICENCE UNDERTAKING" means any and each undertaking or assurance
given in connection with the Offer by any one or more of the Parent,
the Primary Borrower, Xxxxx 2, Bidco or the Target or any Affiliate of
any of
16
- 15 -
them to the Director General, the Director General of Gas Supply or
the Secretary of State concerning the management and/or ownership of
and/or other matters concerning the Licensee once the Target has
become a Subsidiary of the Primary Borrower;
"LICENCES" means those licences granted by the Secretary of State:
(a) under section 6 of the Electricity Act authorising the
relevant Licensee to carry on the Distribution Business and
supply of electricity and the Generation Business and any
activities ancillary thereto;
(b) under section 7 of the Gas Xxx 0000; or
(c) being replacement Licence or Licences granted from time to
time to REC or any member of the Group (or, if more than one,
the most recent such replacement), as amended and/or extended
from time to time;
"LICENSEE" means REC or such other member of the Group which, at any
time, is the licensee under a Licence;
"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 such amounts
are transferable out of that jurisdiction and convertible into
currencies dealt in on the London foreign exchange market;
(b) short term deposits and money at call;
(c) certificates of deposit the term of which has twelve months or
less remaining to maturity;
(d) gilts the term of which has twelve months or less remaining to
maturity;
(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
maturity of 12 months or less excluding commercial paper
issued by any person other than a state entity;
provided that:
(i) where Liquid Assets are deposited subject to restrictions in
order that they are held as security for a liability or can be
offset against a liability, such Liquid Assets shall be taken
into account only to the extent that such liability is taken
into account under Consolidated Net Borrowings; and
(ii) when the aggregate amount of Liquid Assets required to be
taken into account for the purposes of this definition on any
particular day is being ascertained, any such Liquid Assets
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 Facility Agent's spot rates as of 11.00 a.m. on such date
for the purchase of such currency with Sterling;
17
- 16 -
"LOAN NOTE ALTERNATIVE" means the option made available to holders of
Target Shares in the Offer Document to elect to receive loan notes of
Bidco in place of the cash consideration otherwise payable;
"LOAN NOTE COLLATERAL ACCOUNT" means an account with the Security
Agent into which:
(a) amounts drawn down under the Loan Note Facility which, by
reason of the requirements for Advances to be of a minimum
amount, are greater than the amounts immediately required to
satisfy Loan Note Obligations, are to be paid; or
(b) if the Loan Note Facility does not come into existence, all
amounts drawn down from the Acquisition Facility or the
Interim Facility for the purpose of funding Loan Note
Obligations are to be paid;
"LOAN NOTE FACILITY" means if the aggregate Loan Note Obligations
equal or exceed L.50,000,000, a facility converted from an equal
amount of the Acquisition Facility and/or the Interim Facility with a
sub-limit equal to the nominal amount of Loan Notes issued pursuant to
the Loan Note Alternative;
"LOAN NOTE HOLDERS" means the holders from time to time of the Loan
Notes;
"LOAN NOTE INSTRUMENT" means the agreed form deed or instrument
constituting the Loan Notes dated on or about the date of this
Agreement and any certificates evidencing issued Loan Notes;
"LOAN NOTE OBLIGATIONS" means the obligations of Bidco to make the
payments required to be made from time to time to the Loan Note
Holders;
"LOAN NOTES" means the loan notes issued or to be issued by Bidco to
accepting shareholders in the Target under the Loan Note Alternative;
"MAJORITY BANKS" means subject to clause 23.2 at any relevant time
Banks:
(a) the aggregate of whose Contributions to all the Facilities
exceeds 66 2/3 per cent. of the Total Contributions in respect
of all the Facilities; or
(b) (if no principal amounts are outstanding under this Agreement)
the aggregate of whose Commitments in respect of all the
Facilities exceeds 66 2/3 per cent. of the Total Commitments
in respect of all the Facilities but so that if at such time
the Total Commitments in respect of any Facility have been
reduced to zero references to a Bank's Commitment in relation
to such Facility shall be construed as amongst the Finance
Parties (and not so as to give any rights to any other person)
as a reference to that Bank's Commitment in relation to such
Facility immediately prior to such reduction to zero;
"MAJOR DEFAULT" means, any one or more of the events set out below
(whether or not caused by any reason outside the control of any
Relevant Offeror Company):
(a) any Relevant Offeror Company is deemed pursuant to applicable
law unable to pay its debts as they fall due or commences
negotiations with its creditors with a view to a general
re-scheduling of indebtedness;
(b) any administrative or other receiver or any manager is
appointed over any Relevant Offeror Company or any material
part of the assets, business and/or undertaking of any such
company;
(c) a winding-up order or an administration order is made in
relation to any Relevant Offeror Company;
18
- 17 -
(d) any Relevant Offeror Company threatens to pass or passes a
resolution for (or petitions for) its winding-up or
administration;
(e) any event occurs in any jurisdiction which corresponds with,
or has an effect equivalent to, any of (a) to (d) above in any
country or territory in relation to a Relevant Offeror
Company;
(f) an event falling within clause 12.1(w) occurs;
(g) a breach of any of clauses 10.4(a)(iii), (iv), (v) or (vi),
10.4(b), 10.4(c) or 10.4(d) occurs;
(g) any of the representations and warranties in clauses 9.1 or 9.2(a) being
incorrect in any material respect in relation to a Relevant Offeror Company; or
(h) any other Default occurs which is within the power of a Relevant Offeror
Company to remedy within 7 days of receiving notice of the Default, but which
it chooses not to remedy having been given at least 7 days' prior written
notice by the Facility Agent requesting it to do so;
(i) so far only as concerns an Offer Advance falling within paragraph (ii) of
that definition, any of the matters referred to in paragraphs (a), (b), (c), or
(d) of this definition occurs in relation to the Target, one of its Principal
Subsidiaries or any Licensee;
"MATERIAL ADVERSE EFFECT" is a reference to:
(a) something having a material adverse effect on the ability of
any Borrower to perform its payment or Financial Covenant
obligations under any of the Finance Documents; or
(b) something (other than the Reservations) which results in any
of the Finance Documents not being legal, valid and binding
on, or enforceable in accordance with their terms against, any
of the Obligors in a manner and to an extent reasonably
considered by the Majority Banks to be materially adverse to
the interests of the Banks;
"MATURITY DATE" means, in relation to any Revolving Advance, the last
day of the period for which that Revolving Advance is drawn down;
"MATURITY PERIOD" means, in relation to any Revolving Advance, the
period beginning on its Drawdown Date and ending on its Maturity Date;
"MONTH" or "MONTHS" means a period beginning in one calendar month and
ending in the relevant later calendar month on the day numerically
corresponding to the day of the calendar month in which it started,
provided that (a) if the period started on the last Banking Day in a
calendar month or if there is no such numerically corresponding day,
it shall end on the last Banking Day in such later calendar month and
(b) if such numerically corresponding day is not a Banking Day, the
period shall end on the next following Banking Day in such later
calendar month but if there is no such Banking Day it shall end on the
preceding Banking Day and "MONTHLY" shall be construed accordingly;
"NET INTEREST COSTS" means, in respect of any period, the aggregate
accruing during such period (whether or not paid or payable within
such period) of:
(a) interest, guarantee and other ancillary facility fees, letter
of credit commission and fronting fees and commitment fees
incurred by the Group (disregarding any portion attributable
to any minority interests
19
- 18 -
in Subsidiaries, other than the minority interest in Xxxxx 2)
(including any agency fees or arrangement fees or other costs
associated with the Acquisition or the financing thereof
charged and amortised under FRS4, and including the interest
element of Finance Leases); and
(b) net amounts payable (or reduced by net amounts receivable) in
respect of interest rate hedging for the Facilities;
and deducting credit interest receivable (on an accruals basis) in
cash during such period which would be shown as interest receivable in
the relevant accounts delivered under clause 10.1(b)(i) and (ii), as
adjusted pursuant to clause 10.3(c);
"NON CASH SHARES" means Target Shares acquired pursuant to the Share
Alternative or the Loan Note Alternative;
"OBLIGOR" means a member of the Group party to a Finance Document;
"OFFER" means the offer proposed to be made by and on behalf of
Bidco, in the agreed form and on terms and conditions set out in the
Press Release, to acquire the whole of the ordinary share capital
(whether in issue or falling to be allotted) of the Target not already
owned by Bidco, as such offer may from time to time be amended, added
to, revised, renewed or waived in accordance with clause 10.4;
"OFFER ADVANCE" means an Advance made or to be made under the
Acquisition Facility or the Interim Facility (i) for the purpose of
meeting the obligations of Bidco in respect of the Offer or (ii) for
financing payments by Bidco required under the procedures in sections
428-430 of the Act;
"OFFER DOCUMENTS" means each of the documents issued, or to be issued,
by Bidco to the shareholders of the Target in respect of the Offer
(including the forms of acceptance), in the agreed form;
"OUTSTANDING CONTINGENT LIABILITIES" at any time under a Letter of
Credit means the face value of that Letter of Credit at that time in
accordance with its express provisions less:
(a) the aggregate amount of any cash cover (not including any cash
cover lodged by any Bank) held in relation to that Letter of
Credit at that time; and
(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 Issuing Bank, pursuant to demands made under that
Letter of Credit on or prior to such time, for which it has
been reimbursed by the relevant Borrower;
or such lesser amount as the Facility Agent and the Issuing Bank may
agree in good faith represents the maximum liability of the Issuing
Bank in respect thereof;
"PARENT" means Texas Utilities Company whose principal place of
business is at 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx, 00000;
"PARENT ACQUISITION DATE" shall mean the date as of which a person or
group of related persons first acquires more than 30% of the
outstanding Voting Shares of the Parent (within the meaning of section
13(d) or 14(d) of the Securities Exchange Act of 1934 of the United
States of America, as amended, and the applicable rules and
regulations thereunder);
20
- 19 -
"PERMITTED BORROWER" means any of the Target and the other members of
the Target Group, except the REC;
"PERMITTED CAPITAL MARKET INSTRUMENT" means a capital market
instrument which is for a term expiring after the Final Repayment Date
and has no option on the part of the holders of such instrument to
request earlier repayment other than on the occurrence of events of
default which are reasonably standard for capital market instruments;
"PERMITTED SECURITY INTEREST" means a Security Interest created by any
member of the Target Group being any of the following, namely:
(a) any lien arising solely by operation of law in the ordinary
course of business and securing amounts not more than 90 days
overdue or which are being contested with due diligence and in
good faith, and other liens agreed to in writing by the
Majority Banks;
(b) any Security Interest existing on or over the assets of any
member of the Target Group as at the Unconditional Date (or
which any such member is obliged to create under a contract
existing at such date), but only if:
(i) the Security Interest was not created in
contemplation of such member becoming a member of the
Group;
(ii) the maximum principal amount of the indebtedness
secured by the Security Interest is not increased
after the Unconditional Date; and
(iii) any such Security Interest which is created between
the date of this Agreement and the Unconditional Date
is discharged within 180 days after the Unconditional
Date (unless the Security Interest was created
pursuant to an obligation existing as at the date of
this Agreement);
(c) any Security Interest existing on or over the assets of such
member at the time it becomes a member of the Target Group
after the date the Target becomes a member of the Group, but
only if:
(i) the Security Interest was not created in
contemplation of the company becoming a member of the
Target Group; and
(ii) the maximum principal amount of the indebtedness
secured by the Security Interest is not subsequently
increased;
(iii) such Security Interest is discharged within 180 days
after the date such member became a member of the
Group;
(d) any Security Interest existing on or over an asset acquired by
a member of the Target Group after the date of this Agreement,
but only if:
(i) the Security Interest was not created in
contemplation of the acquisition; and
(ii) the maximum principal amount of the indebtedness
secured by the Security Interest is not subsequently
increased;
21
- 20 -
(iii) such Security Interest is discharged within 180 days
after the date such member became a member of the
Group;
(e) any Security Interest over any asset acquired by a member of
the Target Group after the date of this Agreement as security
for Indebtedness incurred to finance or refinance (within 6
months of the acquisition) all or part of the consideration
for the acquisition of that asset, provided that the
Indebtedness secured by Security Interests under this
subclause (e) shall not exceed L.1,000,000 in aggregate at any
time;
(f) any Security Interest arising over
(i) accounts with any bank or financial institution as a
result of netting and set-off arrangements existing
with such person to the extent that such arrangements
are in support of net overdraft facilities extended
by such person or
(ii) documents of title to goods and insurances under
trade finance facilities provided to any member of
the Target Group as part of the Target Group's normal
day to day banking business;
(g) any Security Interest over goods purchased in the ordinary
course of business arising by virtue of the supplier's
retention of title clause in its standard conditions of supply
to secure only the purchase price of the goods;
(h) any Security Interest created by a Project Finance Subsidiary
to secure Project Finance Borrowings, or over the shares or
other investment in a Project Finance Subsidiary provided that
it is entirely without recourse to any member of the Group
beyond enforcement of such Security Interest;
(i) so far as they relate to netting, settlement or pooling
arrangements or as required by the regulatory framework or
arrangements in which the relevant business operates, any
Security Interest arising under the Relevant Arrangements;
(j) any Security Interest arising under the terms of Derivatives
Transactions or as a result of trading of shares or other
securities where such Security Interest arises under the rules
of the relevant exchange or clearing system;
(k) any Security Interest constituted by a Finance Lease if the
capital value of such Finance Lease would be permitted under
this Agreement as Borrowed Money under clause 11.1(b); and
(l) any Security Interests (other than any Security Interest
permitted by sub-paragraphs (a) to (k) above) securing
indebtedness not exceeding in aggregate L.50,000,000 or its
equivalent in other currencies at any time;
"POOLING AND SETTLEMENT AGREEMENT" means the pooling and settlement
agreement dated 30 March 1990 made between REC and the National Grid
Company Plc and others setting out the rules and procedures for the
operation of an electricity trading pool and of a settlement system in
England and Wales;
"POSTING DATE" means the date on which the Offer is posted;
"PRESS RELEASE" means the press announcement in the agreed form
proposed to be released in connection with the Offer;
22
- 21 -
"PRINCIPAL SUBSIDIARY" means:
(a) any member of the Group whose unconsolidated net assets or
pre-tax profit, at any time after the date of this Agreement,
equals or exceeds 10 per cent of the net assets or pre-tax
profit of the Group at that time, and for the purpose of the
above:
(i) the net assets or pre-tax profit of the Group shall
be ascertained by reference to the latest audited
consolidated accounts of the Group or the latest
management accounts delivered to the Facility Agent
in accordance with clause 10.1(b)(ii); and
(ii) the net assets or pre-tax profit of any such member
shall be ascertained by reference to the latest
audited accounts of that Subsidiary or the latest
management accounts delivered to the Facility Agent
in accordance with clause 10.1(b)(ii),
for the purposes of the above, "NET ASSETS" in respect of the
Group or any such member means the fixed assets and current
assets of the Group or that member (as the case may be) but
excluding investments in any Subsidiary and any loan to
another member of the Group; or
(b) a member of the Group to which has been transferred (whether
by one transaction or a series of transactions, related or
not) the whole or a material part of the business, undertaking
or assets of a Subsidiary which immediately prior to those
transactions was a Principal Subsidiary;
(c) any member of the Group which is a holding company, directly
or indirectly, of a Principal Subsidiary;
Provided that if at any time members of the Group which are not
Principal Subsidiaries have in aggregate unconsolidated net assets or
pre-tax profits at any time equal to or exceeding 20% of the net
assets or pre-tax profits of the Group at that time, one or more of
such other members of the Group (beginning with the companies with the
greatest net assets or pre-tax profits as the case may be) shall also
be treated as Principal Subsidiaries until the 20% threshold for
members of the Group which are not Principal Subsidiaries is no longer
exceeded;
"PROJECT FINANCE BORROWINGS" means any Indebtedness of a type referred
to in any of paragraphs (a) to (j) of the definition of "Borrowed
Money" which is owed otherwise than to a member of the Group and
finances the acquisition, construction, development, ownership and/or
operation of an asset:
(a) which is incurred by a Project Finance Subsidiary; and
(b) in respect of which the person or persons to whom such
Borrowed Money is or may be owed by the relevant Project
Finance Subsidiary has or have no recourse whatsoever to any
member of the Group for the repayment thereof (save for
enforcement of a Permitted Security Interest under (h) of the
definition thereof);
"PROJECT FINANCE SUBSIDIARY" means any Subsidiary of the Target:
(a) which is a company that is either (i) not an existing
Subsidiary of the Target as at the date of this Agreement or
(ii) has no Subsidiaries of its own (other than Subsidiaries
which are Project Finance Subsidiaries), and whose principal
assets and business are constituted by the ownership,
acquisition, development and/or operation of an asset or
assets whether directly or indirectly;
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(b) none of whose Borrowed Money or Indebtedness in respect of the
financing of the ownership, acquisition, development and/or
operation of such assets, or other arrangements, benefits from
any recourse whatsoever to any other member of the Group
(including as shareholder in an unlimited company) in respect
of the repayment thereof, and none of whose activities,
business or undertaking will under any applicable law or
regulation result in any member of the Group having any
material risk of a liability which might reasonably be
expected to have a Material Adverse Effect; and
(c) which has been designated as such by the Facility Agent after
the Primary Borrower has given written notice to the Facility
Agent requiring such designation to be made;
or any Subsidiary of a company falling within (a), (b) and (c) above;
"PROPORTION" means, in relation to a Bank, the proportion borne by its
Commitment to the Total Commitments (or, if the Total Commitments are
then zero, by its Commitment to the Total Commitments immediately
prior to their reduction to zero);
"QUALIFYING BANK" means:
(a) a person which:
(i) is a bank within the meaning of Section 840A of the
Income and Corporation Taxes Xxx 0000;
(ii) will be beneficially entitled to any interest to be
paid to it (as a Bank) under this Agreement; and
(iii) is within the charge to United Kingdom corporation
tax as respects such interest,
except that, if Section 349 or Section 840A of the Income and
Corporation Taxes Act 1988 is repealed, modified, extended or
re-enacted, the Facility Agent may at any time and from time
to time (after consultation with the Primary Borrower and the
Banks) amend this paragraph (a) in such manner as it may
determine acting reasonably to be appropriate by giving notice
of the amended paragraph (a) to the Primary Borrower and the
Banks and, so far as practicable to put the Banks in the same
position as they would otherwise have been in; or
(b) a Treaty Lender;
"QUARTER" means each three-month period ending on the last Banking Day
in March, June, September and December in each year;
"QUARTER DATE" means 31 March, 30 June, 30 September and 31 December;
"QUOTATION DATE" means, in relation to an Interest Period, Maturity
Period or other period for which LIBOR is to be determined, the date
on which quotations would customarily be provided by leading banks in
the London Interbank Market for deposits in Sterling for delivery on
the first day of that Interest Period, Maturity Period or other
period;
"REC" means Eastern Electricity plc (company no. 2366906);
"REC GROUP" means REC and its Subsidiaries (except for any Project
Finance Subsidiaries);
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"RECEIVER" has the meaning given to that term in the Debenture;
"RECOVERING BANK" has the meaning given to that term in clause 15.2;
"REFERENCE BANKS" means The Chase Manhattan Bank and any two other
banks selected by the Facility Agent with the consent of the Primary
Borrower (which is not to be unreasonably withheld), or if any of them
cease to so act, such other bank or banks selected by the Facility
Agent in accordance with clause 23.7;
"RELATED PERSONS" each of the Facility Agent, the Security Agent, the
Issuing Bank, any successor Facility Agent, Security Agent or Issuing
Bank arising under clause 17, the Arrangers and the Underwriters,
together with their respective Affiliates and the officers, directors,
employees, agents, trustees and attorneys-in-fact of such persons and
Affiliates;
"RELEVANT ARRANGEMENTS" means any arrangements under or in connection
with any pooling and settlement or onshore transportation arrangements
or agreements of the electricity distribution, supply or generation,
or gas transportation, distribution and/or supply industry or energy
trading (including (but without limitation) the Pooling and Settlement
Agreement or the Gas Framework Agreement) or telecommunications or
water industry or energy or energy-related business or in connection
with any transactions or arrangements entered into in the ordinary
course of its business in a form usual in any such industry or
business;
"RELEVANT COMPANY" means any of the Primary Borrower, Xxxxx 2, Bidco,
the Target and the Principal Subsidiaries;
"RELEVANT OFFEROR COMPANY" means any of the Primary Borrower, Xxxxx 2
and Bidco;
"RELEVANT SUBSTANCE" means any radioactive emissions, radiation,
noise, any natural or artificial 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) and includes,
without limitation, "WASTE" (as defined in the Environmental
Protection Xxx 0000 or in any equivalent legislation or regulation in
force in any jurisdiction in which any member of the Group is
incorporated, owns property or assets or carries on any business or
operations);
"RESERVATIONS" means (a) the principle that equitable remedies may be
granted or refused at the discretion of the court, (b) the limitation
on enforcement by laws of general application relating to insolvency,
liquidation, reorganisation, court schemes or administration, (c) the
time barring of claims under the Limitation Act 1980 and (d) the
possibility that an undertaking to assume liability for or to
indemnify against non-payment of UK stamp duty may be void;
"REVOLVING ADVANCE" means each borrowing made or to be made by way of
an advance under the Revolving Credit Facility or (as the context
requires) the principal amount of that borrowing outstanding at any
relevant time;
"REVOLVING CREDIT FACILITY" means the facility granted by the Banks to
the Borrowers in accordance with clause 2.1(b);
"REVOLVING CREDIT FACILITY BORROWERS" means the Primary Borrower and
any Permitted Borrower which accedes to this Agreement as a Revolving
Credit Facility Borrower pursuant to clause 24;
"SECRETARY OF STATE" means the Secretary of State for Trade and
Industry from time to time or such other person as may for the time
being be fulfilling the functions of the Secretary of State under the
Electricity Act or the Gas Acts;
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"SECURITY AGENT" means Chase Manhattan International Limited or such
other person as may be appointed security agent and trustee pursuant
to clause 17 of this Agreement;
"SECURITY DOCUMENTS" means the Debenture, the Guarantees, the Share
Charge and any further guarantees or security provided to the Security
Agent from time to time under or in connection with this Agreement;
"SECURITY INTEREST" means any mortgage, pledge, lien, charge,
assignment, right of set-off, arrangement for retention of title,
hypothecation or security interest, or any other agreement or
arrangement having the effect of conferring security or a security
interest, or any agreement to sell or otherwise dispose of any asset
on terms whereby such asset is acquired or reacquired by any member of
the Group;
"SHARE ALTERNATIVE" means the limited option made available to holders
of Target Shares in the Offer Documents to elect to receive common
stock of the Parent in place of the cash consideration otherwise
payable;
"SHARE CHARGE" means the share charge, in the agreed form, dated on or
about the date hereof granted by Texas Utilities Services Inc. in
favour of the Security Agent over its shares in Xxxxx 2;
"SHARE VALUE" means, at any time until Bidco has acquired shares
carrying the right to vote 75% of the votes of each class of shares at
a general meeting, the value of the Target Shares acquired pursuant to
the Offer and effectively charged in favour of the Security Agent,
which shall at all times be deemed to be calculated by reference to
the price per share contained in the Offer;
"SPOT RATE" means, in respect of any sum denominated in any currency
other than Sterling at any date, the Facility Agent's spot rate of
exchange for purchase of that sum in that currency in the London
foreign exchange market with Sterling at or about 11.00 am on that
date for delivery of such sum two Banking Days thereafter;
"STERLING" and "L." mean the lawful currency for the time being of the
United Kingdom and in respect of all payments to be made under this
Agreement in Sterling mean immediately available, freely transferable
cleared funds;
"STERLING AMOUNT" means in respect of Outstanding Contingent
Liabilities, the sum of the amount in Sterling of the Outstanding
Contingent Liabilities under Letters of Credit denominated in Sterling
and the amount of Sterling required to purchase the currency amount of
the Outstanding Contingent Liabilities under Letters of Credit
denominated in each other currency at the Spot Rate at that time and
so that such Sterling Amount shall be recalculated by the Facility
Agent:
(a) in any event, on every Quarter Date; and
(b) on each date on which the Majority Banks request the Facility
Agent to do so in accordance with the provisions of clause
4.11 (Currency Fluctuations),
and the recalculated amount shall thereupon and until the next
recalculation required by this Agreement constitute the Sterling
Amount of Outstanding Contingent Liabilities under any Letters of
Credit for all purposes of this Agreement;
"SUBSIDIARY" means:
(a) a subsidiary within the meaning of section 736 of the Act; and
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(b) for the purposes of the definition of "Affiliate" and "Group"
and clauses 10.1(a), 10.3, 20.7 and schedule 6 only, a
subsidiary undertaking within the meaning of section 258 of
the Act;
"SUBSTITUTE" has the meaning given to that term in clause 16.3;
"SUBSTITUTION CERTIFICATE" means a certificate substantially in the
terms of schedule 5;
"SYNDICATION DATE" means the date as determined by the Arrangers and
notified by them to the Primary Borrower on which syndication of the
Facilities has been fully completed;
"SYNDICATION LETTER" means the syndication letter from the Arrangers
and the Underwriters to the Primary Borrower dated on or about the
date of this Agreement, in the agreed form;
"TAKEOVER OPERATIVE DATE" means the date falling 120 days after the
Unconditional Date;
"TARGET" means The Energy Group PLC (company no. 3257256);
"TARGET GROUP" means the Target and its Subsidiaries from time to time
(except any Project Finance Subsidiary);
"TARGET PES SUBSIDIARIES" means any Subsidiary of the Target which
holds a Licence;
"TARGET SHARES" means the issued and to be issued shares in the
capital of the Target (including the Target's American Depositary
Shares) which are the subject of the Offer;
"TAXES" includes all present and future taxes, levies, imposts,
duties, fees or charges of whatever nature including without
limitation any interest or penalties payable in connection with any
failure or delay in paying any of the same and "TAXATION" shall be
construed accordingly;
"TEST PERIOD" means:
(a) each twelve-month period ending on the last day of each
Quarter beginning with the last day of the second complete
Quarter following the Unconditional Date; and
(b) each Accounting Reference Period of the Primary Borrower
ending on 31 December in each year;
"TOTAL COMMITMENTS" means, in respect of a Facility or (as the context
requires) the Facilities at any relevant time, and save as otherwise
provided herein, the total of the Commitments of all the Banks in
respect of such Facility or Facilities (as appropriate) at such time;
"TOTAL CONTRIBUTIONS" means, in respect of any Facility or (as the
context requires) the Facilities at any relevant time, the total of
the Contributions of all the Banks in respect of such Facility or
Facilities (as appropriate) at such time;
"TREATY LENDER" means a person which is resident (as such term is
defined in the appropriate double taxation treaty) in a country with
which the United Kingdom has a double taxation treaty giving residents
of that country complete exemption from the imposition of any
withholding or deduction for or on account of United Kingdom Taxes on
interest (and which does not carry on business in the United Kingdom
through a permanent establishment with which the Indebtedness under
this Agreement in respect of which the interest is paid is effectively
connected);
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"TRUST PERIOD" means the period ending on the last day of the period
of 80 years from the date of this Agreement, which period (and no
other) shall be the applicable perpetuity period;
"TRUST PROPERTY" means all or any part of the rights, titles,
interests, assets and income that may now or hereafter be mortgaged,
charged, assigned or granted or the subject of a Security Interest in
favour of the Security Agent or the Finance Parties by or pursuant to
the Finance Documents and the proceeds of any such security;
"UNCONDITIONAL DATE" means the date the Offer becomes or is declared
unconditional in all respects;
"UTILISATION" means the making of an Advance or the Issue of a Letter
of Credit; and
"VOTING SHARES" means outstanding shares of capital stock of any class
of the Parent entitled to vote in the election of directors, excluding
shares entitled so to vote only upon the happening of some
contingency.
1.3 HEADINGS
Clause headings and the table of contents are inserted for convenience
of reference only and shall be ignored in the interpretation of this
Agreement.
1.4 CONSTRUCTION OF CERTAIN TERMS
In this Agreement, unless the context otherwise requires:
(a) references to clauses and schedules are to be construed as
references to the clauses of, and schedules to, this Agreement
and references to this Agreement include its schedules;
(b) references to (or to any specified provision of) this
Agreement or any other document shall be construed as
references to this Agreement (including any Accession
Certificate and Substitution Certificate), that provision or
that document as in force for the time being and as from time
to time amended, novated or supplemented in accordance with
its terms, or, as the case may be, with the agreement of the
relevant parties and (where such consent is, by the terms of
this Agreement or the relevant document, required to be
obtained as a condition to such amendment being permitted) the
prior written consent of the Facility Agent;
(c) references to a "REGULATION" include any present or future
regulation, rule, directive, requirement, request or guideline
(whether or not having the force of law) of any Government
Entity;
(d) references to an "AUTHORISATION" mean and include any consent,
authorisation, licence, approval and permit;
(e) words importing the plural shall include the singular and vice
versa;
(f) references to a time of day are to London time;
(g) references to a "PERSON" shall be construed as including
references to an individual, firm, company, corporation,
unincorporated body of persons or any State or any of its
agencies;
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(h) references to "ASSETS" include all or part of any business,
undertaking, real property, personal property, shareholdings,
assets, revenues, uncalled capital and any rights (whether
actual or contingent, present or future) to receive, or
require delivery of, any of the foregoing;
(i) references to the "EQUIVALENT" of an amount specified in a
particular currency (the "SPECIFIED CURRENCY AMOUNT") shall be
construed as a reference to the amount of the other relevant
currency which can be purchased with the specified currency
amount 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 conclusively determined by the Facility
Agent (with the relevant exchange rate of any such purchase
being the "SPOT RATE");
(j) references to any enactment shall be deemed to include
references to such enactment as re-enacted, amended or
extended;
(k) references to documents being in the "AGREED FORM" mean
documents initialled by both Xxxxxx Xxxxx Xxxxxxx (on behalf
of the Facility Agent and the Arrangers) and Xxxxxx Xxxx (on
behalf of the Borrowers), or otherwise in the form required by
the Facility Agent;
(l) references to "VAT" are to be construed as including
references to any similar Tax;
(m) "INCLUDING" and "IN PARTICULAR" shall not be construed
restrictively but shall mean "including, without prejudice to
the generality of the foregoing" and "in particular, but
without prejudice to the generality of the foregoing"
respectively;
(n) obligations of more than one Obligor under this Agreement are
joint and several;
(o) references to documents being "CERTIFIED COPIES" mean copies
certified as being true, complete and up- to-date copies as of
a date no earlier than the date of this Agreement by an
officer of the Primary Borrower who is at such time duly
authorised to execute or certify such documents on behalf of
the Primary Borrower;
(p) "ARMS LENGTH TERMS" means on terms which are fair and
reasonable to the relevant member of the Group and no more or
less favourable to the other party to the relevant transaction
than could reasonably be expected to be obtained in a
comparable transaction with a person unconnected with the
Group;
(q) references to "HOLDING COMPANY", save as otherwise defined,
shall bear the same meaning as in section 736 of the Act, as
if extended to bodies corporate wherever incorporated;
(r) a Letter of Credit being "REPAID" or "PREPAID" is effected by:
(i) providing the Issuing Bank with cash cover in the
currency in which that Letter of Credit is
denominated;
(ii) reducing (in accordance with the terms of this
Agreement and the relevant Letter of Credit) the
amount that may be demanded under that Letter of
Credit (or by such amount automatically reducing in
accordance with the terms of the relevant Letter of
Credit); or
(iii) cancelling that Letter of Credit by returning the
original to the Issuing Bank together with written
confirmation (in form and substance satisfactory to
the Issuing Bank) from the beneficiary that the
Issuing Bank has no further liability under that
Letter of Credit.
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2. THE COMMITMENTS
2.1 THE FACILITIES
The Banks, relying upon each of the representations and warranties in
clause 9 and upon and subject to the conditions hereof, agree to make
available:
(a) to the Primary Borrower, the Acquisition Facility in the
principal sum of L.1,775,000,000;
(b) to the Primary Borrower, the Interim Facility in the principal
sum of L.1,150,000,000;
(c) to the Revolving Credit Facility Borrowers, the Revolving
Credit Facility in the principal sum of L.700,000,000
(including the stand-alone facility for REC provided for in
clause 24.5).
The obligations of each Bank under this Agreement shall be to
participate in each Advance in the proportion which its Commitment in
respect of the relevant Facility bears to the Total Commitments in
respect of the relevant Facility but so that no Bank shall be under
any obligation to participate in an Advance if and to the extent its
Commitment in respect of the relevant Facility would thereby be
exceeded.
2.2 FINANCE PARTIES' OBLIGATIONS SEVERAL
The obligations of each Finance Party under this Agreement are
several; the failure of any Finance Party to perform such obligations
shall not relieve any other Finance Party or any Borrower of any of
their respective obligations or liabilities under this Agreement nor
shall any Finance Party be responsible for the obligations of any
other Finance Party under this Agreement.
2.3 FINANCE PARTIES' INTERESTS SEVERAL
Notwithstanding any other term of this Agreement (but without
prejudice to the provisions of this Agreement relating to or requiring
action by the Majority Banks) the interests of the Finance Parties are
several and the amount due to each of the Finance Parties (for its own
account) is a separate and independent debt. Without prejudice to any
other provision of this Agreement (including any requirement for
action to be approved or instigated by, or with the consent or
approval of, the Majority Banks) each of the Finance Parties shall
have the right to protect and enforce its rights to amounts which have
become due and payable to it under this Agreement and it shall not be
necessary for any other Finance Party to be joined as an additional
party in any proceedings for this purpose.
3. THE CONDITIONS
3.1 DOCUMENTS AND EVIDENCE
No Advance may be made until the Unconditional Date and until the
Facility Agent, or its duly authorised representative, shall have
received the documents and evidence specified in Parts A and B of
Schedule 3, in each case in form and substance satisfactory to the
Facility Agent which the Facility Agent shall, once it is so
satisfied, confirm in writing to the Primary Borrower.
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3.2 GENERAL CONDITIONS PRECEDENT
Subject to clause 3.3, in respect of each Facility, the obligation of
each Bank to contribute to an Advance is subject to the further
conditions that at the date of each Drawdown Notice and on each
Drawdown Date:
(a) the applicable representations and warranties set out in
clause 9 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
(b) no Default shall have occurred and be continuing or would
result from the making of such Advance,
but this clause 3.2(b) shall not prevent the rollover of an existing
Revolving Credit Advance (without increasing the amount thereof) for a
Maturity Period of no more than one month at any time when no Event of
Default has occurred and is continuing.
3.3 CONDITIONS RELATING TO OFFER ADVANCES DURING CERTAIN FUNDS PERIOD
To ensure that the Primary Borrower has resources available to advance
to Xxxxx 2 funds to on-lend to Bidco funds to enable Bidco to fulfil
its obligations in respect of the Offer, the Banks agree that, in
relation to each Offer Advance requested and to be advanced during the
Certain Funds Period, clause 3.2 shall not be applicable and subject
to satisfying the requirements of clause 3.1 and to providing the
appropriate Drawdown Notice at the appropriate time in accordance with
this Agreement, the only further condition to the obligations of the
Banks to make such Offer Advance is that at the date of each Drawdown
Notice and on each Drawdown Date no Major Default shall have occurred
and be continuing or would result from the making of such Offer
Advance.
It is further confirmed, for the avoidance of doubt, that the
commitment in this clause 3.3 operates notwithstanding any contrary
provisions of the Finance Documents and that no Bank shall be entitled
to rescind this Agreement or to fail to contribute to an Offer Advance
where the conditions in clause 3.3 are fulfilled.
3.4 WAIVER OF CONDITIONS PRECEDENT
The conditions specified in this clause 3 are inserted solely for the
benefit of the Banks and may be waived on their behalf in whole or in
part and with or without conditions by the Facility Agent acting on
the instructions of the Majority Banks in respect of any Advance.
4. ADVANCES UNDER THE FACILITIES
4.1 THE ACQUISITION FACILITY
(a) Drawdown
Subject to the terms and conditions of this Agreement,
Acquisition Advances shall be made to the Primary Borrower
following receipt by the Facility Agent from the Primary
Borrower of an appropriately completed Drawdown Notice
relating to the Acquisition Facility not later than 11 a.m.
two Banking Days before the proposed Drawdown Date.
(b) Amount
Each Drawdown Notice delivered pursuant to clause 4.1(a) shall
be irrevocable and specify:
(i) the proposed Drawdown Date, which shall be a Banking
Day prior to the relevant Available Commitment
Termination Date;
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(ii) the amount of the proposed Advance, which shall be of
L.10,000,000 (or any larger sum which is an integral
multiple of L.5,000,000) or, if less, the Available
Facility Amount in respect of the Acquisition
Facility or the Interim Facility (as the case may be)
on the relevant Drawdown Date;
(iii) subject to clause 4.1(c), the first Interest Period
relating to the Advance in question (in the case of
the Acquisition Facility, (being a period of 1, 2, 3
or 6 months or such other duration as the Primary
Borrower and the Banks may agree, and in the case of
the Interim Facility being one month) will begin on
the proposed Drawdown Date and end on a Banking Day
which is or precedes the Final Repayment Date (and in
the case of Interim Advances, the relevant Available
Commitment Termination Date); and
(iv) the account to which the proceeds of the proposed
Advance are to be paid.
There shall be no more than 10 Acquisition Advances and 10
Interim Advances outstanding at any time and not more than one
Acquisition Advance and/or Interim Advance may be made in any
period of 5 consecutive Banking Days.
(c) Interest Periods at time of syndication
The Primary Borrower shall until the Syndication Date select
one month Interest Periods or such other periods as the
Facility Agent and the Primary Borrower agree as being
necessary to effect the transfer of participations following
syndication.
(d) Acquisition Facility
No Interim Advances shall be made unless and until the
Acquisition Facility has been drawn down in full.
(e) Loan Note Obligations
If the Loan Note Obligations as at the Available Commitment
Termination Date for the Acquisition Facility are in excess of
L.50,000,000, the Loan Note Facility shall be available until
the Final Repayment Date and Advances may be drawn down by the
Primary Borrower from time to time under the Loan Note
Facility to be on-lent to Xxxxx 2 to be used by it to on-lend
to Bidco to be used to fund Loan Note Obligations. To the
extent that, by reason of the minimum drawdown requirements
set out above, an Advance drawn down under the Loan Note
Facility exceeds the then outstanding Loan Note Obligations,
any excess shall be retained by the Primary Borrower and paid
into the Loan Note Collateral Account which shall be a blocked
account maintained by the Security Agent. To the extent that
the aggregate Loan Note Obligations as at the Available
Commitment Termination Date for the Acquisition Facility are
not in excess of L.50,000,000 the Loan Note Facility shall not
come into existence, but Advances may be drawn down by the
Primary Borrower under the Acquisition Facility or if there is
no further available Commitment under that Facility, under the
Interim Facility to be on-lent to Xxxxx 2 to be used by it to
on-lend to Bidco to be used to fund Loan Note Obligations.
Any Advance drawn down under the Acquisition Facility or
Interim Facility shall be drawn down by the Primary Borrower
and paid into the Loan Note Collateral Account. The Security
Agent shall permit the Primary Borrower to draw amounts from
the Loan Note Collateral Account from time to time:
(i) to the extent of Loan Note Obligations then due, to
be on-lent to Xxxxx 2 to be used by it to on-lend to
Bidco to be used by Bidco to fund such Loan Note
Obligations; provided that
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(ii) at the relevant time, no Event of Default shall have
occurred which has not been remedied or waived to the
reasonable satisfaction of the Security Agent.
The Loan Note Collateral Account shall not be a trust account
and sums standing to its credit from time to time shall be
charged by way of fixed charge under the Debenture and
available to the Security Agent by way of security.
(f) Cancellation on Available Commitment Termination Date
If there is any Available Facility Amount outstanding in
relation to the Acquisition Facility or the Interim Facility
on the Available Commitment Termination Date in respect of
such Facility, such Available Facility Amount (other than the
Loan Note Facility as at such date) shall thereupon be
automatically cancelled and no further Advance may be made
under the Acquisition Facility or the Interim Facility other
than the Loan Note Facility. If a Loan Note Facility has not
been established, the Primary Borrower may draw down on the
Acquisition Facility or, if it has been drawn down in full the
Interim Facility on the day before the relevant Available
Commitment Termination Date to fund the Loan Note Collateral
Account with sufficient funds to meet its actual or contingent
Loan Note Obligations as at such date.
4.2 THE REVOLVING CREDIT FACILITY
(a) Drawdown
Subject to the terms and conditions of this Agreement, and to
the prior delivery of a notice of cancellation of the
agreement dated 5th August 1996 between the Target and
Citibank International plc as agent, Barclays Bank PLC and
Midland Bank plc so that it is no longer available for
drawing, Revolving Advances shall be made to the relevant
Revolving Credit Facility Borrower following receipt by the
Facility Agent from such Borrower of an appropriately
completed Drawdown Notice relating to the Revolving Credit
Facility not later than 11 a.m. two Banking Days before the
proposed Drawdown Date (which, in respect of the first
Revolving Advance to be made for the purpose of refinancing
certain Target Group Borrowed Money will be the Unconditional
Date).
(b) Amount
Each Drawdown Notice delivered to the Facility Agent pursuant
to clause 4.2(a) shall be irrevocable and shall specify:
(i) the proposed Drawdown Date, which shall be a Banking
Day falling prior to the Available Commitment
Termination Date;
(ii) the amount of the Revolving Advance, which shall be
of L.10,000,000 or any larger sum which is an
integral multiple of L.5,000,000 or, if less, the
Available Facility Amount in respect of the Revolving
Credit Facility on the relevant Drawdown Date;
(iii) the Maturity Period which shall be of 1, 2, 3 or 6
months (or such other period as the Facility Agent,
acting on the instructions of the Majority Banks,
shall agree) ending not later than the Final
Repayment Date;
(iv) the account to which the proceeds of the proposed
Advance are to be paid.
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(c) Number of Advances
There shall be no more than 10 Revolving Advances outstanding
at any time, and not more than one Revolving Advance may be
made in any period of 5 consecutive Banking Days.
(d) First drawdown
No Revolving Advance may be made unless and until the first
Acquisition Advance could have been drawn down (but for the
delayed settlement of acceptances of the Offer).
(e) Calculation of Available Commitment
For the purpose of calculating the Available Commitment, the
Outstanding Contingent Liabilities under a Letter of Credit
will initially be its Sterling Amount on the Issue Date,
subject to recalculation by the Facility Agent in accordance
with the definition of "Sterling Amount" and clause 4.11
(Currency Fluctuations).
(f) Cancellation on the Available Commitment Termination Date
Without prejudice to any other provision of this Agreement,
the Total Commitments under the Revolving Credit Facility
shall in any event be reduced to zero on the Available
Commitment Termination Date in respect of such Facility and no
Advance may be drawn by the Revolving Credit Facility
Borrowers under the Revolving Credit Facility thereafter.
4.3 ISSUE OF LETTERS OF CREDIT
Subject to the provisions of this Agreement, the Issuing Bank will
Issue a Letter of Credit specified in a Drawdown Notice at the request
of a Revolving Credit Facility Borrower, if the Agent has received the
Drawdown Notice for a Letter of Credit in the form set out in Part C
of Schedule 2 (Letters of Credit) signed on behalf of that Borrower
not later than 11.00 am five Banking Days prior to the proposed Issue
Date: and
(a) the proposed Issue Date is a Banking Day on or before the
Final Repayment Date;
(b) the face value of each Letter of Credit is a minimum Sterling
Amount of L.1,000,000;
(c) the Expiry Date falls on or before the earlier of 12 months
from the Issue Date and the Final Repayment Date;
(d) the Issuing Bank and (if different) the Facility Agent has
agreed its terms;
(e) the Sterling Amount of the Letter of Credit requested does not
exceed the Available Facility Amount in respect of the
Revolving Credit Facility;
(f) after such Issue, there will be no more than ten Letters of
Credit outstanding;
(g) no order, judgment or decree of any Governmental Entity or
arbitrator shall be outstanding which by its terms purports to
enjoin or restrain the Issuing Bank from Issuing such Letter
of Credit, nor shall any requirement of law applicable to the
Issuing Bank or any request or directive (whether or not
having the force of law) from any Governmental Entity with
jurisdiction over the Issuing Bank prohibit, or request that
the Issuing Bank refrain from, the Issuance of Letters of
Credit generally or such Letter
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of Credit in particular or shall impose upon the Issuing Bank
with respect to such Letter of Credit any restriction, reserve
or capital requirement (for which the Issuing Bank is not
otherwise compensated hereunder and which is not in effect on
the date of this Agreement), or shall impose upon the Issuing
Bank any unreimbursed loss, cost or expense which was not
applicable on the date of this Agreement and which the Issuing
Bank in good xxxxx xxxxx material to it;
(h) the currency in which the relevant Letter of Credit is to be
denominated is, in the opinion of the Issuing Bank, not likely
to be subject to undue fluctuation against Sterling and is
likely to be freely convertible and available in sufficient
amounts to enable the Issuing Bank to discharge its
obligations as they fall due;
(i) the Issuing Bank has approved (and been approved by) the
relevant beneficiary; and
(j) the total Sterling Amount of all Outstanding Contingent
Liabilities under all Letters of Credit then outstanding would
not exceed L.250,000,000.
4.4 ADVANCES GENERALLY
(a) A Drawdown Notice (or notice purporting to be such) shall only
be effective if it complies with this Agreement and only upon
actual receipt by the Facility Agent and, once given, shall be
irrevocable.
(b) As soon as practicable after receipt of each Drawdown Notice
complying with this Agreement the Facility Agent shall notify
each Bank of such receipt and of the date on which the
proposed Advance is to be made and of the relevant Interest
Period or, as the case may be, the relevant Maturity Period
and each Bank shall on such Drawdown Date or, the case may be,
on the first day of the relevant Interest Period participate
in such Advance by making available to the Facility Agent its
portion of such Advance in accordance with clause 8.2.
4.5 APPLICATION OF PROCEEDS
Without prejudice to the Borrowers' obligations under clause 10.2(a),
none of the Finance Parties shall have any responsibility for the
application of the proceeds of any Advance by any Borrower.
4.6 LETTERS OF CREDIT
(a) Issuing Bank as principal: the Issuing Bank will act as
principal of each Letter of Credit Issued by it and each Bank
will counter-indemnify the Issuing Bank in respect of the
Outstanding Contingent Liabilities thereunder in the relevant
Proportion;
(b) Borrowers' Authorisation and Indemnity: each Borrower
unconditionally and irrevocably:
(i) authorises the Issuing Bank to comply with any demand
which appears to be duly made by a third party in
respect of a Letter of Credit without any further
reference to the relevant Borrower on the terms set
out in Schedule 7 (Terms of Borrowers' Indemnity);
(ii) agrees that its authorisation under clause 4.6(b)(i)
and its indemnity under clause 4.6(b)(iv) shall
remain in full force and effect and shall not be
discharged until such date as the Facility Agent
(acting on the instructions of the Issuing Bank)
shall notify the relevant Borrower that it is
satisfied (acting reasonably) that the Issuing Bank
remains under no liability (actual or contingent) in
respect of any Letter of Credit;
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(xxx) agrees that each Letter of Credit is Issued subject
to and with the benefit of the provisions of Schedule
7 (Terms of Borrowers' Indemnity); and
(iv) if a Finance Party suffers any liabilities, damages,
costs, expenses, losses and charges whatsoever in
relation to or arising out of any Letter of Credit
Issued or clause 4.7 (Banks' Guarantee and
Indemnity), the benefit of Schedule 7 (Terms of
Borrowers' Indemnity) shall extend to such Finance
Party. A Borrower may finance a payment under such
indemnity by drawing down a Revolving Advance if it
is then entitled to do so in accordance with the
terms of this Agreement.
4.7 BANKS' GUARANTEE AND INDEMNITY
Each Bank hereby irrevocably and unconditionally:
(a) subject to clause 4.7(b), guarantees to and indemnifies on the
terms set out in Schedule 8 (Terms of Interbank Guarantee and
Indemnity) the Issuing Bank severally in its Proportion and on
demand by the Issuing Bank, the due and punctual performance
by any relevant Borrower of all its obligations in respect of
each Letter of Credit Issued by the Issuing Bank;
(b) if it is not permitted by its constitutional documents or any
applicable law to grant guarantees, agrees that, upon any
failure of a relevant Borrower to make timely payment of any
amount due in respect of a Letter of Credit, such Bank shall
take (and upon the occurrence of an Event of Default specified
in clauses 12.1(e) to (n) (Events of Default) (or any event
occurs which under the applicable law of any relevant
jurisdiction has an analogous, similar or equivalent effect to
any such events) shall be deemed to have taken without any
further action, as of the Issue Date of each outstanding
Letter of Credit), an undivided participating interest from
the Issuing Bank in each Letter of Credit outstanding at such
time in a proportion equal to such Bank's Proportion. Each
Bank shall hold the Issuing Bank harmless and indemnify the
Issuing Bank for such Bank's proportionate share of any
drawing under any Letter of Credit in which it has taken an
undivided participating interest under this clause 4.7;
(c) as a separate and independent stipulation agrees that any sum
of money intended to be the subject of the guarantee in clause
4.7(a), and subject to clause 4.7(b) and Schedule 8 (Terms of
Interbank Guarantee and Indemnity), shall be recoverable from
it (in its Proportion) as sole principal debtor even if such
sum would not be recoverable from any relevant Borrower by
reason of any legal limitation, disability or incapacity or
liquidation of any of them or any other fact or circumstance
(whether known to the Issuing Bank or not) but which would
have been recoverable from such Bank if it were the sole or
principal debtor in respect of such liability in place of any
such Borrower;
(d) if it ceases to have the Minimum Rating as defined in clause
16.5, to lodge forthwith with the Security Agent cash cover as
security for its indemnity obligations in the same amount as
if it had been, on that date, a Substitute.
4.8 CALCULATION OF INTEREST IF BANK MAKES A GUARANTEE OR INDEMNITY PAYMENT
Any payment made or to be made by a Bank pursuant to clause 4.7
(Banks' Guarantee and Indemnity) and any unreimbursed amount on the
part of the Issuing Bank shall (for the purpose of calculating
interest thereon which is due from the relevant Borrower) be deemed to
have been made available to that Borrower by way of a Revolving
Advance on the date such payment is made or is to be made (or
reimbursed) and accordingly is subject to the terms and conditions
hereof and, after the earliest date on which a Revolving Advance could
have
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been drawn down to fund such liability, such amount shall be treated
as if it were an overdue sum with an initial term of one month but
(for all other purposes) shall be immediately due and payable by the
relevant Borrower.
4.9 DEFAULTING BANKS
If a Bank (a "DEFAULTING BANK") fails to make payment on its due date
of any amount (an "OVERDUE AMOUNT") due from it for the account of the
Issuing Bank pursuant to clause 4.7 (Banks' Guarantee and Indemnity)
then until the Issuing Bank (or the Agent on its behalf) has received
payment of such overdue amount in full (and without prejudice to any
other rights or remedies of the Issuing Bank in respect of such
failure):
(a) the Issuing Bank shall be entitled to receive any remuneration
which such Defaulting Bank would otherwise have been entitled
to receive in respect of the Revolving Credit Facility; and
(b) the overdue amount shall bear interest at the rate of one per
cent per annum over LIBOR plus the Additional Cost for the
time being from the due date until the date of payment and any
such interest which accrues shall be compounded monthly.
4.10 SUBROGATION OF BANKS MAKING GUARANTEE PAYMENTS
(a) Each Obligor agrees that if any Bank makes any payment under
clause 4.7 (Banks' Guarantee and Indemnity) it will
immediately be subrogated to any rights that the Issuing Bank
may then have against the relevant Borrower in respect of the
amount paid and such subrogation will be subject to the terms
set out in Schedule 7 (Terms of Borrowers' Indemnity).
(b) Each Obligor agrees to indemnify the Bank making such a
payment in respect of such payment and all costs and expenses
properly incurred by the Bank in recovering or attempting to
recover any amount pursuant to such rights of subrogation.
4.11 CURRENCY FLUCTUATIONS
In addition and without prejudice to the Banks' other rights
hereunder, the Facility Agent shall on every Quarter Date (and at any
other time at which it is requested to do so by the Majority Banks)
calculate the aggregate of the Sterling Amounts of all Outstanding
Contingent Liabilities under all Letters of Credit then outstanding.
4.12 CLAWBACK
If the Facility Agent at any time issues a certificate addressed to
the Primary Borrower that in its opinion the aggregate of the Sterling
Amounts of Outstanding Contingent Liabilities under all Letters of
Credit then outstanding is equal to or exceeds 105% of the aggregate
amount of the Banks' Commitments under the Revolving Credit Facility
less the amount of all outstanding Revolving Advances at that time,
the Agent may give notice to the Primary Borrower requiring it within
five Banking Days either to:
(a) make arrangements to repay Revolving Advances and/or reduce
the amount of the Letters of Credit outstanding so as to bring
the Sterling Amount of all such Outstanding Contingent
Liabilities to an amount equal to or below 100% of that
aggregate amount; or
(b) provide the Issuing Bank with cash cover in the currency in
which any Letter of Credit is denominated of such amount as
would cause the requirements of this clause 4.12 to be
satisfied.
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4.13 CASH COVER
Where cash cover is provided by an Obligor under clause 4.12
(Clawback) or otherwise under this Agreement, the Issuing Bank or
other recipient Bank undertakes to place the relevant cash deposit in
an account with it (subject to such security arrangements as the
Facility Agent may specify) bearing interest at a rate and on the
standard terms (other than as to the security arrangements) applicable
to corporate customers of such Bank making deposits of an equivalent
size and for an equivalent duration (or on such other terms as such
Bank and the relevant Obligor may agree). Interest accruing on cash
deposited as cash cover shall be for the account of and paid to such
Obligor but shall not be paid to any Obligor during the continuance of
an Event of Default.
5. INTEREST AND INTEREST PERIODS
5.1 INTEREST ON THE ACQUISITION ADVANCES AND INTERIM ADVANCES
The Primary Borrower shall pay interest on each Acquisition Advance
and Interim Advance in respect of each Interest Period on the relevant
Interest Payment Date (or, in the case of Interest Periods of more
than six months, by instalments, every six months from the
commencement of the relevant Interest Period and on the relevant
Interest Payment Date) at the rate per annum determined by the
Facility Agent to be the aggregate of (a) the Applicable Margin, (b)
the Additional Cost and (c) LIBOR.
5.2 INTEREST PERIODS FOR THE ACQUISITION ADVANCES AND INTERIM ADVANCES
(a) The Primary Borrower may by notice received by the Facility
Agent not later than 11 a.m. on the second Banking Day before
the beginning of each Interest Period in respect of each
Acquisition Advance specify whether such Interest Period shall
have a duration of 1, 2, 3 or 6 months (or such other period
as the Facility Agent, acting on the instructions of the
Majority Banks, may agree). All Interest Periods for the
Interim Facility shall have a duration of one month, save as
provided in (b) below.
(b) Every Interest Period in respect of each Acquisition Advance
and Interim Advance shall be of the duration specified by the
Primary Borrower pursuant to clause 5.2(a) but so that:
(i) the initial Interest Period in respect of each such
Advance will commence on the relevant Drawdown Date
and each subsequent Interest Period in respect of
each such Advance shall commence on the date of the
expiry of the previous Interest Period, and until the
Syndication Date the provisions of clause 4.1(c)
shall apply to the selection of Interest Periods;
(ii) if otherwise there would be more than 10 Acquisition
Advances or 10 Interim Advances outstanding with
different Interest Payment Dates, the Primary
Borrower shall select Interest Periods for such
Advances ending on the same day as the then current
Interest Period for another such Advance and on the
last day of such Interest Period, such Advances shall
be consolidated into and shall thereafter constitute
a single Advance;
(iii) if any Interest Period in respect of an Acquisition
Advance would otherwise overrun the Final Repayment
Date or the date the First Repayment is due, such
Interest Period shall end on such date;
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(iv) if any Interest Period in respect of an Interim
Advance would otherwise overrun the Available
Commitment Termination Date for the Interim Facility,
it shall end on such Available Commitment Termination
Date; and
(v) if the Primary Borrower fails to select the duration
of an Interest Period in respect of an Advance in
accordance with the provisions of clause 5.2(a) and
this clause 5.2(b) such Interest Period shall have a
duration of 3 months or such other period as shall
comply with this clause 5.2(b) selected at the
Facility Agent's sole discretion.
5.3 INTEREST UNDER THE REVOLVING CREDIT FACILITY
The relevant Revolving Credit Facility Borrower shall pay interest on
each Revolving Advance on its Maturity Date (or, in the case of a
Revolving Advance having a Maturity Period of more than six months, by
instalments, every six months from the relevant Drawdown Date and on
the relevant Maturity Date) at the rate per annum determined by the
Facility Agent to be the aggregate of (i) the Applicable Margin, (ii)
the Additional Cost and (iii) LIBOR.
5.4 INTEREST ON UNPAID SUMS
(a) If any Borrower fails to pay any sum (including, without
limitation, any sum payable pursuant to this clause 5.4) on
its due date for payment under this Agreement such Borrower
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 pursuant to this clause
5.4.
(b) The period beginning on the due date for payment and ending on
the date of actual payment shall be divided into successive
periods of not more than three months as selected by the
Facility Agent (after consultation with the Banks so far as
reasonably practicable in the circumstances) each of which
(other than the first, which shall commence on such due date)
shall commence on the last day of the preceding such period
but so that if the unpaid sum is an amount of principal which
shall have become due and payable prior to the next succeeding
Interest Payment Date relating thereto or, as the case may be,
prior to the relevant Maturity Date, then the first such
period selected by the Facility Agent shall end on such
Interest Payment Date or, as the case may be, such Maturity
Date.
(c) The rate of interest applicable to each period referred to in
clause 5.4(b) shall (subject to clause 5.6) be the aggregate
(as determined by the Facility Agent) of (i) one per cent per
annum, (ii) the Applicable Margin (iii) the Additional Cost
and (iv) LIBOR but so that if the unpaid sum is an amount of
principal (as referred to in clause 5.4(b)) interest shall be
payable on such unpaid sum during the first period determined
pursuant to clause 5.4(b) at a rate one per cent above the
rate applicable thereto immediately before it fell due.
(d) Interest under this clause 5.4 shall be due and payable on the
last day of each period determined by the Facility Agent
pursuant to this clause 5.4 or, if earlier, on the date on
which the sum in respect of which such interest is accruing
shall actually be paid or on such date or other dates which
the Facility Agent may specify by written notice to the
Primary Borrower (but not more frequently than once a month).
Any interest payable under this clause 5.4 which is not paid
when due shall be deemed an unpaid sum and shall itself bear
interest accordingly.
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5.5 NOTIFICATION OF INTEREST PERIODS AND INTEREST RATE
The Facility Agent shall notify the Primary Borrower (who shall notify
any other relevant Borrower) and the Banks promptly of the duration of
each Interest Period, Maturity Period or other period for the
calculation of interest (or, as the case may be, default interest) and
of each rate of interest determined by it under this clause 5.
5.6 ALTERNATIVE INTEREST RATES
If:
(a) in attempting to calculate LIBOR under paragraph (b) of the
definition of LIBOR for a specified period the Facility Agent
determines at 11.00 a.m. (London time) on the Quotation Date
that it is unable to obtain quotations for LIBOR from any of
the Reference Banks in respect of the relevant Advance or
unpaid sum for the specified period; or
(b) before its close of business on such day, the Facility Agent
has been notified in writing by a Bank or group of Banks to
which 35% or more of the relevant Advance or unpaid sum is
(or, if the relevant Advance were made, would then be) owed
that LIBOR calculated in accordance with its definition in
this Agreement does not accurately reflect the cost to them of
funding their participation; or
(c) the Facility Agent, acting reasonably, determines that, by
reason of circumstances affecting the London inter-bank
market, adequate and fair means do not or will not exist for
determining the rate of interest applicable to the specified
period,
then:
(i) the Facility Agent shall promptly notify in writing
the Primary Borrower and the Banks of such event or
circumstance;
(ii) the Facility Agent (on behalf of and after
consultation with the Banks) shall, within three
Banking Days of such notice, negotiate with the
Primary Borrower with a view to agreeing a substitute
basis on which the relevant part of the Facility may
be maintained;
(iii) any substitute basis agreed in writing by the
Facility Agent (on behalf of and with the consent of
all the Banks) and the Primary Borrower within 30
days of such notice shall take effect in accordance
with its terms and interest shall be calculated as if
the substitute basis had come into effect from the
beginning of the relevant specific period;
(iv) in default of agreement within 30 days, each Bank's
participation in the Advance or unpaid sum (if any)
shall during that specific period bear interest at
the annual rate equal to the cost to that Bank (as
certified by it to the Primary Borrower within ten
days of the end of that 30 day period and expressed
as a percentage rate per annum) of funding its
participation during that specific period by whatever
means that Bank determines to be most appropriate
plus the Applicable Margin and the Additional Cost
and if clause 5.4 (Interest on unpaid sums) applies,
a further one per cent.
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6. REPAYMENT, PREPAYMENT, CANCELLATION AND REDUCTIONS
6.1 REPAYMENT OF THE ACQUISITION AND INTERIM ADVANCES
The Primary Borrower shall repay in full:
(a) Acquisition Advances
all outstanding Acquisition Advances on the following dates
and in the following amounts:
DATE AMOUNT (L.)
Second anniversary of the date 600,000,000 (less
of this Agreement voluntary prepayments
previously made)
(the "First Repayment")
Final Repayment Date All remaining Acquisition
Advances outstanding
(the "Final Repayment")
(b) Interim Advances
all outstanding Interim Advances on the Available Commitment
Termination Date of the Interim Facility.
6.2 MANDATORY REPAYMENT EQUAL TO COAL PROCEEDS
(a) On the Available Commitment Termination Date of the Interim
Facility the Primary Borrower shall prepay outstanding
Acquisition Advances in an amount equal to the product of the
Coal Proceeds and the fraction of the share capital of the
Target acquired by Bidco at such date less the amount of the
Interim Advances repaid under clause 6.1(b).
(b) Amounts repaid and/or prepaid in accordance with this clause
6.2 shall be applied in accordance with clause 6.6(c).
6.3 REPAYMENT OF REVOLVING ADVANCES
The relevant Revolving Credit Facility Borrower shall repay each
Revolving Advance in full on its Maturity Date but, subject to the
terms of this Agreement, amounts repaid may be reborrowed.
On the Final Repayment Date the balance of all outstanding Revolving
Advances shall in any event be repaid in full and may not be
reborrowed.
6.4 OPTIONAL PREPAYMENT OF ALL THE BANKS
The relevant Borrower may, subject to clause 6.6, prepay:
(a) an Acquisition Advance or an Interim Advance in whole or part
(if in part, being L.10,000,000 or any larger sum which is an
integral multiple of L.5,000,000) on the next succeeding
Interest Payment Date in respect of such Advance or, together
with any relevant amounts payable pursuant to clause 13.1, any
other Banking Day, Provided that in prepaying such Advance,
the Banks to whom such Advance is owing are prepaid on a pro
rata basis;
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(b) Revolving Advances in whole (but not in part) together with
any relevant amounts payable pursuant to clause 13.1.
6.5 AFFECTED BANKS
(a) The relevant Borrower may and, where required under this
Agreement shall prepay (in whole but not in part only),
without premium or penalty, subject to clause 6.6, the whole
of the Contributions to all the Facilities of any Affected
Bank. Upon any such notice of such prepayment being given, or
as provided for in clause 14.1, the Commitments of the
relevant Bank to all the relevant Facilities shall be reduced
to zero and the undrawn amount of the Total Commitments in
respect of all the Facilities shall be reduced accordingly.
(b) Instead of or, in addition to, its rights under clause 6.5(a)
the relevant Borrower may on payment of the fee under clause
16.5, without prejudice to clause 14.4, require the Affected
Bank to transfer pursuant to clause 16.5 at par all of its
Commitments and Contributions to a Qualifying Bank nominated
by the Borrower provided that the relevant Qualifying Bank
agrees (in its absolute discretion) to accept the transfer to
it and, in the case of clause 14.1, that Bank is lawfully able
to do so and the transfer is to take effect prior to the
prepayment date specified by the Facility Agent thereunder.
6.6 PREPAYMENTS GENERALLY
(a) No prepayment may be made pursuant to clauses 6.2, 6.4 or 6.5
unless the Primary Borrower shall have given the Facility
Agent 5 Banking Days prior notice (or in the case of a
prepayment pursuant to clause 14.1 such notice as is required
under clause 14.1) specifying the proposed date of the
prepayment and the amount to be prepaid. Every such notice
shall be effective only on actual receipt by the Facility
Agent, shall be irrevocable and shall oblige the relevant
Borrower to make the relevant prepayment on the date
specified.
(b) No amount of the Acquisition Facility or the Interim Facility
which is repaid or prepaid may be reborrowed.
(c) Prepayments (other than under clause 6.5) shall be applied in
the following order:
(i) against outstanding Interim Advances;
(ii) against outstanding Acquisition Advances, in inverse
order of maturity save that:
(aa) prepayments of Coal Proceeds under Clause
6.2(a) shall be applied against the First
Repayment and thereafter against the Final
Repayment; and
(bb) voluntary prepayments shall be applied first
against the First Repayment and thereafter
against the Final Repayment;
(iii) in repayment of outstanding Revolving Advances and in
permanent reduction of the Revolving Credit Facility;
(iv) to provide cash cover for the Outstanding Contingent
Liabilities under the Revolving Credit Facility.
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(d) All prepayments shall be made together with (to the extent
these relate to the amounts prepaid) (i) accrued interest to
the date of prepayment; (ii) any additional amount payable
under clauses 8.5 or 14.2; and (iii) all other sums payable by
the Borrower to the relevant Banks under this Agreement
including, without limitation, any accrued commitment
commission payable under clause 7.2, any Letter of Credit
commission and fees under clause 7.3, expenses under clause
7.4 and any amounts payable under clause 13.1.
(e) No Borrower shall prepay all or any part of an Advance
outstanding hereunder except at the times and in the manner
expressly provided herein.
6.7 CANCELLATION OF THE FACILITIES
The Primary Borrower may at any time prior to the Available Commitment
Termination Date in respect of the relevant Facility by notice to the
Facility Agent (effective only on actual receipt) cancel with effect
from a date not less than 10 Banking Days after the receipt by the
Facility Agent of such notice the whole or any part (if in part, being
L.10,000,000 or any larger sum which is an integral multiple of
L.5,000,000) of the Available Facility Amount of the relevant
Facility, in each case which is not the subject of a Drawdown Notice
at such time. Such notice shall specify the Facility to which it
refers, the date upon which such cancellation is to be made and the
amount of such cancellation. Any such notice of cancellation, once
given, shall be irrevocable and upon such cancellation taking effect
the Commitments of the Banks in respect of the relevant Facility shall
be reduced accordingly (pro-rata their respective Commitments in
respect of the relevant Facility).
6.8 TERMINATION
The Commitment of each Bank shall be automatically cancelled and
reduced to zero at the close of business in London on the relevant
Available Commitment Termination Date or, if it occurs, the
Cancellation Date.
7. FEES AND EXPENSES
7.1 ARRANGEMENT, UNDERWRITING, PARTICIPATION AND AGENCY FEES
The Primary Borrower shall pay to the Facility Agent or shall procure
that there is paid, whether or not any part of the Commitments is ever
advanced:
(a) on the date of this Agreement, for the account of the
Arrangers, fees of an amount agreed between the Primary
Borrower and the Arrangers in a letter dated on or about the
date of this Agreement;
(b) on the date of this Agreement and on each anniversary thereof
until the end of the Finance Period, for the account of the
Facility Agent, an agency fee and for the account of the
Security Agent, a security agency fee, in each case of an
amount agreed between the Primary Borrower and the Facility
Agent in a letter dated on or about the date of this
Agreement.
7.2 COMMITMENT FEES
The Primary Borrower shall pay to the Facility Agent, whether or not
any part of the Commitments is ever advanced, from the date of this
Agreement on each Fee Payment Date after the date of this Agreement
and on the Available Commitment Termination Date in respect of each
Facility (or the Cancellation Date if earlier), for the account of
each of the Banks (pro-rata their respective Commitments for the
relevant Facility), commitment commission computed in arrears at the
Applicable Fees Rate on the daily amount by which the Total
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Commitments in respect of the relevant Facility exceeds the aggregate
of the Contributions in respect of the relevant Facility. Accrued
commitment commission will also be payable on the amount of any
Commitment when cancelled on the date of its cancellation.
7.3 LETTER OF CREDIT FEES
(a) Each relevant Borrower shall (on the dates set out in clause
7.3(c)) pay commission in Sterling to the Facility Agent for
the account of the Banks (in their respective Proportions) on
the Issue of any Letter of Credit requested by such Borrower
in Sterling at a percentage rate per annum equal to the
Applicable Margin on the Sterling Amount of the Outstanding
Contingent Liabilities under such Letter of Credit calculated
in each case on the date of Issue and recalculated on each
Quarter Date from the Issue Date of such Letter of Credit
until the earlier of its Expiry Date or such date as the
Issuing Bank and the Banks have ceased to be under any
liability (actual or contingent) in respect thereof, and on
the basis of a 365 day year. If the relevant Borrower has
provided cash cover for any Letter of Credit, the percentage
rate per annum payable on cash covered amounts shall instead
be 0.25%.
(b) Each relevant Borrower shall pay a fronting fee to the
Facility Agent for the account of the Issuing Bank on the
Issue of any Letter of Credit at a rate of 0.2% per annum on
the Sterling Amount of the face amount of the relevant Letter
of Credit payable in advance on the date of Issue and on each
Quarter Date thereafter.
(c) The commission and fronting fee payable under clauses 7.3(a)
and 7.3(b) in respect of each Letter of Credit shall be paid
in advance on the relevant Issue Date and on each Quarter Date
in each year during the continuance of such Letter of Credit
(or if such day is not a Banking Day, on the preceding Banking
Day) commencing on the first Quarter Date falling on or after
the Issue of the relevant Letter of Credit. If a Letter of
Credit is terminated leaving no Outstanding Contingent
Liabilities before a Quarter Date, any commission paid in
advance for the period from the date of cancellation until the
next Quarter Date shall be repaid to the Borrower which made
the advance commission payment by set-off against any amounts
then due from the Borrower to any Finance Party or, if no such
amounts are due, by payment in cash.
(d) For the avoidance of doubt, the Issuing Bank's Proportion of
the commission at the rate and calculated in the manner
specified in clause 7.3(a) shall be payable to the Issuing
Bank in respect of its residual liability in its capacity as a
Bank, notwithstanding that it does not purport to guarantee
itself in its capacity as Issuing Bank.
(e) The Borrowers shall pay interest on the amount demanded and
outstanding under the indemnity given by them in respect of
Letters of Credit in accordance with clause 4.8 (Calculation
of Interest if Bank makes a Guarantee or Indemnity Payment) in
addition to the commission and other fees payable under this
Agreement in respect of the Revolving Credit Facility.
7.4 EXPENSES
The Primary Borrower shall reimburse the Arrangers, the Banks, the
Security Agent and the Facility Agent from time to time within three
Banking Days of demand:
(a) all reasonable costs and expenses (including without
limitation legal, printing and out-of-pocket expenses)
together with any VAT thereon incurred by the Facility Agent
and the Arrangers in connection with the negotiation,
preparation and execution of the Finance Documents and the
completion and syndication of the transactions therein
contemplated, and the negotiation, preparation
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and execution of any amendment or extension of, or the
granting of any waiver or consent under, any of the Finance
Documents; and
(b) without prejudice to the generality of (c) below, all expenses
and costs (including without limitation the fees and expenses
of lawyers, accountants, surveyors, valuers, environmental
consultants and other professional advisers and out-of-pocket
expenses) incurred by the Facility Agent in connection with
the obtaining of reports and/or advice and/or the undertaking
of investigations by or on behalf of the Facility Agent into
or concerning the Primary Borrower or the Group following the
occurrence of a Default and whilst it is continuing (or where
the Majority Banks' reasonable opinion is that a Default may
have occurred) and the Primary Borrower undertakes to give,
and to procure that its Subsidiaries give, all such reasonable
assistance (including, without limitation, access to its
and/or their properties and financial and other records) at
all times as the Facility Agent shall reasonably require for
the purpose of enabling such reports or advice to be prepared
or such investigations to be undertaken; and
(c) after a Default has occurred, all costs and expenses
(including without limitation legal and out-of- pocket
expenses) incurred by any of the Finance Parties in
contemplation of, or otherwise in connection with, the
enforcement or attempted enforcement of, or preservation or
attempted preservation of any rights under, any of the Finance
Documents, or otherwise in respect of the recovery, or
attempted recovery, of moneys owing under the same, together
with interest at the rate referred to in clause 5.4 from the
date on which such expenses were incurred to the date of
payment (as well after as before judgment).
7.5 VALUE ADDED TAX
All fees, costs and expenses payable pursuant to this clause 7 shall
be paid together with an amount equal to any VAT thereon payable by
any of the Finance Parties in respect of such fees and expenses.
7.6 STAMP AND OTHER DUTIES
The Primary Borrower shall pay all 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, and execution of any of
the Finance Documents and the syndication of the Facilities and shall
indemnify the Finance Parties against any liability arising by reason
of any delay or omission by the Primary Borrower to pay such duties or
Taxes.
8. PAYMENTS AND TAXES; ACCOUNTS AND CALCULATIONS
8.1 NO SET-OFF OR COUNTERCLAIM; DISTRIBUTION TO THE BANKS
All payments to be made by any Borrower under this Agreement shall be
made in full, without any set-off or counterclaim whatsoever and,
subject as provided in clause 8.5, free and clear of any deductions or
withholdings, in Sterling (except for costs, charges or expenses which
shall be payable in the currency in which they are incurred) 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. Save
where this Agreement provides for a payment to be made for the account
of a particular Finance Party or Finance Parties, in which case the
Facility Agent shall distribute the relevant payment to the relevant
Finance Party or Finance Parties concerned, payments to be made by any
Borrower under this Agreement shall be for the account of all the
Banks and the Facility Agent shall forthwith distribute such payments
in like funds as are received by the Facility Agent to the Banks
rateably for the account of such Banks' respective Facility Offices in
accordance with their Commitments or Contributions, as the case may
be.
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8.2 PAYMENTS BY THE BANKS
All sums to be advanced by the Banks to any Borrower under this
Agreement shall be remitted in Sterling in immediately available funds
not later than 11 a.m. on the relevant Drawdown Date or, as the case
may be, the first day of the relevant Interest Period to the account
of the Facility Agent at such bank as the Facility Agent may have
notified to the Banks and shall be paid by the Facility Agent on such
date to the account of the relevant Borrower in England specified in
the relevant Drawdown Notice.
8.3 NON-BANKING DAYS
When any payment under this Agreement would otherwise be due on a day
which is not a Banking Day, the due date for payment shall be
postponed to the next following Banking Day unless such Banking Day
falls in the next calendar month, in which case payment shall be made
on the immediately preceding Banking Day.
8.4 FACILITY AGENT MAY ASSUME RECEIPT
Where any sum is to be paid under this Agreement to the Facility Agent
for the account of another person, the Facility Agent may assume that
the payment will be made when due and may (but shall not be obliged
to) make such sum available to the person so entitled. 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 (and/or, as the case may be, the cost
to the relevant other person of not receiving such sum until) the date
of such repayment and the person by whom such sum was payable shall
indemnify the Facility Agent (or the relevant other person) for any
and all loss or expense which the Facility Agent (or the relevant
other person) may sustain or incur as a consequence of such sum not
having been paid on its due date together with any interest, expenses
and penalties payable or incurred in connection therewith.
8.5 GROSSING-UP FOR TAXES
If at any time any Borrower 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, or as the case may be, the Security Agent is required to make
any such deduction or withholding from a payment to a Finance Party),
the sum due from the relevant Borrower in respect of such payment
shall, subject to clause 8.6, be increased to the extent necessary to
ensure that, after the making of such deduction or withholding (and
any further deduction and withholding which may be levied on the
additional amounts paid by reason of this clause), each Finance Party
receives on the due date for such payment (and retains, free from any
liability in respect of such deduction or withholding) a net sum equal
to the sum which it would have received and so retained had no such
deduction or withholding been made or required to be made and (without
prejudice to the foregoing provisions of this clause 8.5) each
Borrower shall indemnify each Finance Party on demand by the Facility
Agent against any losses or costs incurred by any of them together
with any interest, expenses and penalties payable or incurred in
connection therewith by reason of any failure of such Borrower to make
any such deduction or withholding.
Each Borrower shall promptly deliver to the Facility Agent any
receipts, certificates or other proof evidencing the amounts (if any)
paid or payable in respect of any such deduction or withholding.
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8.6 QUALIFYING BANK
(a) If:
(i) any Bank is not or ceases to be a Qualifying Bank; and
(ii) as a result an Obligor is required to deduct or
withhold United Kingdom income tax in respect of
payments of interest to be made by such Obligor to
that Bank under any Finance Document or would
otherwise have been required to make an indemnity
payment or a greater indemnity payment under clause
8.5 or 14.2,
then such Obligor shall (as the case may be) not be liable to
pay under clause 8.5 in respect of any such payment of
interest any amount in excess of the amount it would have been
obliged to pay if such Bank were a Qualifying Bank, nor shall
it be liable to make an indemnity payment or a greater
indemnity payment under clause 8.5 or, as the case may be,
Clause 14.2 than would have been required if the aforesaid
Bank had been or had not ceased to be a Qualifying Bank
Provided that this Clause 8.6 shall not apply, and such
Obligor shall be obliged to comply with its obligations under
clause 8.5, or as the case may be 14.2, if on or after the
date hereof:
(aa) there shall have been any change in, or in the
official interpretation or application of, any
relevant law or the practice of the United Kingdom
Inland Revenue (or, in the case of a Treaty Lender,
any Government Entity in the country in which it is
resident for the purpose of the relevant double
taxation treaty) and as a result thereof the Bank is
not or ceases to be a Qualifying Bank, or
(bb) the Bank referred to in clause 8.6(a) has transferred
its Facility Office in respect of any Facility
outside the United Kingdom or has become a Bank
hereunder with a Facility Office outside the United
Kingdom in respect of any Facility, in each case,
with the consent of the Primary Borrower if and
insofar as required under this Agreement.
(b) A person intending to make a claim pursuant to clause 8.5
shall, promptly after such person becomes aware of the
circumstances giving rise to such claim and the amount of such
claim, deliver to the Primary Borrower through the Facility
Agent a certificate to that effect specifying the amount of
such claim and setting out in reasonable detail the basis of
such claim, provided that nothing shall require such person to
disclose any confidential information relating to the
organisation of its affairs.
(c) If at any time after the date of this Agreement any Bank is
aware that it is not or will cease to be a Qualifying Bank
(for whatever reason), it shall promptly notify the Primary
Borrower.
(d) A Treaty Lender will submit such claim to the appropriate
authorities (together with such forms, papers, other documents
and/or evidence as necessary) as may be required for the
Obligors to make payment of interest to such Treaty Lender on
its Advances free of withholding or deduction on account of
United Kingdom Tax. No Obligor will be liable to pay any
additional amount under clause 8.5 in respect of the
withholding or deduction on account of United Kingdom income
tax from any such interest unless such claim has been
submitted to those authorities promptly after that Treaty
Leader became a party to this Agreement as a Treaty Lender or
the proviso to clause 8.6(a) applies.
8.7 CLAW-BACK OF TAX BENEFIT
If following any such deduction or withholding as is referred to in
clause 8.5 any Finance Party determines in its sole discretion that it
has received or been granted a credit against or remission for any
Taxes payable by it, such Finance Party shall, subject to the relevant
Borrower having made any increased payment in accordance with clause
8.5 and subject to there not being any Default which is continuing,
and to the extent that such Finance Party can do so without
prejudicing the retention of the amount of such credit or remission
and without
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prejudice to the right of such Finance Party to obtain any other
relief or allowance which may be available to it, reimburse the
relevant 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 relevant Borrower as
aforesaid. Such reimbursement shall be made forthwith upon such
Finance Party certifying that the amount of such credit or remission
has been received by it, provided that the Finance Party shall be the
sole judge of the amount of any such benefit and of the date on which
it was received. Nothing contained in this Agreement shall interfere
with the right of any Finance Party to arrange its tax affairs in
whatever manner it thinks fit nor oblige any Finance Party to disclose
any information regarding its tax affairs and computations. Without
prejudice to the generality of the foregoing, no Borrower shall, by
virtue of this clause 8.7, be entitled to enquire about any Finance
Party's tax affairs or computations. The Finance Parties are under no
obligation to investigate whether any tax credit is available or to
claim any tax credit. Any amount paid by any Finance Party to a
Borrower under this clause shall be conclusive evidence of the amount
payable and will be accepted by the Borrower in full and final
settlement of its claim.
8.8 BANK ACCOUNTS
Each Bank shall maintain, in accordance with its usual practices, an
account or accounts evidencing the amounts from time to time lent by,
owing to and paid to it under this Agreement. The Facility Agent
shall maintain a control account showing the utilisation of the
Facilities and other sums owing by each Borrower under this Agreement
and all payments in respect thereof made by each Borrower from time to
time. In any legal action arising out of or in connection with the
Finance Documents the entries made in the accounts maintained pursuant
to this clause 8.8 shall, in the absence of manifest error, be
conclusive as to the amount from time to time owing by each Borrower
under this Agreement.
8.9 PARTIAL PAYMENTS
If:
(a) on any date on which a payment is due to be made by any
Borrower under this Agreement, the amount received by the
Facility Agent from such Borrower falls short of the total
amount of the payment due to be made by such Borrower on such
date; or
(b) on any date on which the Facility Agent receives any payment
from the Security Agent or otherwise receives any amount
representing proceeds of realisations or other recoveries
under any of the Security Documents, the amount of such
payment or other receipt falls short of the total amount owing
to the Finance Parties under this Agreement on such date then
(in any such case), without prejudice to any rights or
remedies available to the Finance Parties under any of the
Finance Documents, the Facility Agent shall apply the amount
actually received by it in or towards discharge of the
obligations of such Borrower under this Agreement in the
following order, notwithstanding any appropriation made, or
purported to be made, by such Borrower:
(i) first, in or towards payment, on a pro-rata basis, of
any unpaid costs and expenses of the Facility Agent,
Security Agent or the Arrangers under this Agreement;
(ii) secondly, in or towards payment to the Banks, on a
pro-rata basis, of any amount owing to the Banks
under clause 20.2;
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(iii) thirdly, in or towards payment to the Arrangers, on a
pro-rata basis, of any portion of the fees payable
under clause 7.1(a) which remains unpaid;
(iv) fourthly, in or towards payment to the Facility Agent
and the Security Agent, on a pro-rata basis, of any
portion of the fees payable under clause 7.1(b) which
remains unpaid;
(v) fifthly, in or towards payment to the Banks, on a
pro-rata basis, of any accrued commitment commission
payable under clause 7.2 which shall have become due
but remains unpaid;
(vi) sixthly, in or towards payment to the Banks, on a
pro-rata basis, of any accrued interest, Letter of
Credit commission and (in the case of the Issuing
Bank) Letter of Credit fronting fees or commission
which shall have become due but remain unpaid, but so
that any amount payable by virtue of clause 8.5 shall
be excluded;
(vii) seventhly, in or towards payment to the Banks, on a
pro-rata basis, of any principal which shall have
become due but remains unpaid;
(viii) eighthly, in or towards payment to any such Banks, on
a pro-rata basis, of any amount payable to any Banks
by virtue of clause 8.5 which remains unpaid; and
(ix) ninthly, in or towards payment of any other sum which
shall have become due but remains unpaid (and, if
more than one such sum so remains unpaid, on a
pro-rata basis).
Each reference in clause 8.9(i) to (ix) (inclusive) to a category of
unpaid sums shall include interest thereon payable in accordance with
this Agreement (including, without limitation, default interest under
clause 5.4). Accordingly, clause 8.9(vi) shall be construed as
referring to interest on principal and accrued interest thereon which
remain unpaid to the extent due.
The order of application set out in this clause 8.9(v) to 8.9(ix)
shall be varied by the Facility Agent if the Majority Banks so direct,
without any reference to, or consent or approval from, the Borrowers.
8.10 CALCULATIONS
All interest and other payments of an annual nature under this
Agreement or any of the Security Documents shall accrue from day to
day and be calculated on the basis of the actual number of days
elapsed, and in the case of Sterling a 365 day year and in the case of
other currencies a 360 day year. 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.
Where the Applicable Margin or Additional Cost changes during any
period, interest and commitment fees shall be calculated on the rate
prevailing from day to day.
8.11 CERTIFICATES CONCLUSIVE
Any certificate of, or determination by, a Finance Party as to any
rate of interest or any other amount payable under this Agreement or
any of the Security Documents shall, in the absence of manifest error,
be conclusive and binding evidence of such rate or amount on each
Borrower and (in the case of a certificate of or determination by the
Facility Agent) on the Banks.
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8.12 EFFECT OF MONETARY UNION
If the country of any national currency in which any amount is
expressed to be payable under this Agreement participates in economic
and monetary union in accordance with Article 109J of the Treaty on
European Union, then:
(a) any amount expressed to be payable under this Agreement in
that national currency shall (until the end of the
transitional period) be made in that national currency or in
Euros as the Facility Agent may, by not less than two Banking
Days' notice to the Primary Borrower and the Banks to that
effect, require;
(b) any amount so required under clause 8.12(a) to be paid in
Euros shall be converted from that national currency at the
rate stipulated pursuant to Article 109L(4) of the Treaty on
European Union and payment of the amount in Euro derived from
such conversion shall discharge the obligation of the relevant
party to pay such national currency amount; and
(c) after consultation with the Primary Borrower and the Banks and
notwithstanding clause 22, the Facility Agent shall be
entitled to make from time to time such amendments to this
Agreement as it may determine to be necessary to take account
of monetary union and any consequent changes in market
practices (whether as to the settlement or rounding of
obligations, the calculation of interest or otherwise
howsoever).
Any amendment so made to this Agreement by the Facility Agent shall be
promptly notified to the other Finance Parties and the Primary
Borrower by the Facility Agent and shall be binding on all the other
Finance Parties and any Borrower and any other party to this
Agreement.
9. REPRESENTATIONS AND WARRANTIES
9.1 REPEATED REPRESENTATIONS AND WARRANTIES
Each Obligor party hereto represents and warrants to each Finance
Party that (subject to clause 9.5):
(a) Due incorporation: it and the other members of the Group from
time to time are duly incorporated and validly existing under
the laws of England as limited liability companies and have
power to carry on their respective businesses as they are now
being conducted and to own their respective property and other
assets;
(b) Corporate Power: it and the other Obligors have power to
execute, deliver and perform their respective obligations
under each of the Finance Documents to which they are parties
and to borrow the Commitments; all necessary corporate,
shareholder and other action has been taken to authorise the
making of the Offer and the issue of the Press Release and the
Offer Documents, and the execution, delivery and performance
of the same and no limitation on the powers of any Obligor to
borrow will be exceeded as a result of any Advance under any
of the Finance Documents and no limitation on any of their
respective powers to give guarantees and/or to create security
will be exceeded as a result of the execution and delivery of
any of the Security Documents;
(c) Binding obligations: (subject, in the case of the Security
Documents, to registration under section 395 Companies Act
1985) (i) each of the Finance Documents when executed and
delivered by any Obligor will (subject to the Reservations)
constitute, valid, legally binding and enforceable
obligations of it in accordance with their respective terms
and (ii) it is not necessary, to ensure the legality,
validity,
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enforceability or admissibility in evidence of any Finance
Document that they or any other instrument be notarised,
filed, recorded, registered or enrolled in any court, public
office or elsewhere in the United Kingdom or elsewhere or
that any stamp, registration or similar tax or charge be paid
in the United Kingdom or elsewhere on or in relation to any
Finance Documents;
(d) No conflict with other obligations: the execution and
delivery of, the exercise of its rights and the performance of
its obligations under, and compliance with the provisions of,
the Finance Documents by it and all other Obligors will not
(i) contravene any existing applicable law, statute, rule or
regulation or any judgment, decree or permit to which any of
them are subject, (ii) conflict with, or result in any breach
of any of the terms of, or constitute a default under any of
the Licences or the Pooling and Settlement Agreement, or under
any other agreement or other instrument to which any of them
are a party or are subject or by which any of their property
is bound to an extent which is reasonably likely in the
reasonable opinion of the Majority Banks to have a Material
Adverse Effect, (iii) contravene or conflict with any
provision of their respective Memorandum or Articles of
Association or (iv) 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 in favour of the Finance Parties)
on any member of the Group's, assets, rights or revenues; and
(e) Pari passu: in the case of each Borrower, its obligations
under this Agreement are its 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.
9.2 NON-REPEATING REPRESENTATIONS AND WARRANTIES
Each Obligor party hereto further represents and warrants to each of
the Finance Parties that (subject to clause 9.5):
(a) Clean company: (other than as may result from entry into the
Finance Documents, the Offer Documents and the documents
ancillary thereto, copies of which have been provided to the
Arrangers) prior to the date of this Agreement neither the
Primary Borrower nor Xxxxx 2 nor Bidco has undertaken any
trading or incurred any material liabilities of any nature
whatsoever whether actual or contingent other than liabilities
for professional fees and any liability which would arise if
the relevant company were wound up;
(b) Winding Up: no meeting has been convened for the winding up or
administration of the Primary Borrower, Xxxxx 2, Bidco or (so
far as the Primary Borrower is aware) any other member of the
Group and so far as the Primary Borrower is aware, no such
step is intended by any of them and no petition, application
or the like is outstanding for the winding up or
administration of any of them;
(c) Full Disclosure: so far as the Primary Borrower, Xxxxx 2 and
Bidco are aware, the written factual information supplied by
or on behalf of the Primary Borrower, Xxxxx 2, Bidco or the
Parent, to any of the Finance Parties in connection with this
Agreement, the Parent and its Subsidiaries, the Offer and/or
the Target Group (including but not limited to the Press
Release and the Offer Document and any other information
concerning the Borrowed Monies, cash balances and Security
Interests of the Target Group) was and remains (except insofar
as superseded by later material supplied to the Finance
Parties by the Primary Borrower prior to the date of this
Agreement) true and accurate in all material respects and it
is not aware of any material facts or circumstances that have
not been disclosed to the Finance Parties and which
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might reasonably be expected to have a Material Adverse
Effect, or which might reasonably be expected to be material
to a bidder in the context of whether to make an offer or
whether the offer is correctly priced;
(d) Agreed Projections: the Agreed Projections delivered to the
Arrangers prior to the date of this Agreement in the agreed
form were arrived at after careful consideration, were fair
and were based on assumptions which were reasonable having
regard to the state of knowledge of the officers of the
Primary Borrower, Xxxxx 2 and Bidco;
(e) No Default: no Default has occurred and is continuing;
(f) Existing Security: no Security Interest exists on or over any
member of the Group's assets except as permitted by clause
11.1(a); and
(g) Litigation:
(i) no litigation, alternative dispute resolution,
arbitration or administration proceeding is taking
place, pending or, to the knowledge of the officers
of the Primary Borrower, Xxxxx 2 or Bidco, threatened
against the Primary Borrower, Xxxxx 2 or Bidco; and
(ii) so far as it is aware, no litigation, alternative
dispute resolution, arbitration or administration
proceeding is taking place, pending or threatened
against any other member of the Group which is
reasonably likely (in the reasonable opinion of the
Majority Banks) in either case to have a Material
Adverse Effect.
9.3 REPRESENTATIONS ON AND FROM THE TAKEOVER OPERATIVE DATE
Each Obligor party hereto represents and warrants to each Finance
Party that on the Takeover Operative Date:
(a) Compliance with Environmental Laws: each member of the Group:
(i) as at the Takeover Operative Date complies; and
(ii) has (to the extent that non-compliance would be
reasonably likely to give rise to a material
liability as at the Takeover Operative Date) at all
times complied,
in all material respects with all Environmental Laws, where
non-compliance, in each case, would be reasonably likely to
have a Material Adverse Effect;
(b) No Environmental Claims:
(i) no Environmental Claim is pending or has been made or
threatened against any member of the Group or any of
their respective officers in their capacity as such;
and
(ii) no member of the Group is aware of any circumstances
or situation which would be reasonably likely to
result in it having any liability in relation to
Environmental Matters,
which, in either case, would be reasonably likely to have a
Material Adverse Effect;
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(c) The Licensees:
(i) each relevant Licensee has been duly authorised by
the Secretary of State under Section 6 of the
Electricity Act to generate, and/or distribute and/or
supply electricity and/or, as the case may be,
section 7 of the Gas Xxx 0000 to supply and transport
gas; and
(ii) no Licensee is in contravention of:
(A) any term or condition of any Licence; or
(B) any requirement of the Electricity Act or Gas
Acts or any regulations made thereunder; or
(C) any other statutory requirement or any final
order or confirmed provisional order made
under the Electricity Act or Gas Acts; or
(D) any undertaking given by it to the Director
General, Director General of Gas Supply or
the Secretary of State in relation to the
conduct of its business as a generator of
electricity or, as the case may be, as a
public electricity supplier or (as the case
may be) public gas supplier or transporter;
the contravention or consequence of which is
reasonably likely to have a Material Adverse Effect;
(d) The Licences:
(i) each Licence is in full force and effect and neither
the Director General nor the Director General of Gas
Supply nor the Secretary of State has given notice to
revoke a Licence;
(ii) no amendment of any of the terms of a Licence has
been made or proposed;
(iii) no other material licence, consent, undertaking or
authorisation necessary for the carrying on by any
member of the Group of its business substantially as
it is currently carried on has been terminated or
breached or not obtained or is otherwise not in full
force and effect;
which in either case is reasonably likely to have a Material
Adverse Effect.
9.4 REPETITION
The representations and warranties in clauses 9.1 and 9.3 shall be
deemed to be repeated on and as of the first Drawdown Date (or in the
case of clause 9.3, the Takeover Operative Date), each subsequent
Drawdown Date and each Interest Payment Date, as if made with
reference to the facts and circumstances existing on each such date,
and shall, after the first set of financial statements have been
delivered under clauses 10.1(b)(i) and (ii), be deemed to include a
representation that the then latest financial statements delivered to
the Banks under clauses 10.1(b)(i) and (ii) have been prepared in
accordance with the Appropriate Accounting Principles which have been
consistently applied and give a true and fair view of (or in the case
of unaudited accounts, present with reasonable accuracy) the financial
position of the Primary Borrower and the consolidated financial
position of the Group respectively as at the date to which such
financial statements were made up and the results of the operations of
the Primary Borrower and the results of the operations of the Group
respectively for the relevant
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period, and in the case of audited accounts are not subject to any
qualifications save of a technical and non- adverse nature.
9.5 APPLICATION TO TARGET GROUP
Each representation or warranty given in respect of Target or any
member of the Target Group on any date up to (but not including) the
Takeover Operative Date shall be given only by the Primary Borrower,
Xxxxx 2 and Bidco and only on a qualified basis, namely that the
representation and warranty is true and accurate with regard to the
Target and the Target Group so far as the Primary Borrower, Xxxxx 2
and Bidco are aware as at the date of this Agreement.
9.6 OBLIGORS' ACKNOWLEDGEMENT
Each Obligor party hereto acknowledges that the Finance Parties are
relying on the representations and warranties but not on any other
information contradictory to them or varying them of which the Finance
Parties or any of them or their respective agents or advisers may have
actual or constructive knowledge.
10. POSITIVE UNDERTAKINGS
10.1 INFORMATION UNDERTAKINGS
Each Obligor party hereto undertakes with each of the Finance Parties
that, throughout the Finance Period (but subject to clause 11.2):
(a) Preparation of financial statements: it will:
(i) Annual audited financial statements: beginning with
the financial year ending 31 December 1998, prepare
financial statements in respect of itself and
consolidated financial statements in respect of the
Group and consolidated financial statements of Xxxxx
2 in accordance with the Appropriate Accounting
Principles (consistently applied) in respect of each
financial year and cause the same to be reported on
by the Auditors; and
(ii) Quarterly financial statements: after the
Unconditional Date, prepare unaudited consolidated
financial statements of the Group and the
consolidated financial statements of Xxxxx 2 in
respect of each Quarter in each financial year in
accordance with the Appropriate Accounting Principles
(consistently applied);
(b) Delivery of financial statements: it will deliver to the
Facility Agent, for distribution to the Banks, sufficient
copies for all the Banks of each of the following documents:
(i) Annual audited financial statements: at the time of
issue thereof to the shareholders of the Primary
Borrower and Xxxxx 2, but in any event not later than
120 days after the end of the financial year to which
they relate, the audited financial statements
referred to in clause 10.1(a)(i) for each financial
year together, in each case, with the report of the
Auditors thereon, the notes thereto, the directors'
report thereon and the certificate referred to in
clause 10.1(b)(iii);
(ii) Unaudited management accounts: within 45 days after
the end of each Quarter in each financial year,
consolidated management accounts for the Group and
for Xxxxx 2 in respect
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of such Quarter prepared in accordance with the
requirements of clause 10.1(a)(ii) together with the
certificate referred to in clause 10.1(b)(iii);
(iii) Compliance with Financial Undertakings: with each set
of accounts delivered by it under clauses 10.1(b)(i)
and (ii) above (except the first Quarter's accounts
under clause 10.1(b)(ii)), the Primary Borrower will
deliver to the Facility Agent a certificate signed by
a director of the Primary Borrower:
(aa) confirming compliance with the financial
undertakings in clause 10.3(a) as at the end
of the relevant Test Period; and
(bb) setting out in reasonable detail and in a
form satisfactory to the Facility Agent the
computations necessary to demonstrate such
compliance;
(iv) Regulatory Accounts: at the time of their issue to
the relevant Government Entity or regulator, all
accounts and other financial statements or
information required under any law or regulation to
be provided to any Government Entity, industry
regulator or similar body or person;
(v) Reports and notices to shareholders and creditors: at
the time of issue thereof every report, circular,
notice or like document issued by the Primary
Borrower, Xxxxx 2 and/or Bidco to its shareholders or
creditors generally and every notice convening a
meeting of its shareholders or any class of its
shareholders; and
(vi) Further information: promptly upon request, such
further information concerning the financial position
of the Group (or any member of it) as the Facility
Agent shall reasonably require;
(c) Notice of Default: it will promptly upon becoming aware of the
same inform the Facility Agent of any Default;
(d) Notice of litigation: it will, upon becoming aware that the
same is threatened or pending and in any case promptly after
the commencement thereof, give to the Facility Agent notice in
writing of any litigation, alternative dispute resolution,
arbitration or administrative proceedings or any dispute
affecting any member of the Group or any of their respective
assets, rights or revenues which if determined against it
could reasonably be expected to result in a liability
(including costs) of more than L.10,000,000 or otherwise have
a Material Adverse Effect; and
(e) Environmental Claims: promptly upon receipt of formal written
notice of the same inform the Facility Agent of any material
Environmental Claim.
10.2 GENERAL UNDERTAKINGS
Each Obligor party hereto undertakes with each of the Finance
Parties that, throughout the Finance Period but subject to
clause 11.2:
(a) Use of proceeds: it will procure that the proceeds of Advances
under the Facilities are used exclusively for their respective
purposes specified in clause 1.1;
(b) Consents etc relating to the Finance Documents: it will
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,
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or in connection with, every consent, authorisation, licence
or approval of any Government Entity or consents required by
it in connection with the execution, delivery, validity,
enforceability or admissibility in evidence of the Finance
Documents and do, or cause to be done, all other acts and
things, which may from time to time be necessary under
applicable law for the continued due performance of all its
(or its Subsidiaries) obligations under the Finance Documents;
(c) Pari passu: it will ensure that its obligations, and those of
each other Obligor, under each of the 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;
(d) Licences and Environmental Laws:
(i) it will obtain and maintain and procure that each
member of the Group obtains and maintains in full
force and effect each Licence required for the
carrying on of their respective businesses; and
(ii) it will obtain and maintain and procure that each
member of the Group obtains and maintains in full
force and effect all other material Environmental
Licences and ensures that its business and the
business of each of its Subsidiaries complies in all
respects with all material Environmental Laws and all
other material Environmental Licences;
(e) Clear Market: from the date of this Agreement until the
Syndication Date it will not and will procure that no member
of the Group will, except with the prior written consent of
the Arrangers or in relation to the refinancing in full of the
Facilities, mandate or place in the syndicated or bilateral
loan markets any Borrowed Money, or issue any floating rate
notes, other than the Facilities;
(f) Hedging Transactions: within 90 days of the date of this
Agreement the Primary Borrower shall enter into one or more
hedging agreements so as to swap the floating element of
interest on the Facilities to a fixed rate in respect of at
least 50% of the aggregate Facilities, such hedging agreements
to be:
(i) with a counterparty having a credit rating with
Standard & Poors of at least A; and
(ii) for a period or periods such that the average
maturity of the hedging agreements is at least 2
years after the date on which the hedging agreements
are entered into;
(g) Upstreaming:
(i) it will take all steps available to it to ensure that
sufficient funds are lawfully (and subject to
compliance with applicable regulations including the
Licences) upstreamed (directly or indirectly) to it
by the Target Group, Xxxxx 2 and Bidco (by way of
dividend or otherwise) to ensure that it is able to
meet its obligations under this Agreement;
(ii) in particular, it will take all steps available to it
to ensure that an amount equal to the proceeds of the
Coalco Disposal Agreement (or as much of such
proceeds as it is or can be made lawful and in
compliance with regulations as are referred to in (i)
above to upstream) are lawfully upstreamed (directly
or indirectly) from the Target to the Primary
Borrower (and not to any minority shareholder in
Xxxxx 2, unless such minority shareholder makes a
simultaneous equity investment of an equal amount
into the Primary Borrower, the proceeds of which are
applied in immediate prepayment of the Facilities in
accordance with clause 6)
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as soon as is practicable following the Unconditional
Date, provided that the Primary Borrower may refrain
from requiring the upstreaming of such proceeds for
so long as:
(aa) it does not own 100% of the issued share
capital of Target; and
(bb) the Offer is still open for acceptance,
and/or Bidco is still entitled to implement
or is in the course of implementing the
procedures in Section 428-30 of the Companies
Act;
(h) Insurance: it will procure that each member of the
Group maintains insurances on and in relation to its
business and assets with reputable underwriters or
insurance companies against such risks and to such
extent that is usual for companies carrying on a
business such as that carried on by such member of
the Group;
(i) Investment Agreement: the Primary Borrower, Xxxxx 2
and Bidco will comply with their obligations under
the Investment Agreement save if and insofar as they
conflict with clause 11.1(f).
10.3 FINANCIAL UNDERTAKINGS
(a) Each Obligor party hereto undertakes with each of the Finance
Parties that, from the Unconditional Date and thereafter
throughout the Finance Period, it will procure that:
(i) for each Test Period, the ratio of EBITDA to Net
Interest Costs is not less than 2:1;
(ii) as at the last day of each Test Period, the Leverage
Ratio is not more than 70% until and including 30
September 2000, and thereafter 65%;
where a Test Period commences prior to the Unconditional Date
the calculation of the Financial Definitions shall be amended
so that:
(aa) for the purposes of calculating Net Interest
Costs the whole amount of the Advances drawn
down and other Utilisations as at the end of
the relevant Test Period shall be deemed to
have been made on the first day of such Test
Period and no amount in respect of Net
Interest Costs attributable to Indebtedness
which is refinanced in connection with the
Acquisition shall be brought into account;
and
(bb) for all purposes Coalco will be deemed not to
have been part of the Group;
(b) Each Obligor party hereto shall procure that:
(i) as from the Unconditional Date until such time as
Bidco shall have acquired shares carrying the right
to vote 75% of each class of shares of the Target,
the Share Value of all the Target Shares acquired and
effectively charged to the Security Agent shall not
at any time be less than twice the aggregate of the
outstanding Advances (excluding Revolving Credit
Advances) at that time;
(ii) on each Drawdown Date, the sum of:
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(aa) 50% of the Share Value of all the Target
Shares consisting of American Depositary
Receipts acquired and effectively charged to
the Security Agent, plus;
(bb) the Share Value of all other Target Shares
acquired and effectively charged to the
Security Agent,
shall not be less than the aggregate of the
outstanding Advances;
(c) Each of the Primary Borrower and Xxxxx 2 undertakes with each
of the Finance Parties that it will not adopt any accounting
policy or change the consistency of application of its
accounting principles from the Appropriate Accounting
Principles unless:
(i) the revised policy and practice adopted from time to
time is in accordance with generally accepted
accounting practice in the United Kingdom, and
(ii) prior to any revised policy and practice being
adopted the Primary Borrower has notified the
Facility Agent thereof and, if required by the
Facility Agent, will negotiate in good faith with the
Facility Agent in order that the Financial Covenants
may be amended as required by the Facility Agent in
order for it to be able to make the same judgments as
to the financial performance of the Group as it is
able to under the present accounting policy.
If such negotiations are not concluded to the satisfaction of
the Facility Agent within a period of 30 days from the
commencement of such negotiations each of the Primary Borrower
and Xxxxx 2 agrees that it will procure that the Auditors
provide financial statements reflecting the Appropriate
Accounting Policies, and any reference in this Agreement to
financial statements under this Agreement shall be construed
as a reference to such financial statements as adjusted to
reflect the Appropriate Accounting Policies;
(d) For the purposes of calculating Net Interests Costs, any
incremental impact of interest rate hedging transactions or
refinancings entered into by the Primary Borrower from time to
time shall be treated as varying the Net Interest Costs
payable by Xxxxx 2, whether or not they actually do so;
(e) Each of the Primary Borrower and Xxxxx 2 undertakes with each
of the Finance Parties that it will not vary or waive the
terms of the Investment Agreement, and undertakes to procure
that the principal amount of the intercompany loan from the
Primary Borrower to Xxxxx 2 is not reduced save by way of
amounts which are repaid by Xxxxx 2 to the Primary Borrower
and promptly applied by the Principal Borrower in repayment
and permanent reduction of sums outstanding under the
Facilities.
10.4 THE OFFER
(a) The Primary Borrower, Xxxxx 2 and Bidco each undertake with
each of the Finance Parties that it shall (or shall procure
that Bidco shall, as applicable):
(i) until the earlier of the date the Offer lapses or is
finally closed, comply in all material respects with
the Code, the Financial Services Xxx 0000 and the Act
and all other applicable laws and regulations
relevant in the context of the Offer;
(ii) provide the Facility Agent with such information
regarding the progress of the Offer as it may
reasonably request and, provided no breach of the
Code would result, all material written advice given
to it in respect of the Offer;
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(xxx) not declare the Offer unconditional at a level of
acceptances below that required by Rule 10 of the
Code;
(iv) ensure that at no time shall circumstances arise
whereby a mandatory offer is required to be made by
the terms of Rule 9 of the Code in respect of the
Target Shares;
(v) not, without the prior consent of the Arrangers
(acting on the instructions of the Majority Banks),
waive, amend or agree or decide not to enforce, in
whole or in part, the conditions of the Offer set out
in paragraphs (c) (Referral) or (b) (Coalco Disposal
Agreement) of Appendix 1 to the Press Release;
(vi) not, without the prior consent of the Arrangers
(acting on the instructions of the Majority Banks),
such consent not to be unreasonably withheld or
delayed, waive, amend (but not including extending
the Offer period, which shall be at the Primary
Borrower's discretion provided that the Offer is
closed within the period required by clause 10.4(f)
below) or agree or decide not to invoke, in whole or
in part, in any material respect, any of the other
material conditions of the Offer (and the Primary
Borrower, Xxxxx 2 and Bidco acknowledge that the
total Indebtedness of the Target Group requiring to
be refinanced, and the amount of any contingent
liabilities of the Target Group which would or might
crystallise upon the Offer becoming unconditional,
are material), provided that the Primary Borrower,
Xxxxx 2 and Bidco shall not be in breach of this
clause (vi) if they fail to invoke a condition of the
Offer because the Takeover Panel has directed that
they may not do so.
(b) Each of the Primary Borrower, Xxxxx 2 and Bidco acknowledges
and confirms to the Finance Parties that if any event or
circumstance occurs which under the conditions of the Offer
may entitle Bidco to lapse the Offer, Bidco will promptly
notify the Facility Agent and if in the reasonable opinion of
the Majority Banks such event or circumstance would have a
material and adverse affect on the ability of the Borrowers to
comply with their material obligations under this Agreement
(or the adequacy of the facilities available for refinancing
indebtedness or other liabilities of the Target Group) and the
Facility Agent acting on the instructions of the Majority
Banks so requests, Bidco will promptly seek the consent of the
Takeover Panel to lapse the Offer. If the Takeover Panel
consents to Bidco's lapsing the Offer in the light of such
event or circumstance, Bidco shall then lapse the Offer
promptly.
(c) Each of the Primary Borrower, Xxxxx 2 and Bidco shall keep the
Arrangers informed and consult with them as to:
(i) the terms of any undertaking or assurance proposed to
be given by it, any of its Affiliates or any member
of the Target Group to the Director General, the
Director General of Gas Supply or the Secretary of
State for Trade and Industry in connection with the
Offer;
(ii) the terms of any modification to any of the Licences
proposed in connection with the Offer;
(iii) any terms proposed in connection with any
authorisation or determination necessary or
appropriate in connection with the Offer;
If the Majority Banks (acting reasonably) state that in their
opinion such proposed undertakings(s), assurance(s),
modification(s) and/or term(s), or compliance therewith, would
materially and adversely affect the ability of the Group to
comply with its material obligations under the Finance
Documents, Bidco shall promptly request the Takeover Panel to
confirm (and shall use its reasonable endeavours to ensure
that the Takeover Panel does confirm) that the Takeover Panel
will not object to the lapsing
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of the Offer as a result of the non-satisfaction of whichever
of the conditions in Appendix 1 to the Press Release is
relevant, provided that Bidco will not be obliged to lapse the
Offer as a result of any proposed modifications of any Licence
or any proposed undertakings or assurances from the Primary
Borrower, Xxxxx 2, Bidco or any member of the Target Group to
be given to the Director General to the extent that such
modifications, undertakings or assurances (as the case may be)
are no more onerous than those set out and required by the
Director General from Pacificorp and/or the Target Group in
accordance with the terms of the Monopolies and Mergers
Commission Report dated 19 December 1997 into the original
Pacificorp offer for the Target. If the Takeover Panel gives
a confirmation substantially in those terms, Bidco shall at
the earliest opportunity declare the Offer lapsed by reason of
the non- fulfilment of such condition(s).
(d) Each of the Primary Borrower, Xxxxx 2 and Bidco acknowledges
and confirms to the Finance Parties that the Offer, or an
accompanying circular to shareholders of the Target, should
also contain a super class one resolution to be passed by the
shareholders of the Target, seeking approval of the completion
of the Coalco Disposal Agreement with effect on and from the
Unconditional Date. Where the context permits, all references
in this Agreement (and in the Offer) to the Offer being
accepted and/or becoming unconditional shall be construed to
include such approval being granted.
(e) Each of the Primary Borrower, Xxxxx 2 and Bidco undertakes to
the Finance Parties that within 15 days of the date on which
acceptances of the Offer are received from holders of not less
than 90% of the Target Shares to which the Offer relates,
Bidco shall procure that a director of Bidco issues a
statutory declaration pursuant to section 429(4) of the
Companies Xxx 0000, gives notice to all remaining holders of
the Target Shares that it intends to acquire their shares
pursuant to section 429 of the Companies Xxx 0000, and Bidco
shall subsequently purchase all such shares.
(f) Each of the Primary Borrower, Xxxxx 2 and Bidco undertakes to
the Finance Parties that Bidco shall in any event give notice
to close the Offer no later than 120 days after the date of
this Agreement, unless the Arrangers agree in their absolute
discretion to extend such period.
10.5 DELISTING
Each of the Primary Borrower, Xxxxx 2 and Bidco undertakes to the
Finance Parties to procure that, as soon as legally and practically
possible after the Unconditional Date, the American Depositary Shares
represented by the American Depositary Receipts tendered to Bidco
shall be converted into ordinary shares of the Target or otherwise
held in form satisfactory to the Security Agent, the Target shall be
removed from the Official List of the London Stock Exchange Limited
and reregistered as a private company and its American Depositary
Shares shall be delisted from the New York Stock Exchange.
10.6 FINANCIAL ASSISTANCE AND GUARANTEES
Each Obligor party hereto undertakes with each of the Finance Parties
that it will take all steps available to it to procure that any
company in the Target Group selected and notified to the Principal
Borrower by the Facility Agent shall give such guarantees to the
Security Agent as may be requested by the Facility Agent, in respect
of the Indebtedness of the Borrowers to the Banks, save that no such
guarantee may be requested (or, if requested, may be refused) where:
(a) the giving of such a guarantee would be unlawful and it is not
legally possible for the proposed giver of such guarantee to
take steps to render the giving of such guarantee lawful; or
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(b) the giving of any such guarantee would reasonably be expected
to breach a condition of any of the Licences or the Pooling
and Settlement Agreement or the Gas Framework Agreement and,
as a consequence, entitle the Secretary of State, the Director
General or the Director General of Gas Supply to revoke or
withdraw such Licence, or amend such Licence in any respect
which would reasonably be expected to have a Material Adverse
Effect; or
(c) the giving of such a guarantee would:
(i) cause any of the Existing Public Debt to be repayable
at the option of the holder thereof or cause the
coupon thereunder to increase materially; and/or
(ii) cause Indebtedness under the Existing Facilities to
become repayable before the stated maturity date;
and/or
(iii) cause the exercise of a put option under clause 18.1
of the Existing Guarantee (or any similar provision)
in circumstances necessitating the making of a
payment or payments by a company or companies in the
Target Group pursuant to the terms of clause 18 of
the Existing Guarantee (or any similar provision);
and in any such case either:
(aa) the aggregate amount of Existing Public Debt
or Indebtedness to be repaid under the
Existing Facilities and payments to be made
by a Target Group company (as referred to in
sub-clause (iii)) would exceed the aggregate
of (A) all financing facilities then
available to the Borrowers, Bidco or any
member of the Target Group and (B) all Liquid
Assets less (C) the Headroom; or
(bb) the financial consequences to the Group of
refinancing such Indebtedness as referred to
in (aa) above would be so materially adverse
(whether in terms of coupon, all-in inherent
costs or otherwise) compared with not so
refinancing such Indebtedness as to make it
unreasonable for the Finance Parties to
require guarantees to be given.
The Primary Borrower undertakes to use all reasonable endeavours to
obtain any necessary consents under the Existing Facilities or the
Existing Public Debt as are needed to enable guarantees by Target
Group companies in favour of the Security Agent to be given within six
months of the Unconditional Date.
In this clause:
"EE" means the REC (company no. 2366906);
"EG" means Eastern Group plc (company no. 3247622);
"EGL" means Eastern Generation Ltd (company no. 2353756);
"EMGL" means Eastern Merchant Generation Ltd (company no. 3113665);
"EXISTING FACILITIES" means facilities for Borrowed Money (not being
capital markets issues) existing in the Target Group at the
Unconditional Date, including:
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(a) the facility agreement dated 1 July 1996 (as amended and
restated on 8 August 1996) between EMGL, EMPL, EE, The
Industrial Bank of Japan, Limited (as arranger and agent), and
the Banks and participants listed therein;
(b) a standby facility agreement dated 28 October 1996 between EG
and EGL (as guarantors), EMPL, EMGL, The Industrial Bank of
Japan, Limited as arranger and agent and the financial
institutions named therein;
(c) the guarantee and indemnity dated 28 October 1996 between EG,
EGL, EE, the Banks therein mentioned, Barclays Bank PLC and
Barclays de Zoete Wedd Limited;
"EXISTING PUBLIC DEBT" means capital markets issues existing in the
Target Group at the Unconditional Date, including (without
limitation):
(a) the US $200,000,000 7.375% Guaranteed Notes Due 2017 and US
$300,000,000 7.500% Guaranteed Notes Due 2027 issued by
Eastern Group Overseas B.V. and unconditionally and
irrevocably guaranteed by the Target;
(b) L.200,000,000 8.5% Bonds due 2025 issued by EE;
(c) L.200,000,000 8.75% Bonds due 2012 issued by EE;
(d) L.350,000,000 8.375% Bonds due 2004 issued by EE;
"HEADROOM" means an amount agreed in good faith by the Facility Agent
and the Primary Borrower to be equal to the aggregate of the Group's
working capital requirements and such other amounts as the directors,
acting reasonably and properly, recommend (by directors' certificate)
should be reserved against other liabilities at the applicable time.
11. NEGATIVE UNDERTAKINGS
11.1 NEGATIVE UNDERTAKINGS
Each Obligor party hereto undertakes with each of the Finance Parties
that throughout the Finance Period (but subject to clause 11.2),
without the prior written consent of the Facility Agent acting on the
instructions of the Majority Banks:
(a) Negative pledge: it will not permit, and will procure that no
other member of the Group will permit, any Security Interest
by it or any other member of the Group to subsist, arise or be
created or extended over all or any part of their respective
present or future undertakings, assets, rights or revenues,
save for any Permitted Security Interest;
(b) No other Borrowed Money: it will not, and will procure that no
member of the Group will, incur or permit to exist on its
behalf any obligations in respect of Borrowed Money (excluding
any guarantees, indemnities or other forms of assurance
against financial loss in respect of Borrowed Money, which are
referred to in clause 11.1(d) below) to any person except:
(i) the Facilities;
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(ii) the Loan Notes;
(iii) Borrowed Money owed by any member of the Group to
another member of the Group;
(iv) Borrowed Money incurred under the hedge transactions
entered into pursuant to clause 10.2(f) and/or clause
(n) of Schedule 3, Part A;
(v) Borrowed Money to the extent secured by a Security
Interest permitted by paragraphs (c) (d) (e) (f) and
(l) of the definition of Permitted Security Interest,
but only for so long as such Security Interest
remains a Permitted Security Interest;
(vi) Borrowed Money incurred to repay and discharge the
Facilities in full;
(vii) Borrowed Money of the Target Group as at the
Unconditional Date (and refinancings thereof)
provided that:
(aa) each refinancing extends the tenor of the
refinanced amount to beyond the Final
Repayment Date; and
(bb) all refinancings shall be by way of capital
markets instruments which are of a similar
nature to the Target Group's existing
instruments having regard to market
conditions and the issuer's credit status, or
are structurally or contractually
subordinated to the Facilities and the
Guarantees in a manner satisfactory to the
Majority Banks (acting reasonably); and
(cc) any new facilities for Borrowed Money entered
into by the Target Group between the date of
this Agreement and the Unconditional Date
(except the REC's facility referred to in
clause 24.5) shall be cancelled and repaid in
full within 180 days of the Unconditional
Date;
(viii) provided that as a result of Borrowed Money incurred
under this paragraph (viii) the outstanding Advances
under the Acquisition Facility would be not more than
L.1,000,000,000 and the total Borrowed Money in the
Primary Borrower (excluding Borrowed Money which is
subordinated to the Facilities as referred to in (ix)
below) would not exceed L.1,600,000,000, Borrowed
Money may be incurred by way of a Permitted Capital
Markets Instrument issued by the Primary Borrower
provided that the proceeds are applied solely to
repay or prepay all or any part of the Facilities.
If the Primary Borrower shall exercise its rights to
incur Borrowed Money and repay or prepay all or part
of the Facilities under and in compliance with this
sub-paragraph (viii) and no Default has occurred and
is continuing, the Facility Agent and the Security
Agent shall permit the lenders under the relevant
Permitted Capital Markets Instrument (in this clause,
the "New Capital Markets Lenders") to take security
over the shares in Xxxxx 2 held by the Primary
Borrower and by Texas Utilities Services Inc. (in
terms satisfactory to the Majority Banks) and shall
execute a pari passu agreement with the New Capital
Markets Lenders (in terms satisfactory to the
Majority Banks) agreeing that the Finance Parties'
and the New Capital Markets Lenders' security over
the Xxxxx 2 shares shall rank pari passu, and in
addition the Facility Agent acting on the
instructions of the Majority Banks shall elect in its
discretion which of the following alternatives it
wishes to occur so as to put the New Capital Markets
Lenders in a pari passu position with the Finance
Parties:
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(aa) the Security Agent to release all of the
remaining guarantees and security constituted
by the Debenture and the Guarantees, save for
the Finance Parties' security over the Xxxxx
2 shares referred to above; or
(bb) the Security Agent to retain all or part of
the security and guarantees referred to in
(aa) above, but permit the New Capital
Markets Lenders to take identical security
and/or guarantees to that retained and to
execute a pari passu agreement with the
Finance Parties (on terms satisfactory to the
Majority Banks) agreeing that the guarantees
and/or security held by the Finance Parties
and the New Capital Markets Lenders shall
rank pari passu;
(ix) to the extent that it is necessary to repay the
outstanding Interim Advances under clause 6.1(b), or
prepay Acquisition Advances under clause 6.2 but the
Primary Borrower is either unable or elects not to
meet such payments by upstreaming Coal Proceeds,
Borrowed Money incurred which is contractually and/or
structurally subordinated to the Facilities and
Guarantees in a manner satisfactory to the Majority
Banks;
(x) contracts for differences and contracts to hedge
commodity and energy related exposures and positions
in the ordinary course of trading;
(xi) in respect of the Target, Borrowed Money in addition
to that permitted by sub-clauses (i) to (x) above,
provided that:
(aa) the Target has provided a guarantee to the
Security Agent in respect of all of the
obligations of the Borrowers hereunder in
accordance with clause 10.6; and
(bb) such Borrowed Money would not result in a
breach of the Leverage Ratio if it were added
to Consolidated Net Borrowings as at the end
of the last Test Period (and calculating the
Leverage Ratio taking into account any assets
acquired with such Borrowed Money), and the
Leverage Ratio was recalculated;
(c) Disposals: it shall procure that neither it nor any member of
the Group will, either in a single transaction or in a series
of transactions, whether related or not and whether
voluntarily or involuntarily, sell, factor, discount,
transfer, licence, lend, grant or lease or otherwise dispose
of:
(i) any shares in Xxxxx 2, Bidco, any Target Shares and
any shares in REC or in any holding company thereof;
or
(ii) all or any part of the assets or undertaking of the
Target Group (except the assets referred to in
paragraph (i) above), other than:
(aa) to another member of the Group;
(bb) pursuant to the Coalco Disposal Agreement;
(cc) disposals in the ordinary course of trading;
(dd) disposals of obsolete or redundant plant and
equipment;
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(ee) other disposals to third parties on arm's
length terms, provided that the consideration
for such disposals does not exceed
L.50,000,000 in aggregate for the Group in
any financial year;
(ff) in any financial year, disposals of assets by
any member of the Target Group, (1) the gross
value of which (based, in relation to a
disposal occurring before the first delivery
of any annual audited accounts in accordance
with clause 10.1(b), on the annual audited
accounts in respect of the financial year to
31 December 1997 and, in relation to
disposals occurring thereafter, on the
audited consolidated accounts of the Target
Group most recently delivered to the Facility
Agent) when aggregated with all other
disposals by each member of the Target Group
during such financial year not permitted by
any other paragraph of this clause 11.1(c),
does not exceed an amount equal to 10% of the
consolidated gross assets of the Target Group
as shown in such annual audited consolidated
accounts (excluding Coalco and its
Subsidiaries) and (2) in respect of which the
net proceeds of such disposal will be applied
(A) within one year of their receipt in or
towards acquiring for any member of the
Target Group assets of a type ordinarily
employed in the operation of any business
permitted by clause 11.1(i) or (B) in
prepayment of any Acquisition Advance or
Interim Advance in accordance with clause
6.6;
(gg) disposals constituting the creation of
Permitted Security Interests;
(hh) securitisations of receivables of the REC in
accordance with the REC's securitisation
programme in existence at the date of this
Agreement; or
(ii) other disposals where the proceeds are
upstreamed promptly to the Primary Borrower
and used in repayment or prepayment of the
Advances in accordance with clause 6.6;
(d) Restriction on Guarantees: it shall not and shall procure that
no other member of the Group shall give any guarantee (which
includes an indemnity or other form of assurance against
financial loss), except:
(i) where the guarantee is given by a member of the Group
in connection with cash management and netting
facilities extended to the Group by a bank or
financial institution in the normal course of
business; or
(ii) any guarantee, indemnity, letter of credit or similar
assurance against financial loss under any Relevant
Arrangements;
(iii) guarantees in favour of the Finance Parties;
(iv) guarantees of Borrowed Money or other obligations of
other members of the Group, where such guarantees are
already in existence as at the Unconditional Date
(including guarantees given by the same guarantor
companies as had previously guaranteed the relevant
obligation in respect of a new obligation which
refinances or replaces the existing obligation)
provided that any such guarantees of Borrowed Money
entered into between the date of this Agreement and
the Unconditional Date shall be discharged and
released within 180 days of the Unconditional Date
(unless the guarantee was created pursuant to an
obligation existing as at the date of this
Agreement);
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(v) any guarantee permitted under clause 11.1(b)(x);
(vi) any other guarantees given with the prior written
consent of the Majority Banks;
(e) The Licences: it shall procure that each Licensee will:
(i) take all appropriate steps efficiently to perform and
discharge the duties and functions of a generator of
electricity or, as the case may be, public
electricity supplier in accordance with the
provisions of the Electricity Act and, in particular,
to comply with:
(aa) the terms and conditions of the Licence;
(bb) the provisions of any final order or
confirmed provisional order made under the
Electricity Act; and
(cc) all Licence Undertakings given by it to the
Director General and/or the Secretary of
State in respect of the matters referred to
in Section 25(5) of the Electricity Act;
(ii) not consent to any amendment to the terms and
conditions of the Licence if that amendment is
reasonably likely to have a Material Adverse Effect;
(iii) not consent to any revocation of the Licence except
where a replacement Licence is to be granted to a
member of the Group in its place;
(iv) promptly inform the Facility Agent of any material
Licence Undertakings given by it or any Affiliate to
the Director General, and/or the Secretary of State
and subsequently comply with its terms;
(v) promptly supply to the Facility Agent:
(aa) certified copies of all notices or orders
served on it by the Director General or the
Secretary of State in exercise of the powers
conferred on him by the Electricity Act;
(bb) details of any references to the Monopolies
and Mergers Commission; and
(cc) details of the exercise or purported exercise
by the Secretary of State or the Director
General of the powers conferred on him by the
Fair Trading Xxx 0000, the Competition Xxx
0000 and/or Section 12 of the Electricity
Act;
(vi) ensure that all times the Licensee has
sufficient working capital to finance the
performance and discharge of its duties as a
generator of electricity or, as the case may
be, public electricity supplier, in
accordance with the provisions of the
Electricity Act and the terms and conditions
of any Licence; and
(vii) not permit any person other than a member of
the Group to perform or manage on its behalf
any of its functions as a public electricity
supplier, as set out in any Licence and the
Electricity Act;
(f) Dividend payments: neither the Primary Borrower nor Xxxxx 2
will:
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(i) redeem or purchase any of its shares or otherwise
reduce its share capital, or declare or pay
(including, without limitation, by way of set-off,
combination of accounts or otherwise) any dividend or
make any other distribution or payment (whether in
cash or in specie), including any interest and/or
unpaid dividends, to its shareholders or their
Affiliates for the time being; or
(ii) make any payment (including, without limitation, by
way of set-off, combination of accounts or otherwise)
of interest or principal, or make any other payment,
in respect of any loan stock or similar instrument
issued by the Primary Borrower or Xxxxx 2 (other than
payments in respect of the intercompany loan from the
Primary Borrower to Xxxxx 2 referred to in the
Investment Agreement),
unless:
(aa) the Primary Borrower or, as the case may be,
Xxxxx 2 has notified the Facility Agent in
writing of the proposed payment or
distribution at least 15 days in advance of
the proposed payment date; and
(bb) to the extent that the most recent financial
statements provided to the Facility Agent
under clause 10.1(b)(ii) and the accompanying
financial covenant compliance certificates
confirm in a manner satisfactory to the
Facility Agent (acting reasonably) that there
is no breach of the Leverage Ratio covenant,
and there would still be no breach of the
Leverage Ratio covenant as at the end of the
financial Quarter if the proposed payment or
distribution (and any related advance
corporation tax or similar tax) was deducted
from Adjusted Share Capital and Reserves at
the end of such preceding Quarter and if
Consolidated Net Borrowings was increased to
reflect any increase in Consolidated Net
Borrowings since the end of the preceding
Quarter, and the relevant financial covenant
recalculated; and
(cc) no Default has occurred and is continuing; and
(dd) Bidco holds at least 90% of the Target Shares;
(g) Contracts and arrangements between the Group and the Parent:
it will not, and will procure that no other member of the
Group will, enter into any arrangement or contract with the
Parent or any of its Subsidiaries or Affiliates (not being a
member of the Group), or any Project Finance Subsidiaries,
save for contracts entered into on an arm's length basis in
the ordinary course of trade (and in any event neither it nor
any member of the Group will make any loan to or give any
guarantee in respect of the Parent or any of its Subsidiaries
or Affiliates (not being a member of the Group) or Project
Finance Subsidiaries) except that the Primary Borrower may
(i) at any time after the Unconditional Date repay to the
Parent the Excess Equity Funding; or
(ii) make equity investments in or loans to Project
Finance Subsidiaries if and to the extent:
(aa) such loans or equity investments are financed
by further equity subscribed by the Parent or
subordinated loans permitted in accordance
with clause 11.1(b)(ix) made by the Parent to
the Primary Borrower or Xxxxx 2; or
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(bb) such loans or equity investments do not
exceed the amount of dividend payments which
could have been made at the same time under
clause 11.1(f) and the Primary Borrower and
Xxxxx 2 complies with the provisions of
clause 11.1(f)(aa) to (dd) immediately prior
to making such loans;
(h) Amalgamation and merger: it will not, and will procure that no
other member of the Group will, amalgamate or merge with any
other company or person (other than intra-Group or if a member
of the Group is the surviving corporation, and such merger or
amalgamation would not result in an Event of Default);
(i) Change in business: it will not, and will ensure
that no other member of the Group will, carry on any
business other than those which are usual for
electricity companies in the United Kingdom
including, without limitation, electricity
distribution, supply and generation and energy
trading and business activities related to the gas,
telecommunications and water industries. Provided
that the limitation of business activities contained
in this clause 11.1(i) will not apply to any other
business activities carried on by members of the
Group as long as such other business activities do
not in aggregate account for more than 10% of the
consolidated gross assets or gross revenues of the
Group;
(j) Primary Borrower, Xxxxx 2 and Bidco business and Subsidiaries:
the Primary Borrower, Xxxxx 2 and Bidco will not (i) carry on
any business or own any material assets other than their
shareholdings in Xxxxx 2, Bidco and the Target respectively,
intra-group credit balances and credit balances in bank
accounts (which shall be held with the Security Agent or as it
directs), (ii) establish or acquire any company or other
entity or (iii) incur any liabilities other than in connection
with this Agreement and the Acquisition;
(k) Target Group Acquisitions: the Primary Borrower, Xxxxx 2 and
Bidco shall procure that the Target and its Subsidiaries shall
not acquire any business, assets or shares without the prior
written consent of the Majority Banks, save for:
(i) where the business, assets or shares acquired fall
within the Group's general business as described in
subclause 11.1(i) above (disregarding the business
activities referred to in the proviso to that clause)
and are subject to regulation by a Government Entity
as to pricing and operations, or constitute any other
business within the limits permitted by the proviso
to subclause 11.1(i) above;
(ii) acquisitions by Project Finance Subsidiaries where no
funds or assets of, or other financial support by,
the Primary Borrower, Bidco or any member of the
Group are invested in, lent to or otherwise provided
to such Project Finance Subsidiary in connection with
or at any time after the acquisition, save as
provided by clause 11.1(g); and
(iii) acquisitions by Project Finance Subsidiaries where
any equity investment or subordinated debt required
to be invested in the Project Finance Subsidiary is
obtained by the Project Finance Subsidiary from third
parties (or the Parent) and not from resources of the
Group, save as provided by clause 11.1(g);
(l) Treasury Transactions: it will not, and will procure that no
other member of the Group will, enter into any Derivatives
Transactions, save for hedging financial exposures of the
Group arising in the ordinary course of business and the
hedging agreements contemplated by clause 10.2(f) and clause
(n) of Schedule 3, Part A; and
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(m) Regulations G, T, U and X: it will not use the Facilities or
the proceeds of the Facilities in contravention of Regulations
G, T, U or X of the Board of Governors of the Federal Reserve
System of the United States of America.
11.2 APPLICATION TO TARGET GROUP
No covenant or undertaking (except the financial covenants in clause
10.3(a)) shall apply to the Target Group until the Takeover Operative
Date, but the Primary Borrower, Xxxxx 2 and Bidco shall use all
commercially reasonable endeavours to procure that the Target Group is
run as if the covenants and undertakings in this Agreement applied to
it as from the Unconditional Date.
12. EVENTS OF DEFAULT
12.1 EVENTS OF DEFAULT
Each of the events set out below is an Event of Default (whether or
not caused by any reason whatsoever outside the control of any
Relevant Company (or any other person)) namely if:
(a) Non-payment: any Borrower or Obligor fails to pay any sum due
from it under any of the Finance Documents on its due date in
the manner stipulated in the relevant Finance Document (or
within three Banking Days of the due date if the delay is
caused by technical difficulties or administrative error in
the transfer of funds); or
(b) Breach of certain obligations: any Borrower or other Obligor
commits any breach or omits to observe any of the obligations
or undertakings expressed to be assumed by it under clause
10.3, 10.4, 11.1(a), 11.1(f) or 11.1(i); or
(c) Breach of other obligations: any Borrower or other Obligor
commits any breach of or omits to observe any of the
obligations or undertakings expressed to be assumed by it
under any of the Finance Documents (other than any such
obligations referred to in clause 12.1(a) and (b)) and in
respect of any such breach or omission which, in the
reasonable opinion of the Majority Banks, is capable of
remedy, such action as shall remedy the same to the reasonable
satisfaction of the Majority Banks shall not have been taken
within 21 days of the relevant Borrower becoming aware of such
default; or
(d) Misrepresentation: any representation, warranty or statement
made or deemed to be made or repeated by or on behalf of any
Borrower or other Obligor in, or in connection with, any of
the Finance Documents or in any notice, accounts, certificate
or statement referred to in or delivered under any of the
Finance Documents is or proves to have been incorrect or
misleading and if capable of being remedied, in the reasonable
opinion of the Majority Banks, is not remedied to the
reasonable satisfaction of the Majority Banks 21 days after
the date on which the relevant Group Company becomes aware of
such misrepresentation; or
(e) Cross-default:
(i) any Borrowed Money of a member of the Group is not
paid when due or within any originally stated
applicable grace period; or
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(ii) any Borrowed Money of a member of the Group is
declared or becomes capable of being declared (by
reason of an event of default or default howsoever
described) to be or otherwise becomes due and payable
prior to its specified maturity; or
(iii) any Borrowed Money of a member of the Group which is
repayable on demand is not repaid on demand being
made,
in circumstances where, in all or any of the above paragraphs,
the Borrowed Money amounts in aggregate at any one time to
more than L.20,000,000 or its equivalent in other currencies,
unless the Borrowed Money concerned is being disputed in good
faith and the Primary Borrower has shown to the Facility
Agent's satisfaction (acting reasonably) that it has adequate
cash reserves to pay that Borrowed Money and its other
outstanding debts; or
(f) Legal process: (without prejudice to any other provision of
this Agreement) any final judgment or order in an amount
exceeding L.2,000,000 (or its equivalent in other currencies)
made against any Relevant Company is not stayed or complied
with or paid within 28 days (or in the case of payments, when
due (if later)) or a creditor attaches or takes possession of,
or a distress, execution, sequestration or other process is
levied or enforced upon or sued out against, any part of the
undertakings, assets, rights or revenues of any Relevant
Company with a book value or market value in excess of
L.2,000,000 and is not discharged or stayed within 14 days; or
(g) Insolvency: any Relevant Company (i) is deemed unable to pay
its debts in accordance with Section 123(1)(a), (b) or (e) or
(2) of the Insolvency Xxx 0000 unless, in the case of Section
123(1)(a) only, a statutory notice has been withdrawn, stayed
or dismissed within 14 days or (ii) is unable generally to pay
its debts as they fall due; or
(h) Administration: (i) any meeting of any Relevant Company is
convened for the purpose of considering any resolution to
present an application for an administration order or (ii) a
petition on administration order is presented to the Court in
relation to any Relevant Offeror Company or (iii) a petition
for an administration order in relation to any other Relevant
Company is presented to the court or an administration order
is sought of the court on the basis of an undertaking to
subsequently present a petition which is being contested by
the Relevant Company in good faith with appropriate
proceedings diligently pursued, and is not discharged within
21 days or (iv) any Relevant Company passes a resolution to
present an application for an administration order or (v) an
administration order is made in relation to any Relevant
Company; or
(i) Compositions etc: any steps are taken, or negotiations
commenced, by any Relevant Company or by any of its creditors
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; or
(j) Appointment of receivers and managers: (i) any administrative
or other receiver or any manager is appointed of any Relevant
Company or any material part of its assets and/or undertaking
or (ii) the directors of any Relevant Company request any
person to appoint such a receiver or manager or (iii) any
other steps are taken to enforce any Security Interest over
all or any material part of the assets and/or undertakings of
any Relevant Company; or
(k) Winding up: (i) any meeting of any Relevant Company is
convened for the purpose of considering any resolution for (or
to petition for) its winding up or (ii) any Relevant Company
passes such a resolution; or (iii) any person presents any
petition for the winding up of any Relevant Company (not being
a petition which the Primary Borrower can demonstrate to the
satisfaction of the Facility Agent is
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frivolous vexatious or an abuse of the process of the court)
which is not discharged within 14 days or (iv) an order for
the winding up of any Relevant Company is made, not (in any
case) being a winding-up of a Subsidiary of the Primary
Borrower involving an amalgamation or reorganisation on a
solvent basis which has been approved in advance by the
Facility Agent (acting reasonably); or
(l) Dissolution: any corporate, legal or administrative
proceedings are commenced by any person (including, without
limitation, the Registrar of Companies) with a view to the
dissolution of any Relevant Company, not being a dissolution
involving an amalgamation or reorganisation on a solvent basis
which has been approved in advance by the Facility Agent
(acting reasonably); or
(m) Analogous proceedings: there occurs, in relation to any
Relevant Company, in any country or territory in which any of
them carries on business or to the jurisdiction of whose
courts any part of their assets is subject, any event which,
in the reasonable opinion of the Majority Banks, appears in
that country or territory to correspond with, or have an
effect equivalent to, any of those mentioned in clauses
12.1(f) to (l) (inclusive) or any Relevant Company otherwise
becomes subject, in any such country or territory, to the
operation of any law relating to insolvency, bankruptcy or
liquidation; or
(n) Cessation of business: other than in relation to a disposal
permitted under this Agreement, any Relevant Company suspends
or ceases or threatens to suspend or cease to carry on its
business; or
(o) Change of Control:
(i) Bidco ceases to be a wholly owned subsidiary (as that
term is used in section 736 of the Act) of Xxxxx 2;
or
(ii) Xxxxx 2 ceases to be a wholly owned Subsidiary of the
Parent and at least a 90% owned direct subsidiary of
the Primary Borrower; or
(iii) less than 100% (until the first anniversary of the
Unconditional Date) or 75% (until the second
anniversary of the Unconditional Date) or 60%
(thereafter) of the equity share capital of the
Primary Borrower is held by the Parent (directly or
indirectly) at any time; or
(iv) Bidco at any time reduces its shareholding in the
Target; or
(v) REC, any other Licensee ceases to be a wholly-owned
Subsidiary of the Target; or
(vi) there is a Change in Control of the Parent; or
(p) Distribution Business/Generation Business:
(i) the Group ceases, or threatens to cease, to carry on
the Distribution Business;
(ii) all or a majority of the issued shares of the
Licensee or any other Relevant Company or the whole
or any material part of the assets or revenues of the
Distribution Business or Generation Business are
seized, nationalised, expropriated or compulsorily
acquired by or under the authority of a Government
Entity;
(iii) any change is made in the statutory or regulatory
requirements applicable to the Distribution Business
or Generation Business or any new statutory or
regulatory requirements are imposed on it which would
be reasonably likely to have a Material Adverse
Effect; or
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(q) Licences:
(i) the Secretary of State gives notice in writing of the
revocation of a Licence for any reason or a Licence
ceases to be in full force and effect in any material
respect except where a similar licence is or licences
are granted to a member of the Group in its place;
(ii) without prejudice to paragraph (i) above, any
legislation (whether primary or subordinate) with
regard to the creditors of Licensees or the ability
of Licensees to raise finance under a Licence or with
regard to generators or electricity or public
electricity suppliers generally is enacted and that
enactment would be reasonably likely to have a
Material Adverse Effect;
(iii) any amendment is made to the terms and conditions of
a Licence and the amendment would be reasonably
likely to have a Material Adverse Effect;
(r) Electricity Act:
(i) any of the provisions of the Electricity Act (or any
subordinate legislation) detailing the rights,
powers, authorities, obligations and duties of the
Secretary of State or the Director General, or the
manner in or time at which they are to be exercised,
are repealed or amended in a manner which would be
reasonably likely (in the opinion of the Majority
Banks) to have a Material Adverse Effect; or
(ii) the Licensee fails to comply with a final order
(within the meaning of section 25 of the Electricity
Act) or with a provisional order (within the meaning
of that section) which has been confirmed under that
section and in either case which has not been revoked
under that section or the validity of which has not
been questioned under section 27 of the Electricity
Act, if such failure to comply would be reasonably
likely to have a Material Adverse Effect; or
(s) Pooling and Settlement Agreement: REC or any other member of
the Group ceases to be a party to the Pooling and Settlement
Agreement, or any notice requiring REC or any other member of
the Group to cease to be a party to the Pooling and Settlement
Agreement is given to such company under the relevant clauses
of the Pooling and Settlement Agreement, except where another
member of the Group becomes a party to that agreement in its
place;
(t) Gas Framework Agreement: REC or any other member of the Group
ceases to be a party to the Gas Framework Agreement where this
would be reasonably likely to lead to a Material Adverse
Effect, except where another member of the Group becomes a
party to that agreement in its place;
(u) Finance Documents: any Finance Document is not or ceases to be
legal, valid and binding on or enforceable against any Obligor
or is alleged by any Borrower or other Obligor to be
ineffective for any reason; or
(v) Unlawfulness: it becomes unlawful at any time for any
Borrower or other Obligor to perform all or any of its
material obligations under any of the Finance Documents;
(w) Coalco Disposal Agreement: the Target varies, waives or
amends any material provision of the Coalco Disposal Agreement
or the Escrow Agreement (save with the prior written consent
of the Majority Banks).
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12.2 ACCELERATION
The Facility Agent may, and, if so requested by the Majority Banks,
shall, without prejudice to any other rights of the Finance Parties:
(a) Certain Funds Period: during the Certain Funds Period, at any
time after the happening of a Major Default; or
(b) Other times: at any other time, after the happening of an
Event of Default,
and so long as the same is continuing, by notice to the Primary
Borrower:
(i) declare that the obligation of each Bank to make its
Commitments available shall be terminated, whereupon the Total
Commitments in respect of all Facilities shall be reduced to
zero forthwith; and/or
(ii) declare that the Advances and all interest, fees and
commitment commission accrued and all other sums payable under
the Finance Documents have become due and payable or have
become due and payable on demand, whereupon the same shall,
immediately or in accordance with the terms of such notice,
become due and payable; and/or
(iii) demand full cash cover for the Outstanding Contingent
Liabilities under all Letters of Credit then outstanding in
the currency in which those Letters of Credit are denominated;
and/or
(iv) declare that the Security Documents (or any of them) have
become enforceable (in whole or in part).
On or at any time after the making of any such declaration, the
Facility Agent shall be entitled, to the exclusion of the Borrowers,
to select the duration of Interest Periods.
12.3 LIMITED RIGHTS OF RESCISSION DURING THE CERTAIN FUNDS PERIOD
Prior to the end of the Certain Funds Period, except as expressly
permitted by clause 12.2(a), none of the Finance Parties shall have or
seek to exercise any right of rescission or other remedy in
consequence of any of the representations or warranties in the Finance
Documents being or being proved to have been incorrect in any respect
or any Borrower having failed to perform, observe or comply with any
of its obligations, undertakings or agreements under the Finance
Documents or otherwise (except for the Security Agent's rights under
the Debenture to take control of and vote the Target Shares).
12.4 APPLICATION TO TARGET GROUP
Without limitation to clauses 9.5, 11.2 and 12.3, the occurrence of
any event falling within clause 12.1 in respect of the Target or any
member of the Target Group at any time prior to the Takeover Operative
Date shall not (unless it constitutes a breach of clause 11.2)
constitute an Event of Default or a Default if:
(a) the same arises under clauses 12.1(e), (f), (i) or (u); and
(b) the event is remedied to the satisfaction of the Majority
Banks by the Takeover Operative Date.
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13. INDEMNITIES
13.1 MISCELLANEOUS INDEMNITIES
The Primary Borrower shall within three Banking Days of demand
indemnify each Finance Party, without prejudice to any of their other
rights under any of the Finance Documents, against any cost, loss,
claim, expense (including loss of Applicable Margin and legal fees) or
liability together with any Tax thereon which such Finance Party shall
certify as sustained or incurred by it as a consequence of:
(a) any default in payment by any Borrower of any sum under any of
the Finance Documents when due,
(b) the occurrence of any other Default,
(c) any prepayment of the Facilities or part thereof being made
otherwise than on an Interest Payment Date or, as the case may
be, Maturity Date relative thereto,
(d) any Advance not being made for any reason (excluding, but only
to the extent of the indemnification of a particular Finance
Party, any gross negligence or wilful default by such Finance
Party) after a Drawdown Notice has been given, or
(e) any notice sent by telefax failing to be received,
including, in any such case, but not limited to, any loss or expense
sustained or incurred in maintaining or funding its Contributions or
any part thereof or in liquidating or re-employing deposits from third
parties acquired or contracted for to fund all or any part of its
Contributions or any other amount owing to such Finance Party.
13.2 CURRENCY OF ACCOUNT; CURRENCY INDEMNITY
(a) No payment by any Borrower under any of the Finance Documents
which is made in a currency other than the currency
("CONTRACTUAL CURRENCY") in which such payment is required to
be made pursuant to the relevant Finance Documents shall
discharge the obligation in respect of which it is made except
to the extent of the net proceeds in the Contractual Currency
received by the Facility Agent upon the sale of the currency
so received, after taking into account any premium and costs
of exchange in connection with such sale.
(b) The Finance Parties shall not be obliged to accept any such
payment in a currency other than the Contractual Currency nor
shall the Finance Parties be liable to any Borrower for any
loss or alleged loss arising from fluctuations in exchange
rates between the date on which such payment is so received by
the Facility Agent and the date on which the Facility Agent
effects such sale, as to which the Facility Agent shall (as
against each Borrower) have an absolute discretion.
(c) If any sum due from any Borrower under any Finance Documents
or any order or judgment given or made in relation hereto is
required to be converted from the Contractual Currency or the
currency in which the same is payable under such order or
judgment (the "FIRST CURRENCY") into another currency (the
"SECOND CURRENCY") for the purpose of (i) making or filing a
claim or proof against any Borrower, (ii) obtaining an order
or judgment in any court or other tribunal or (iii) enforcing
any order or judgment given or made in relation to any of the
Finance Documents, each Borrower shall indemnify and hold
harmless each Finance Party from and against any loss suffered
as a result of any difference between (A) the rate of exchange
used for such purpose to convert the sum in question from the
first
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currency into the second currency and (B) the rate or rates of
exchange at which each such Finance Party may in the ordinary
course of business purchase the first currency with the second
currency upon receipt of a sum paid to it in satisfaction, in
whole or in part, of any such order, judgment, claim or proof.
(d) Any amount due from any Borrower under the indemnity contained
in this clause 13.2 shall be due as a separate debt and shall
not be affected by judgment being obtained for any other sums
due under or in respect of any of the Finance Documents and
the term "RATE OF EXCHANGE" includes any premium and costs of
exchange payable in connection with the purchase of the first
currency with the second currency.
13.3 ACQUISITION FINANCE INDEMNITY
The Primary Borrower shall forthwith on demand indemnify each Finance
Party and each of their respective Affiliates and Subsidiaries and its
respective directors officers and employees (each being an
"INDEMNIFIED PERSON") from and against any cost, claim, loss, expense
(including without limitation, the fees, costs and expenses of legal
advisors arising from any legal procedures (including, without
limitation, any administrative regulatory or judicial actions or
investigations) to which that Indemnified Person becomes subject or
joined as a party or which may be threatened or pending against it) or
liability together with any Tax thereon which may be incurred or
asserted against such Indemnified Person arising out of or in
connection with the Offer (whether or not made) or it agreeing to
finance or refinance any acquisition by Bidco or any person acting in
concert with Bidco of any shares or share options of any class in
Target or the use of the proceeds of any Advance (save to the extent
any such loss or liability arises as a result of the gross negligence
or wilful default of the relevant Finance Party).
13.4 NO SETTLEMENT WITHOUT CONSENT
The Primary Borrower agrees on its own behalf and on behalf of each
other member of the Group that, without the prior written consent of
each relevant Agent and the Majority Banks, no member of the Group
will settle, compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification could be sought under the indemnification
provisions of clauses 8.4, 8.5, 8.6, 7.6, 13, 16.14, 20.2 or 20.3
(whether or not any indemnitee thereunder (the "Indemnitee") is an
actual or potential party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent does not include any
statement as to an admission of fault, culpability or failure to act
by or on behalf of any Indemnitee and does not involve any payment of
money or other value by any Indemnitee or any injunctive relief or
factual findings or stipulations binding on any Indemnitee.
14. UNLAWFULNESS, INCREASED COSTS, ALTERNATIVE INTEREST RATES
14.1 UNLAWFULNESS
(a) If it is or becomes contrary to any law or regulation or
contrary to any request from or requirement of any fiscal
monetary or other authority (with which such Finance Party
would normally comply) for a Finance Party to contribute to
any Utilisation or to maintain its Commitments in respect of a
Facility or fund its Contribution to a Facility, such Finance
Party shall promptly after becoming aware of the same, through
the Facility Agent, notify the Primary Borrower whereupon (a)
such Finance Party's Commitments shall be reduced to zero
(and, if it is the Issuing Bank, it shall have no further
obligation to Issue Letters of Credit if to do so would in the
opinion of the Issuing Bank be or become contrary to any law
or regulation or contrary to any request from or requirement
of any fiscal monetary or other
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authority (with which such Finance Party would normally
comply)) and (b) if the Facility Agent on behalf of the
Finance Party so requires each relevant Borrower shall be
obliged to prepay the Contribution of such Finance Party to
such Facility and provide full cash cover for any Outstanding
Contingent Liabilities of the relevant Finance Party on a
future date specified by the Facility Agent not being earlier
than the latest date permitted by the relevant law or
regulation or not contrary to such request or requirement.
Any prepayment pursuant to this clause 14.1 shall be made
together with all amounts referred to in clause 6.6.
(b) When any relevant Borrower makes any prepayment under this
clause 14.1 the Facility Agent shall not release the amount of
such prepayment which is cash cover for any Outstanding
Contingent Liabilities of the relevant Finance Party to such
Finance Parties but shall place such monies on suspense
account and such money may be used as collateral for the
actual and the contingent liabilities of that Finance Party to
the Issuing Bank, which liabilities shall remain in full force
and effect notwithstanding such prepayment; and such Finance
Party shall remain liable under all the relevant provisions of
this Agreement to the Issuing Bank to pay in cash any
shortfall between the amount held by the Facility Agent and
its liabilities under this Agreement.
14.2 INCREASED COSTS
If the result of any change in, or in the interpretation or
application of, or the introduction of, (after the date of this
Agreement):
(a) any law (including, the introduction of the proposed Bank of
England Act following the publication of the Bank of Xxxxxxx
Xxxx 1997) or
(b) any regulation, request or requirement (which if not having
the force of law is one of a kind with which the relevant
Finance Party or, as the case may be, its holding company
habitually complies), including those relating to Taxation,
capital adequacy, European monetary union, liquidity, reserve
assets, cash ratio deposits and special deposits or requested
or required by any central bank (including without limitation
any European Central Bank) or other fiscal monetary or other
authority,
is to:
(i) subject any Finance Party or its holding company to
Taxes or change the basis of Taxation of any Finance
Party with respect to any payment under this
Agreement (other than Taxes or Taxation on the
overall net income, profits or gains of such Finance
Party imposed in the jurisdiction in which its
principal office or Facility Office is located);
and/or
(ii) increase the cost to, or impose an additional cost
on, any Finance Party or its holding company in
entering into or performing its obligations under the
Finance Documents and/or in making or keeping
available all or part of such Finance Party's
Commitments and/or maintaining or funding all or part
of such Finance Party's Contributions (and/or
providing any guarantee or indemnity of any other
Finance Party's obligations); and/or
(iii) reduce the amount payable or the effective return to
any Finance Party under this Agreement; and/or
(iv) reduce any Finance Party's or its holding company's
rate of return on its overall capital by reason of a
change in the manner in which it is required to
allocate capital resources in respect of all or any
of the advances or obligations comprised in a class
of advances or
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obligations formed by or including such Finance
Party's share in Utilisations made or to be made
under this Agreement; and/or
(v) require any Finance Party or its holding company to
make a payment or forgo a return calculated by
reference to or on any amount received or receivable
by such Finance Party under this Agreement; and/or
(vi) require any Finance Party or its holding company to
incur or sustain a loss (including a loss of future
potential profits) by reason of being obliged to
deduct all or part of such Finance Party's
Commitments or Contributions from its capital for
regulatory purposes,
then and in each such case (but subject to clause 8.6 and
14.3):
(aa) such Finance Party shall notify the Primary
Borrower through the Facility Agent in
writing of such event promptly upon its
becoming aware of the same; and
(bb) following such notification the Primary
Borrower shall, whether or not such Finance
Party's Contribution to any Facility has been
repaid, pay to the Facility Agent on demand
for the account of such Finance Party the
amount which such Finance Party specifies (in
a certificate setting forth the basis of the
computation of such amount but not including
any matters which such Finance Party or its
holding company regards as confidential) is
required to compensate such Finance Party
and/or its holding company in its sole
discretion for such liability to Taxes,
increased or additional cost, reduction,
payment, forgone return or loss.
For the purposes of this clause 14.2 each Finance Party may in good
faith allocate or spread costs and/or losses among its assets and
liabilities (or any class thereof) on such basis as it considers
appropriate.
Each Finance Party shall use all reasonable endeavours to notify the
Primary Borrower as soon as reasonably practicable of any such
increased cost, reduction, payment or forgone return which is to
result in a demand under clause 14.2(bb).
For the purposes of this clause 14.2 and clause 14.4 "HOLDING COMPANY"
means, in relation to a Finance Party, the company or entity (if any)
within the consolidated supervision of which such Finance Party is
included.
For the purposes of this clause 14.2, the Borrowers acknowledge that
any requirement that the Finance Parties treat interest hereunder as
anything other than interest shall be a change in law or the
interpretation thereof.
14.3 EXCEPTIONS
Nothing in clause 14.2 shall entitle any Finance Party to receive any
amount in respect of compensation for any such liability to Taxes,
increased or additional cost, reduction, payment, forgone return or
loss to the extent that the same:
(a) is taken into account in calculating the Additional Cost; or
(b) is the subject of an additional payment under clause 8.5; or
(c) arises as a consequence of (or of any law or regulation
implementing) (i) the proposals for international convergence
of capital measurement and capital standards published by the
Basle Committee on
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Banking Regulations and Supervisory Practices in July 1988
and/or (ii) 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 hereof; or
(d) is attributable to Taxation save where it is recovered under
clause 14.2(i); or
(e) is attributable to the wilful default or gross negligence of a
Finance Party.
For the purposes of clause 14.3(c) the term "APPLICABLE DIRECTIVE"
means (exclusively) each of the Own Funds Directive (89/299/EEC of
17th April 1989) and the Solvency Ratio Directive (89/647/EEC of 18th
December 1989).
14.4 MITIGATION
If, in respect of any Finance Party (an "AFFECTED BANK"),
circumstances arise or exist which would result in:
(a) any Borrower being required to make an increased payment to
that Finance Party pursuant to clause 8.5;
(b) the reduction of that Finance Party's Commitment in respect of
any Facility to zero or any Borrower being required to prepay
that Finance Party's Contribution to any Facility pursuant to
clause 14.1;
(c) any Borrower being required to make a payment to any Finance
Party to compensate such Finance Party or its holding company
for a liability to Taxes, increased or additional cost,
reduction, payment, forgone return or loss pursuant to clause
14.2(bb); or
(d) any Borrower not being entitled to a deduction for UK
corporation tax purposes in respect of interest payable under
this Agreement to that Finance Party;
then, without in any way limiting, reducing or otherwise qualifying
the obligations of any Borrower under clause 8 and this clause 14 (and
subject to the Borrower's rights under clause 6.5), such Finance Party
shall, in consultation with the Facility Agent, endeavour to take such
reasonable steps (and/or, in the case of clause 14.2(bb) and where the
increased or additional cost, reduction, payment, forgone return or
loss is that of its holding company, endeavour to procure that its
holding company takes such reasonable steps) as are open to it (or, as
the case may be, its holding company) to mitigate or remove such
circumstances unless the taking of such steps might (in the opinion of
such Finance Party) be prejudicial to such Finance Party (or, as the
case may be, its holding company) and provided that such Finance Party
shall be under no obligation to take any such action if in the opinion
of such Finance Party to do so might have any adverse effect upon its
business, operations or financial condition.
15. SET-OFF AND PRO-RATA PAYMENTS
15.1 SET-OFF
Each Borrower hereby agrees that each Finance Party may at any time,
whilst any Default shall be continuing notwithstanding any settlement
of account or other matter whatsoever, combine or consolidate all or
any of its then existing accounts wheresoever situate (including
accounts in the name of such Finance Party or of such Borrower jointly
with others), whether such accounts are current, deposit, loan or of
any other nature
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whatsoever, whether they are subject to notice or not and whether they
are denominated in Sterling or in any other currency, and set-off or
transfer any sum standing to the credit of any one or more such
accounts in or towards satisfaction of any moneys, obligations or
liabilities which are due and payable by such Borrower to such Finance
Party under the Finance Documents but are unpaid. For this purpose
each Finance Party is authorised to purchase with the moneys standing
to the credit of such account such other currencies as may be
necessary to effect such application. No Finance Party shall be
obliged to exercise any right given to it by this clause 15.1. Each
Finance Party shall notify the Facility Agent promptly upon the
exercise or purported exercise of any right of set-off in relation to
any member of the Group giving full details in relation thereto and
the Facility Agent shall inform the other Finance Parties.
15.2 PRO-RATA PAYMENTS
(a) If at any time any Bank (the "RECOVERING BANK") receives or
recovers any amount owing to it by any Borrower under this
Agreement by direct payment, set-off or in any manner other
than by payment through the Facility Agent (not being a
payment received from a Substitute or a sub-participant in
such Bank's Contribution to any Facility or any other payment
of an amount due to the Recovering Bank for its sole account),
the Recovering Bank shall, within two Banking Days of such
receipt or recovery (a "RELEVANT RECEIPT") notify the Facility
Agent of the amount of the Relevant Receipt. If the Relevant
Receipt exceeds the amount which the Recovering Bank would
have received if the Relevant Receipt had been received by the
Facility Agent then:
(i) within two Banking Days of demand by the Facility
Agent, the Recovering Bank shall pay to the Facility
Agent an amount equal to the excess;
(ii) the Facility Agent shall treat the excess amount so
paid by the Recovering Bank as if it were a payment
made by the relevant Borrower and shall distribute
the same to the Banks (other than the Recovering
Bank); and
(iii) as between the relevant Borrower and the Recovering
Bank, the excess amount so re-distributed shall be
treated as not having been paid but the obligations
of the relevant Borrower to the other Banks shall, to
the extent of the amount so re-distributed to them,
be treated as discharged.
(b) If any part of a Relevant Receipt subsequently has to be
wholly or partly refunded by the Recovering Bank (whether to a
liquidator or otherwise) each Bank to which any part of such
Relevant Receipt was so re-distributed shall on request from
the Recovering Bank repay to the Recovering Bank such Bank's
pro-rata share of the amount which has to be refunded by the
Recovering Bank.
(c) Each Bank shall on request supply to the Facility Agent such
information as the Facility Agent may from time to time
request for the purpose of this clause 15.2.
(d) Notwithstanding the foregoing provisions of this clause 15.2,
no Recovering Bank shall be obliged to share any Relevant
Receipt which it receives or recovers pursuant to legal
proceedings taken by it to recover any sums owing to it under
this Agreement with any other party which has a legal right
to, but does not, either join in such proceedings or commence
and diligently pursue separate proceedings to enforce its
rights in the same or another court (unless the proceedings
instituted by the Recovering Bank are instituted by it in
breach of clause 18.2).
(e) The amounts due from each relevant Borrower to each of the
Banks shall reflect any payments and receipts among the Banks
prescribed by this clause.
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(f) Nothing in this clause 15.2 shall prevent the Issuing Bank
from recovering from the relevant Borrowers any amounts due
under a Letter of Credit issued by the Issuing Bank.
15.3 NO RELEASE
For the avoidance of doubt it is hereby declared that failure by any
Recovering Bank to comply with the provisions of clause 15.2 shall not
release any other Recovering Bank from any of its obligations or
liabilities under clause 15.2.
15.4 NO CHARGE
The provisions of this clause 15 are not intended to, shall not, and
shall not be construed so as to, constitute a charge by a Bank. In
particular it is not intended to create a charge over all or any part
of a sum received or recovered by any Bank in the circumstances
mentioned in clause 15.2.
16. ASSIGNMENT, SUBSTITUTION AND LENDING OFFICES
16.1 BENEFIT AND BURDEN
This Agreement shall be binding upon, and enure for the benefit of,
the Finance Parties and the Borrowers and their respective successors,
transferees and assigns.
16.2 NO ASSIGNMENT BY THE BORROWERS
The Borrowers may not assign or otherwise transfer any of their
respective rights or obligations under any of the Finance Documents.
16.3 SUBSTITUTION
Each Bank (an "EXISTING BANK") may at any time assign all or any of
its rights and benefits under the Finance Documents or novate in
accordance with clause 16.5 all or any part of its rights, benefits
and/or obligations under the Finance Documents to another Qualifying
Bank (a "SUBSTITUTE") with the consent of the Issuing Bank, and with
the consent of the Primary Borrower (not to be unreasonably withheld
or delayed), save that such consent of the Primary Borrower will not
be required to assignments or novations which take place prior to the
Syndication Date.
16.4 ASSIGNMENT
If any Bank assigns all or any of its rights and benefits under the
Finance Documents in accordance with clause 16.3, then, unless and
until the assignee has agreed with the other Finance Parties that it
shall be under the same obligations towards each of them as it would
have been if it had been an original party thereto as a Bank, the
other Finance Parties shall not be obliged to recognise that assignee
as having the rights against each of them which it would have had if
it had been such a party thereto.
16.5 SUBSTITUTION CERTIFICATE
(a) Subject to clause 16.5 (b), if a duly completed Substitution
Certificate duly executed by the Existing Bank and the
Substitute is delivered to and counter-signed by the Facility
Agent (for itself and the other parties to this Agreement
other than the Existing Bank), then on the Effective Date (as
specified in that
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Substitution Certificate) to the extent that the Existing
Bank's rights, benefits and obligations under the Finance
Documents are expressed in such Substitution Certificate to be
the subject of a novation in favour of the Substitute effected
pursuant to this clause 16.5:
(i) the existing parties to the Finance Documents and the
Existing Bank shall be released from their respective
obligations towards one another under the Finance
Documents ("DISCHARGED OBLIGATIONS") except for any
obligation which the Existing Bank has to the Issuing
Bank under clause 4.7 (Bank's Guarantee and
Indemnity) before the date on which the novation
takes place unless otherwise agreed in writing by the
Issuing Bank and their respective rights against one
another under the Finance Documents ("DISCHARGED
RIGHTS") shall be cancelled;
(ii) the Substitute party to such Substitution Certificate
and the existing parties to the Finance Documents
shall assume obligations towards each other which
differ from the discharged obligations only insofar
as they are owed to or assumed by such Substitute
instead of to or by such Existing Bank;
(iii) the Substitute party to such Substitution Certificate
and the existing parties to the Finance Documents
shall acquire rights against each other which differ
from the discharged rights only insofar as they are
exercisable by or against such Substitute instead of
by or against such Existing Bank; and
(iv) the Finance Parties shall acquire the same rights and
benefits and assume the same obligations between
themselves as they would have acquired and assumed
had such Substitute been an original party hereto as
a Bank with the rights, benefits and/or obligations
acquired or assumed by it as a result of such
transfer;
and, on such Effective Date, the Substitute shall (unless such
novation is part of the syndication process carried out by the
Arrangers) pay to the Facility Agent for its own account a fee
of L.750. The Facility Agent shall promptly notify the other
Banks of the receipt by it of any Substitution Certificate and
shall promptly deliver a copy of such Substitution Certificate
to the Primary Borrower.
(b) A Substitution Certificate executed under this clause shall be
automatically effective only if and to the extent that the
Substitute shall have a credit rating issued by Standard &
Poors Corporation of at least A (the "Minimum Rating"). If
any Substitute does not have the Minimum Rating as at the time
of the transfer, then the Substitution Certificate shall not
take effect until such time as the Substitute has lodged with
the Security Agent such amount of cash by way of cash cover as
would represent the amount required to be paid by that
Substitute to the Issuing Bank, if the Issuing Bank were to
call on the Bank's indemnity in respect of Letters of Credit
contained in clause 4.7. Should the Issuing Bank issue any
further Letters of Credit, such Substitute shall lodge such
further cash cover as shall equal the contribution which it
could be required to make to the Banks' indemnity in respect
of such additional Letters of Credit.
16.6 RELIANCE ON SUBSTITUTION CERTIFICATE
The Facility Agent (on behalf of itself and the Security Agent) and
the Borrowers shall be fully entitled to rely on any Substitution
Certificate delivered to the Facility Agent in accordance with the
foregoing provisions of this clause 16 which is complete and regular
on its face as regards its contents and purportedly signed on behalf
of the relevant Existing Bank(s) and the Substitute(s) and none of the
Facility Agent, the Security Agent and the Borrowers shall have any
liability or responsibility to any party as a consequence of placing
reliance on and
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acting in accordance with any such Substitution Certificate if it
proves to be the case that the same was not authentic or duly
authorised.
16.7 AUTHORISATION OF FACILITY AGENT
Each party to this Agreement irrevocably authorises the Facility Agent
to counter-sign each Substitution Certificate on its behalf for the
purposes of clause 16.5 without any further consent of, or
consultation with, such party except, in the case of the Primary
Borrower, any consent required pursuant to clause 16.3.
16.8 ACCESSION DEEDS
The Obligors shall from time to time at the request of the Facility
Agent promptly execute any accession deed to any of the Security
Documents and do any other act or thing or execute such further
documents as directed by the Facility Agent in connection with the
transfer of rights or benefits under clause 16.3.
16.9 COSTS AND EXPENSES
The Primary Borrower shall, promptly after demand by the Facility
Agent, pay to the Facility Agent and the Security Agent the reasonable
costs and expenses incurred by them or any other Finance Party in
connection with the creation of valid security in respect of any
Substitute taking an assignment of rights and/or an assumption of
obligations pursuant to clause 16 in those jurisdictions requiring
further steps to be taken following such assignment or assumption.
16.10 CONSTRUCTION OF CERTAIN REFERENCES
If any Bank novates all or any part of its rights, benefits and
obligations as provided in clause 16.3 all relevant references in this
Agreement to such Bank shall thereafter be construed as a reference to
such Bank and/or its Substitute to the extent of their respective
interests.
16.11 LENDING OFFICES
Each Bank shall lend through its office at the address specified in
schedule 1 or, as the case may be, in or pursuant to any relevant
Substitution Certificate or through any other office of such Bank
selected from time to time by such Bank through which such Bank wishes
to lend for the purposes of this Agreement. If the office through
which a Bank is lending is changed pursuant to this clause 16.11, such
Bank shall notify the Facility Agent promptly of such change. No Bank
shall exercise its rights under this clause in any manner which might
reasonably be expected to result in it not being a Qualifying Bank.
16.12 DISCLOSURE OF INFORMATION
The Obligors party to this Agreement agree that the Finance Parties
may at any time disclose such information relating to the Obligors,
their Affiliates and associated companies as shall come into their
possession, whether or not in relation to the Facilities:
(a) to any prospective assignee, Substitute or sub-participant;
(b) to their respective advisers, professional or otherwise;
(c) to any Affiliate of such Finance Party;
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(d) to the other Finance Parties;
(e) if required to do so by an order of a court in any
jurisdiction;
(f) under any law or regulation or to any applicable regulatory
authority (including the Bank of England) in any jurisdiction;
and
(g) where such information shall have already entered the public
domain,
and in the case of (a) and (b) above, subject to requiring and
receiving a written confirmation from the recipient of the information
that it will treat in confidence any confidential information so
disclosed to it and not use it for any unauthorised purpose and, upon
receipt of such confirmation, such Finance Party shall in no way be
liable or responsible for such information not being kept confidential
by such proposed assignee, Substitute or other person.
16.13 RESTRICTIONS ON NOVATIONS
Any novation by an Existing Bank which is transferring part (but not
all) of its Commitment may only be made under this clause 16 if (i) it
is made in respect of a Commitment of L.5,000,000 or any larger
integral multiple of L.5,000,000 and (ii) as a consequence of such
novation (or as a consequence of that and any other novation between
the same or related parties taking effect at or about the same time)
the Commitment of the Existing Bank would be less than L.5,000,000.
If part (but not all) of a Bank's Contribution is being transferred,
the previous sentence shall be read as if it referred to
"Contribution", "Contributions" and assignment instead of "Commitment"
and "Commitments" and "novation" respectively.
16.14 NO OBLIGATION
The Existing Bank shall not be obliged by any Finance Document to:
(a) accept a re-transfer from the Substitute of any of the rights
and/or obligations assigned or transferred under this clause
16; or
(b) indemnify the Substitute for any losses arising by reason of
any Obligor's failure to perform its obligations under any
Finance Documents or otherwise.
16.15 SYNDICATION
It is acknowledged that at the date of this Agreement the Facilities
are being made available by the Underwriters with the intention that
each Underwriter may transfer any part of its participation in
accordance with clause 16.5 (Substitution) and, accordingly,
references to the Banks shall, before the first date on which such
transfer shall be made of the Underwriter's rights, benefits and
obligations under this Agreement in accordance with clause 16.5
(Substitution), be construed as a reference solely to the
Underwriters.
16.16 OBLIGORS' UNDERTAKINGS IN CONNECTION WITH SYNDICATION
The Obligors acknowledge that syndication of the Facilities in
accordance with this clause 16.16 and the Syndication Letter will take
place and undertake to take reasonable steps to assist and co-operate
with the Arrangers, the Facility Agent and the Underwriters in
syndication by, among other things:
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(a) co-operating with site visits by the Banks and persons invited
by the Arrangers to participate (in this clause 16.16 only,
together the "BANKS");
(b) participating at an appropriate senior management level in
presentations to the Banks concerning the Parent, the members
of the Group and their activities;
(c) using reasonable endeavours to obtain appropriate
authorisations from the Auditors, other accountants,
consultants and professional advisers to release for the
benefit of the Banks any information addressed to any Obligor
and/or the Facility Agent;
(d) refraining from making any statement, announcement or
publication or doing any act or thing which may obstruct
syndication in any way;
(e) providing the Banks with such information relating to the
Parent and members of the Group, and their associated
companies and their activities as the Banks reasonably
request;
(f) assisting the Facility Agent and the Arrangers in the
preparation and review of any information which such Facility
Agent and/or the Arrangers reasonably require for the purposes
of syndication, including assisting in the preparation of any
information memorandum and the giving of such additional
warranties as the Facility Agent may reasonably request of the
contents of the information and/or the warranties in clause 9,
provided that any such warranties are expressed to be to the
best of the relevant Obligor's knowledge, information and
belief and that the Obligors may disclose against such
warranties such matters as they deem appropriate;
(g) passing on to the Facility Agent any enquiries received by
them from potential Banks; and
(h) agreeing to amendments to the Finance Documents of an
administrative or technical nature or to correct typographical
or other clerical errors.
17. FACILITY AGENT AND SECURITY AGENT
17.1 APPOINTMENT OF FACILITY AGENT AND SECURITY AGENT
Each Finance Party (except the relevant agent) appoints the Facility
Agent to act as its agent in connection with the Finance Documents to
which the Facility Agent is a party and the Security Agent to act as
its agent and trustee in relation to the Security Documents, and
authorises each of the Facility Agent and the Security Agent to
exercise such rights, remedies, powers and discretions as are
specifically delegated to them by the terms of this Agreement and the
Security Documents together with all reasonably incidental rights,
powers and discretions. The Obligors shall be entitled to assume that
the Facility Agent and the Security Agent represent the Finance
Parties (except the relevant agent), the Reference Banks or the
Majority Banks (as the case may be), and that all consents and notices
given by the Facility Agent or the Security Agent on their behalf are
validly given.
17.2 SEPARATE TREATMENT OF SYNDICATION DIVISION
In acting as Facility Agent or Security Agent, the Facility Agent's
or, as the case may be, the Security Agent's syndication division (or
such other division as may undertake such task) shall be treated as a
separate entity from any other of its divisions or departments and,
despite the provisions of clauses 17 to 21, if the Facility Agent or
Security Agent or any Related Person acts for or transacts business
with any member of a group comprising
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the Parent and its Affiliates or associated companies (the "Parent
Group") or any other person which may be a trade competitor of the
Parent Group or Target Group or any member of either such group or may
otherwise have commercial interests similar to those of any member of
such groups in any capacity in relation to any other matter (including
as a Bank under this Agreement), any information acquired by the
Facility Agent or Security Agent or any Related Person in such other
capacity may be treated as confidential by the Facility Agent or
Security Agent. The Borrowers and Bidco hereby expressly acknowledge
that the Finance Parties and Related Persons may be providing debt
financing, equity capital or other services (including financial
advisory services) to other persons with whom the Parent or the Group
may have conflicting interests in respect of the Facilities or
otherwise.
17.3 ACTIONS OF FACILITY AGENT AND SECURITY AGENT
Each action taken or decision made by the Facility Agent or the
Security Agent under or in relation to any Finance Document with
requisite authority under this Agreement, including on the basis of
the requisite instructions, shall be binding on all the Finance
Parties.
17.4 NOTIFICATION OF RETIREMENT OF FACILITY AGENT, SECURITY AGENT OR
ISSUING BANK
Each of the Facility Agent, the Security Agent and/or the Issuing Bank
may resign its appointment under this Agreement at any time without
assigning any reason therefor by giving not less than 30 days' prior
written notice to that effect to each of the other parties to this
Agreement Provided that no such resignation shall be effective until a
successor for such Facility Agent, Security Agent or Issuing Bank (as
the case may be) is appointed in accordance with the succeeding
provisions of this clause.
17.5 SUCCESSOR FACILITY AGENT, SECURITY AGENT OR ISSUING BANK
If the Facility Agent, Security Agent or Issuing Bank gives notice of
its resignation pursuant to clause 17.4, then any reputable and
experienced bank or other financial institution with an office in
London may after consultation with the Primary Borrower be appointed
as a successor to such Facility Agent, Security Agent or Issuing Bank
(as the case may be) by the Majority Banks but, if no such successor
is so appointed, the Facility Agent, Security Agent or Issuing Bank
(as the case may be) may appoint such a successor itself.
17.6 PROVISIONS RELATING TO SUCCESSOR FACILITY AGENT, SECURITY AGENT OR
ISSUING BANK
With effect from the date that a successor is appointed and accepts
the office of Facility Agent, Security Agent or, as the case may be,
Issuing Bank and executes such necessary documentation under this
clause 17:
(a) as regards the other Finance Parties and the Obligors, such
successor shall become bound by all the obligations of the
Facility Agent, Security Agent or, as the case may be, the
Issuing Bank and become entitled to all the rights,
privileges, powers, authorities and discretions of the
Facility Agent, Security Agent or, as the case may be, the
Issuing Bank under the Finance Documents;
(b) the agency of the retiring Facility Agent, the trusteeship of
the retiring Security Agent or, as the case may be, the duties
of the Issuing Bank shall terminate and the retiring Facility
Agent, Security Agent or, as the case may be, the retiring
Issuing Bank shall be discharged from any further liability or
obligation under the Finance Documents, but without prejudice
to any liabilities which the retiring Facility Agent, Security
Agent or, as the case may be, the retiring Issuing Bank may
have incurred (including with respect to the retiring Issuing
Bank any then outstanding Issued Letter of Credit) before the
termination of its agency, trusteeship and/or duties;
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(c) the costs, charges and expenses of the retiring Facility
Agent, Security Agent or, as the case may be, the retiring
Issuing Bank shall be discharged if recoverable under the
provisions of this Agreement;
(d) the provisions of the Finance Documents shall continue in
effect for the benefit of any retiring Facility Agent,
Security Agent or, as the case may be, the retiring Issuing
Bank in respect of any actions taken or omitted to be taken by
it or any event occurring before the termination of its
agency, trusteeship and/or duties (including with respect to
the retiring Issuing Bank any then outstanding Issued Letter
of Credit);
(e) it is intended that (except only as may be agreed in writing
between any retiring Security Agent and its successor with the
prior approval of the Majority Banks), in the case of the
appointment of successor to the Security Agent, the property,
assets and rights vested in the retiring Security Agent
pursuant to the Security Documents should, with immediate
effect, be vested in such successor Security Agent under the
provisions of the Trustee Xxx 0000, either by operation of law
or, failing that, by assignment or other form of transfer or
conveyance;
(f) at any time and from time to time following such appointment
of a successor to the Security Agent, the retiring Security
Agent shall do and execute all acts, deeds and documents
reasonably required by such successor in order to transfer to
such successor Security Agent (or its nominee, as such
successor may direct) any such property, assets and rights
which shall not have vested in such successor by operation of
law and all such acts, deeds and documents under clauses
17.6(e) and (f) shall be done or, as the case may be, executed
at the cost of the retiring Security Agent; and
(g) the retiring Facility Agent, Security Agent or Issuing Bank
shall (at the expense of the Primary Borrower) provide its
successor with copies of such of its records as its successor
reasonably requires to carry out its functions as such.
17.7 MERGER OF FACILITY AGENT, SECURITY AGENT OR ISSUING BANK
Any corporation into which the Facility Agent, the Security Agent or
the Issuing Bank may be merged or converted or any corporation with
which the Facility Agent, the Security Agent or the Issuing Bank may
be consolidated or any corporation resulting from any merger,
conversion, amalgamation, consolidation or other reorganisation to
which the Facility Agent, the Security Agent or the Issuing Bank shall
be a party shall, to the extent permitted by applicable law, be the
successor Facility Agent, Security Agent or, as the case may be,
Issuing Bank under this Agreement and the other Finance Documents (as
appropriate) without the execution or filing of any document or any
further act on the part of any of the parties to this Agreement or, as
the case may be, the other Finance Documents save that notice of
merger, conversion, amalgamation, consolidation or other
reorganisation shall forthwith be given to the Primary Borrower and
the Banks.
17.8 ROLE OF ISSUING BANK
The Issuing Bank shall act on behalf of the Banks with respect to any
Letters of Credit Issued by it and the documents associated therewith
until such time and except for so long as the Facility Agent may agree
at the request of the Majority Banks to act for such Issuing Bank with
respect thereto.
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18. POWERS
18.1 GENERAL POWERS
Each of the Facility Agent, the Security Agent, the Arrangers and the
Underwriters may:
(a) assume that the Facility Office of each Bank is that
identified with its signature below (or, in the case of a
Substitute, that identified in the Substitution Certificate
under which it became a party to this Agreement) until it has
received from such Bank a notice designating some other office
of such Bank as its Facility Office, and may act upon any such
notice until the same is superseded by a further such notice;
(b) engage and pay for the advice or services of any lawyers,
accountants or other advisers whose advice or services may
seem necessary, expedient or desirable to it and may rely upon
any advice so obtained;
(c) rely as to matters of fact which might reasonably be expected
to be within the knowledge of an Obligor upon a certificate or
statement signed by or on behalf of that Obligor;
(d) rely upon any communication or document believed by it to be
genuine and correct and to have been communicated or signed by
the person by whom it purports to be communicated or signed;
(e) refrain from exercising any right, power or discretion vested
in it under any Finance Document unless and until instructed
by the Majority Banks or, where required, all of the Banks as
to whether or not such right, power or discretion is to be
exercised and, if it is to be exercised, as to the manner in
which it should be exercised, and it shall not be liable for
acting or refraining from acting in accordance with or in the
absence of such instructions;
(f) refrain from taking any step to protect or enforce the rights
of any Finance Party under any Finance Document and from
beginning any legal action or proceeding arising out of or in
connection with any Finance Document until it has been
indemnified and/or secured as it may require (whether by way
of payment in advance or otherwise) against all costs, claims,
expenses (including legal fees) and liabilities which it will
or may expend or incur in complying with such instructions;
(g) refrain from doing anything which would or might in its
opinion be contrary to any applicable law or any requirements
(whether or not having the force of law) of any governmental,
judicial or regulatory body or otherwise render it liable to
any person, and do anything which is in its opinion necessary
to comply with any such applicable law or requirement;
(h) do any act or thing in the exercise of any of its powers and
duties under the Finance Documents which may lawfully be done
and which in its absolute discretion it deems advisable for
the protection and benefit of the Finance Parties
collectively;
(i) perform any of its duties, obligations and responsibilities
under the Finance Documents by or through its personnel or
agents; and
(j) accept deposits from, lend money (secured or unsecured) to and
generally engage in any kind of banking or other business
with, be the owner or holder of any shares or other securities
of, and provide advisory or other services to the Parent and
its Affiliates, and/or the Group or any of the Finance
Parties, without any liability to account.
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18.2 SPECIFIC POWERS OF FACILITY AGENT AND SECURITY AGENT
Each of the Facility Agent and the Security Agent:
(a) may assume that:
(i) any representation made by the Obligors in or in
connection with the Finance Documents is true;
(ii) no Default has occurred;
(iii) no Obligor is in breach of or default under its
obligations under any Finance Document; and
(iv) any right, power, authority or discretion vested in
any of the Finance Documents upon the Majority Banks,
all Banks, or any other person or group of persons
has not been exercised,
unless the Facility Agent or, as the case may be, the Security
Agent has in its capacity as agent (or where relevant, as
agent and trustee) for the relevant Finance Parties received
actual notice to the contrary from any other party to any
Finance Document;
(b) shall be at liberty to place any Finance Document and any
other instruments, documents or deeds delivered to it pursuant
thereto or in connection therewith for the time being in its
possession in any safe deposit, safe or receptacle selected by
the Security Agent or Facility Agent, as the case may be, or
with any bank, any company whose business includes undertaking
the safe custody of documents or any firm of lawyers of good
repute and may make any such arrangements as it thinks fit for
allowing the Primary Borrower access to, or its solicitors or
auditors possession of, such documents when necessary or
convenient and, in the absence of gross negligence or wilful
default on its part, shall not be responsible for any loss
thereby incurred;
(c) may, whenever it thinks fit, delegate by power of attorney or
otherwise to any person or persons all or any of the rights,
trusts, powers, authorities and discretion vested in it by any
Finance Document and such delegation may be made upon such
terms and subject to such conditions and subject to such
regulations as the Security Agent or Facility Agent, as the
case may be, may think fit and shall not be bound to supervise
the proceedings or (in the absence of gross negligence or
wilful default on its part) be in any way responsible for any
loss incurred by reason of any misconduct or default on the
part of any such delegate;
(d) notwithstanding anything else herein contained, may refrain
from doing anything which would or might in its opinion be
contrary to any relevant law of any jurisdiction or any
relevant directive or regulation of any agency of any state or
which would or might otherwise render it liable to any persons
and may do anything which is, in its opinion, necessary or
desirable to comply with any such law, directive or
regulations;
(e) may indemnify itself and/or every attorney, agent or other
person appointed by it under any Finance Document out of the
Trust Property against all Liabilities (as defined in clause
20.3) and/or in respect of any other matter or thing done or
omitted to be done in any way relating to any Finance Document
or by law and/or acting as Facility Agent or Security Agent
(as the case may be);
(f) shall have the power to institute, prosecute and defend any
suits or actions or other proceedings affecting the Facility
Agent or Security Agent respectively or the Trust Property and
to compromise any matter or difference or submit any such
matter to arbitration and to compromise or compound any debts
owing to the Facility Agent or Security Agent respectively or
any other claims against it or any such terms as it shall deem
sufficient and to make petition upon such terms as it shall
deem desirable;
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(g) save as otherwise expressly provided herein, shall have
absolute discretion as to the exercise or non exercise (and as
to the manner and time of any such exercise) of all rights,
trust, powers, authorities and discretions vested in it by any
of the Finance Documents but shall be entitled to refrain from
exercising any right, power or discretion vested in it as
agent or trustee under any Finance Document unless and until
instructed by the Majority Banks or, where required under this
Agreement, all Banks as to whether or not such right, power or
discretion is to be exercised and, if it is to be exercised,
as to the manner in which it should be exercised; and
(h) shall have absolute discretion as to the exercise or
non-exercise (and as to the manner and time of any such
exercise) of all rights, trust, powers, authorities and
discretions in relation to any matter, or in any context, not
expressly provided for by this Agreement to act or, as the
case may be, refrain from acting in accordance with the
instructions of the Majority Banks;
(i) shall have the power to give or enter into any indemnity,
warranty, guarantee, undertaking or covenant or to enter into
any type of agreement as it shall, with the approval of the
Majority Banks (or, where required under this Agreement, all
Banks) and subject to all other provisions of the Finance
Documents, think fit in relation to the Trust Property;
(j) shall (subject to clause 19) be entitled (in its own name or
in the names of nominees) to invest moneys from time to time
including in the case of the Security Agent moneys forming
part of the Trust Property or otherwise held by it as a
consequence of any enforcement of the security constituted by
the Security Documents which, in the opinion of the Facility
Agent or (as the case may be) the Security Agent, it would not
be practicable to distribute immediately by placing the same
on deposit in the name or under the control of itself as it
may think fit without being under any duty to diversify the
same and it shall not be responsible for any loss due to
interest rate or exchange rate fluctuations;
(k) with respect to its own Commitments and Contributions (if
any), shall have the same rights and powers under this
Agreement and the other Finance Documents as any other Bank
and may exercise the same as though it were not performing the
duties and functions delegated to it under this Agreement
and/or the other Finance Documents and the term "BANKS" shall,
unless the context clearly otherwise indicates, include the
Security Agent and the Facility Agent in their individual
capacities as Banks.
18.3 SPECIFIC POWERS OF SECURITY AGENT
The Security Agent:
(a) shall have all the powers and discretions conferred upon
trustees by the Trustee Xxx 0000 (to the extent not
inconsistent herewith) and upon the Security Agent by this
Agreement and the other Finance Documents and upon a receiver
appointed under any Finance Documents (as though the Security
Agent were a receiver thereunder);
(b) shall, without prejudice to any of the powers, discretions and
immunities conferred upon trustees by law (and to the extent
not inconsistent with the provisions of this Agreement or any
of the Security Documents), have all the same powers and
discretions as a natural person acting as the beneficial owner
of such property and/or as are conferred upon the Security
Agent by this Agreement and/or any Security Document but so
that the Security Agent may only exercise such powers and
discretions to the extent that it is authorised to do so by
the provisions of this Agreement;
(c) shall have full power to determine all questions and doubts
arising in relation to the interpretation or application of
any of the provisions of this Agreement or any of the Security
Documents as it affects
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the Security Agent and every such determination (whether made
upon a question actually raised or implied in the acts or
proceedings of the Security Agent) shall be conclusive and
shall bind all the other parties to this Agreement and the
Security Documents;
(d) may at any time appoint any person (whether or not a trust
corporation) to act either as a separate trustee or as a
co-trustee jointly with it (i) if it considers such
appointment to be in the interests of the Finance Parties or
(ii) for the purposes of conforming to any legal requirements,
restrictions or conditions which the Security Agent deems
relevant for the purposes hereof, and shall give prior notice
to the Primary Borrower and the Facility Agent of any such
appointment; and any person so appointed shall have such
powers, authorities and discretions (including the receipt and
payment of money) and such duties and obligations as shall be
conferred or imposed on such person by the instrument of
appointment and shall have the same benefits under clauses 17
to 23 as the Security Agent; and the Security Agent shall have
power in like manner to remove any person so appointed; and
may pay to any person so appointed, and any costs, charges and
expenses incurred by such person in performing its functions
pursuant to such appointment, shall for the purposes hereof be
treated as costs, charges and expenses incurred by the
Security Agent in performing its function as trustee
hereunder;
(e) has at its absolute discretion the right to make or retain or
register in the names of nominees any investment of any part
or all of the Trust Property;
(f) without prejudice to the provisions of any of the Finance
Documents, shall have the right to, but shall not be under any
obligation to, insure any of the Trust Property or to require
any other person to maintain any such insurance and (in the
absence of gross negligence or wilful default on the part of
the Security Agent) shall not be responsible for any loss
which may be suffered by any person as a result of the lack of
or inadequacy or insufficiency of any such insurance;
(g) may at its sole discretion, and without reference to the
Finance Parties, release any asset or assets from the Security
Documents to the extent that their disposal or release is
permitted or required by the terms of this Agreement or any of
the Security Documents;
(h) shall be entitled to make the deductions and withholdings (on
account of Taxes or otherwise) from payments to the Facility
Agent hereunder which it is required by any applicable law to
make, and to pay all Taxes which may be assessed against it in
respect of any of the Trust Property, in respect of anything
done by it in its capacity as trustee or otherwise by virtue
of its capacity as trustee;
(i) shall be entitled to carry out all dealings with the other
Finance Parties through the Facility Agent and shall be
entitled to rely on the Facility Agent's certificate as to the
entitlement of all or any of the Finance Parties; and
(j) shall be authorised to execute each of the Security Documents
on behalf of the Finance Parties.
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19. DUTIES
19.1 SPECIFIC DUTIES OF THE FACILITY AGENT AND THE SECURITY AGENT
Each of the Facility Agent and the Security Agent (for the benefit of
the other Finance Parties only) shall:
(a) promptly upon receipt inform each Bank of the contents of any
notice or document or other information received by it on or
after the date of this Agreement in its capacity as Facility
Agent under this Agreement from any Obligor or as Security
Agent under the Security Documents from any Obligor;
(b) promptly notify each Bank of the occurrence of any Default or
any material breach by any Obligor in the due performance of
its obligations under this Agreement or any Security Document
of which the Facility Agent or, as the case may be, the
Security Agent (in its capacity as such) has received written
notice from any other party to any Finance Document;
(c) save as otherwise provided herein, act in accordance with any
instructions given to it by the Majority Banks (which
instructions shall be binding on all of the Finance Parties);
(d) if so instructed by the Majority Banks (or, where so required
under this Agreement, all Banks), refrain from exercising any
right, remedy power or discretion vested in it under the
Finance Documents;
(e) except as regards purely administrative acts, consult whenever
reasonably practicable with the Banks before doing or
refraining from doing any act or thing in the exercise of its
powers as agent and/or trustee;
(f) to the extent that it receives or recovers monies following
the service of a notice in accordance with Clause 12.2
pursuant to or as a result of any breach of any Finance
Document to be applied in discharging any obligation (whether
actual or contingent, present or future) of any Obligor under
any Finance Document, apply such monies (without prejudice to
the respective rights of the Facility Agent or the Security
Agent pursuant to any Finance Document to credit any monies
received by it to any suspense account) as between the Finance
Parties in accordance with clause 8.9 as if they were a
partial payment; and
(g) shall make each such application and/or distribution as soon
as is practicable after the relevant moneys are received by,
or otherwise become available to, it save that (without
prejudice to any other provision contained in any of the
Security Documents) the Security Agent (acting on the
instructions of the Facility Agent), the Facility Agent or any
Receiver may credit any moneys received by it to a suspense
account for so long and in such manner as the Security Agent,
Facility Agent or such Receiver may from time to time
determine with a view to preserving the rights of the Finance
Parties or any of them to prove for the whole of their
respective claims against any Borrower or any other person
liable.
19.2 SPECIFIC DUTIES OF SECURITY AGENT
The Security Agent (for the benefit of the other Finance Parties only)
shall:
(a) during the Trust Period hold the Trust Property as trustee
upon trust for the Finance Parties from time to time and (as
well after as before enforcement) perform and exercise (as the
case may be) the obligations, rights and benefits vested or to
be vested in the Security Agent by the Finance Documents or
any document entered into pursuant thereto in accordance with
the provisions of Clauses 17 to 23.
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(b) (subject to the provisions contained in clause 3.3 (Certain
Funds Period)) only make demand under the Security Documents
and to the extent practicable enforce the security constituted
by the Security Documents:
(i) before the Final Repayment Date at the direction of
the Majority Banks, if any of the Facilities has been
declared to be immediately due and payable by the
Facility Agent under clause 12.2; or
(ii) on or after the Final Repayment Date at the direction
of any Bank, if any Borrower defaults in repaying the
Facilities in full on the Final Repayment Date or in
paying any other amount due by any Borrower to any
Finance Party, under the Finance Documents; or
(iii) at any time, if requested to do so by a member of the
Group which has granted security to the Security
Agent;
(c) hold any recoveries which it receives under the security
constituted by the Security Documents on trust for
distribution to the Finance Parties, in accordance with the
provisions of this clause 19 and shall hold the security
constituted by the Security Documents on trust for the Finance
Parties, to give effect to this Agreement and shall exercise
its rights, powers and duties under the Security Documents
(and particularly those concerned with the protection and
enforcement of the security afforded by such documents) and/or
under this Agreement for the benefit of all Finance Parties;
and
(d) carry out all dealings with the other Finance Parties through
the Facility Agent.
20. EXONERATION
20.1 ABSENCE OF OBLIGATION ON INITIAL FINANCE PARTIES
Despite anything to the contrary expressed or implied in any Finance
Document, each of the Facility Agent, the Security Agent, the Issuing
Bank, the Arrangers and the Underwriters shall:
(a) not be bound to enquire as to and will have no liability in
respect of:
(i) whether or not any representation or warranty made by
any Obligor under or in connection with any Finance
Document is true complete or adequate;
(ii) the occurrence or otherwise of any Default;
(iii) the performance by any Obligor of its obligations
under any Finance Document; or
(iv) any breach or default by any Obligor of or under its
obligations under any Finance Document;
(b) not be bound to account to any Finance Party for any fee or
other sum or the profit element of any sum received by it for
its own account;
(c) not be bound to disclose to any other person any information
relating to any member of the Group if such disclosure would
or might in its opinion constitute a breach of any law or
regulation or duty of confidentiality or be otherwise
actionable at the suit of any person;
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(d) not be under any fiduciary or other duty towards any Finance
Party or under any obligations other than those expressly
provided for in any Finance Documents;
(e) not be liable (in the absence of its own gross negligence or
willful default):
(i) for any failure, omission, or defect in the due
execution, delivery, validity, legality, adequacy,
performance, enforceability, or admissibility in
evidence of any Finance Document or any
communication, report or other document delivered
under any Finance Document; or
(ii) in respect of its exercise or failure to exercise any
of its powers and duties under any Finance Document;
or
(f) not have any duties, obligations or liabilities other than
those expressly provided for in this Agreement and (in the
case of the Security Agent) the Security Documents and have no
liability or responsibility (in the absence of its own gross
negligence or wilful default) of any kind to:
(i) any member of the Group arising out of or in relation
to any failure or delay in the performance or breach
by any Finance Party (other than itself) of any of
its obligations under or in connection with any
Finance Document; or
(ii) any Finance Party arising out of or in relation to:
(aa) the financial condition of any member of the
Group; or
(bb) any failure or delay in the performance or
breach by any Obligor of any of its
obligations under or in connection with any
Finance Document or the Facilities;
(g) not be bound to check or enquire on behalf of any other
Finance Party into or liable for the adequacy, accuracy,
execution, genuineness, enforceability, admissibility in
evidence or completeness of any communication delivered to it
under any of the Finance Documents, any legal or other
opinions, reports, valuations, certificates, appraisals or
other documents delivered or made or required to be delivered
or made at any time in connection with any of the Finance
Documents, any security to be constituted thereby or any other
report or other document, statement or information circulated,
delivered or made, whether orally or otherwise and whether
before, on or after the date of this Agreement;
(h) be entitled to accept without enquiry, requisition or
objection such right and title as any Obligor may have to that
part of the property belonging to it (or any part thereof)
which is the subject matter of any Finance Document and not be
bound or concerned to investigate or make any enquiry into the
right or title of such person to such property (or any part
thereof) or, without prejudice to the foregoing, to require
such person to remedy any defect in such person's right or
title as aforesaid;
(i) in enforcing the security constituted by the Finance Documents
and in determining the respective entitlements of the Finance
Parties, be entitled to rely on its own account;
(j) be entitled to invest monies which in the opinion of the
Facility Agent or Security Agent (as the case may be) may not
be paid out promptly following receipt in the name or under
the control of such Facility Agent or Security Agent (as the
case may be) in any of the investments for the time being
authorised by law for the investment by trustees of trust
monies or in any other investments whether similar to the
aforesaid or not which may be requested by the Majority Banks
or by placing the same
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on deposit in the name or under the control of the Facility
Agent or the Security Agent as the Facility Agent or Security
Agent (as the case may be) may think fit and the Facility
Agent and Security Agent (as the case may be) may at any time
vary or transpose any such investments for or into any others
of a like nature and (in the absence of gross negligence or
wilful default on the part of such Facility Agent or Security
Agent) shall not be responsible for any loss thereby incurred
whether due to depreciation in value of such investments or
any other reason whatever;
(k) not be bound to take any steps or perform any obligation or
exercise any right or fulfil any request if to do so might in
its sole opinion breach or conflict with or contradict or be
contrary to any rule, regulation, law, regulatory requirement,
court order or judgment in any jurisdiction or expose the
Facility Agent, the Security Agent, the Arrangers or the
Underwriters to liabilities in any jurisdiction or be
otherwise actionable at the suit of any person;
(l) not be liable for any failure:
(i) to require the deposit with it of any deed or
document certifying, representing or constituting the
title of any of the Obligors to any of the property
mortgaged, charged, assigned or otherwise encumbered
by or pursuant to any of the Security Documents;
(ii) to obtain any licence, consent or other authority for
the execution, delivery, validity, legality,
adequacy, performance, enforceability or
admissibility in evidence of any of the Finance
Documents;
(iii) to register or notify any of the foregoing in
accordance with the provisions of any of the
documents of title of any of the Obligors;
(iv) to effect or procure registration of or otherwise
protect any of the security created by the Security
Documents by registering the same under any
applicable registration laws in any territory;
(v) to take, or to require any of the Obligors to take,
any steps to render the security created by the
Security Documents effective or to secure the
creation of any ancillary charge under the laws of
any other jurisdiction; or
(vi) to require any further assurances in relation to any
of the Security Documents;
(vii) to become or remain a mortgagee or heritable creditor
in possession (or equivalent in any foreign
jurisdiction);
(viii) to take or omit to take any other action under or in
connection with the Security Documents or any aspect
thereof (save as otherwise expressly provided in
clause 19); or
(ix) in the case of each of the Facility Agent, Arrangers
and Underwriters, by the Security Agent to perform or
discharge any of its duties or obligations under the
Security Documents;
(m) in the case of the Security Agent, not be bound to supervise,
or be responsible for any loss incurred by reason of any act
or omission of, any trustee or co-trustee of the Security
Agent if the Security Agent shall have exercised reasonable
care in the selection of such trustee or co-trustee; and
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(n) have no liability (save as otherwise provided in clauses 17 to
23) otherwise in connection with the Facilities or their
negotiations or for acting (or as the case may be refraining
from acting) in connection with the instructions of the
Majority Banks.
20.2 INDEMNITY FROM BANKS
Each Bank and the Issuing Bank shall, in its Proportion, on demand by
the Facility Agent, the Security Agent or any Arranger from time to
time, indemnify the Facility Agent or, as the case may be, the
Security Agent or the Arranger, against any and all fees (to the
extent properly chargeable by the Facility Agent or, as the case may
be, the Security Agent or the Arranger under any Finance Document but
not promptly recovered from the Obligors), costs, claims and expenses
and liabilities including any VAT thereon:
(a) to which the Facility Agent or, as the case may be, the
Security Agent becomes subject by reason of it acting as agent
or security trustee; or
(ii) incurred by the Facility Agent or, as the case may be, the
Security Agent or any attorney, agent, delegate or other
person appointed by the Facility Agent or the Security Agent
under any Finance Document in relation to or arising out of
the taking or holding of any of the security given or created
by or pursuant to any of the Finance Documents or in the
execution or purported or attempted execution of the rights,
trusts, powers, authorities, discretions and obligations
vested in it; or
(iii) which it is otherwise entitled to recover from any Obligor,
in each case under any of the Finance Documents or by law, including
those relating to all actions, proceedings, claims and demands in
respect of any matter or thing done or omitted in any way relating to
the Finance Documents any exercise or non exercise of any right, power
or discretion, and all amounts due to the Facility Agent or the
Security Agent by way of remuneration for acting as agent or trustee
(as the case may be) under any of the Finance Documents (collectively
the "LIABILITIES"). Each Borrower shall counter-indemnify the Banks
and the Issuing Bank against all payments by them under this clause
20.2. If a Bank or the Issuing Bank (referred to in this clause 20.2
as a "defaulting Bank") fails to pay its due contribution under this
indemnity, then the Facility Agent or, as the case may be, the
Security Agent may (without prejudice to its other rights and
remedies) deduct the amount due from the defaulting Bank from any sums
which are then or afterwards in its possession which would otherwise
be payable to the defaulting Bank.
20.3 INDEMNITY FROM TRUST PROPERTY
The Security Agent and every employee, officer, trustee or co-trustee
or other person appointed by it in connection with its appointment
under the Security Documents (each a "PROTECTED PARTY") shall be
entitled to be indemnified out of the Trust Property in respect of all
liabilities, damages, costs, claims, charges or expenses whatsoever
properly incurred or suffered by any Protected Party:
(a) in the execution or exercise or bona fide purported execution
or exercise of the trusts, rights, powers, authorities,
discretions and duties created or conferred by or pursuant to
the Security Documents;
(b) as a result of any breach by a member of the Group of any of
its obligations under any Security Document;
(c) in respect of any Environmental Claim made or asserted against
a Protected Party which would not have arisen if the Security
Documents had not been executed; and
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(d) in respect of any matter or thing done or omitted in any way
relating to the Trust Property or the provisions of any of the
Security Documents.
The rights conferred by this clause 20.3 are without prejudice to any
right to indemnity by law given to trustees generally and to any
provision of the Security Documents entitling the Security Agent or
any other person to an indemnity in respect of, and/or reimbursement
of, any liabilities, damages, costs, claims, charges or expenses
incurred or suffered by it in connection with any of the Security
Documents or the performance of any duties under any of the Security
Documents. Nothing contained in this clause 20.3 shall entitle any
Protected Party to be indemnified in respect of any liabilities,
damages, costs, claims, charges or expenses to the extent that the
same arise from such person's own gross negligence or wilful
misconduct.
20.4 DISCLAIMER
Neither the Facility Agent, the Security Agent, nor any Arranger or
Underwriter accepts responsibility to any other Finance Party for the
accuracy and/or completeness of any information supplied in connection
with any Finance Document or for the legality, validity,
effectiveness, adequacy or enforceability of any Finance Document and
neither the Facility Agent, the Security Agent, nor any Arranger or
Underwriter shall be under any liability to any other Finance Party as
a result of taking or omitting to take any action in relation to any
Finance Document (except in the case of its gross negligence or wilful
misconduct).
20.5 NO ACTIONS AGAINST INDIVIDUALS
Each of the Banks agrees that it will not assert or seek to assert
against any director, officer or employee of the Facility Agent, the
Security Agent, any Arranger or Underwriter any claim it may have
against any of them in respect of the matters referred to in clause
20.4.
20.6 CREDIT APPRAISALS
It is agreed by each Bank, by virtue of its execution of this
Agreement or its accession to this Agreement, that it has itself been,
and will continue to be, solely responsible for making its own
independent appraisal of and investigations into the financial
condition, creditworthiness, condition, affairs, status and nature of
each member of the Group, and, accordingly, each Bank confirms to the
Facility Agent, the Security Agent, and each Arranger and Underwriter
that it:
(a) does not enter into this Agreement nor accede to it on the
basis of and has not relied on and will not rely on any
statement, opinion, forecast or other representation (whether
negligent or innocent) or warranty or other provision (in any
case whether oral, written, express or implied) made by, or
agreed to, the Facility Agent, the Security Agent, any
Arranger, any Underwriter or any other Bank to induce it to
enter into this Agreement or any other Finance Document except
as expressly set out therein and the remedies available in
respect of any such misrepresentation or untrue statement made
to such Bank shall be limited to a claim for breach of
contract under this Agreement; and
(b) has not relied on and will not rely on the Facility Agent, the
Security Agent, any Arranger, any Underwriter or any other
Bank:
(i) to check or enquire on its behalf into the adequacy,
accuracy or completeness of any information provided
by or on behalf of any member of the Group in
connection with any Finance Document and/or the
transactions contemplated in the Finance Documents
(whether or not such information has been or is after
the date of this Agreement circulated to such Bank
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by the Facility Agent, the Security Agent, any
Arranger or Underwriter or as the case may be any
other Bank); or
(ii) to assess or keep under review on its behalf the
financial condition, creditworthiness, condition,
affairs, status or nature of any member of the Group.
Provided that clause 20.6(a) shall not apply to any statement or
representation made fraudulently, or to any provision of this
Agreement which was induced by fraud for which the remedies available
shall be all those available under English law.
20.7 EXONERATION OF RELATED PERSONS
All the provisions of this clause 20 and of any other provision of any
Finance Document protecting (including indemnifying) or limiting the
liability of any Finance Party, or exonerating it from liability or
responsibility, which may enure to the benefit of the such Finance
Party shall also be deemed to be given for the benefit of the Security
Agent and all Related Persons to whom they are capable of relating or
in respect of whom they are capable of taking effect.
20.8 PRE-CONTRACTUAL EFFECT OF EXONERATION
For the avoidance of doubt, the guarantee, indemnity, exonerations and
other protections in favour of the Facility Agent, the Security Agent,
the Arrangers, the Underwriters and the Related Persons contained in
the Finance Documents shall take effect in respect of all events,
action and omissions occurring before the execution and completion of
this Agreement as well as events, actions and omissions occurring on
or after its execution and completion and to the extent that any
liability should be adjudged to have arisen prior to the date of this
Agreement, such liability is hereby completely released.
20.9 COMMON PARTIES
Notwithstanding that the Facility Agent and the Security Agent may
from time to time be the same entity, the Facility Agent and the
Security Agent have entered into this Agreement in their separate
capacities as agent or (as appropriate) security agent and trustee for
the Finance Parties provided that, where this Agreement provides for
the Facility Agent or Security Agent to communicate with or provide
instructions to another Facility Agent or Security Agent while the two
parties in question are the same entity, it will not be necessary for
there to be any such formal communication or instructions.
21. ENFORCEMENT AND RECOVERIES
21.1 OBLIGATIONS OWED BY OBLIGORS TO FINANCE PARTIES
Each Obligor agrees that:
(a) the security comprised in the Security Documents may be
enforced, realised and distributed by the Security Agent and
Facility Agent in accordance with their respective powers and
obligations to the Finance Parties set out in clauses 18 and
19;
(b) the obligations and liabilities the subject of the Security
Documents shall only be discharged by virtue of receipt or
recovery by the Security Agent of monies, or of payments made
by the Security Agent
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hereunder, to the extent that the ultimate recipient actually
receives monies from the Security Agent hereunder;
(c) if it receives any sum from any person which, pursuant to the
Finance Documents, should have been paid to the Security
Agent, such sum shall be held on trust for the Finance Parties
and shall forthwith be paid over to the Security Agent;
(d) it hereby waives, to the extent permitted under applicable
law, all rights it may otherwise have to require that the
security created pursuant to the Facility Documents be
enforced in any particular order or manner or that any sum
received or recovered from any person or by virtue of the
enforcement of any of the security or any other Encumbrance of
any nature over any assets or revenues, which is capable of
being applied in or towards discharge of any of the Secured
Obligations is so applied, whether on receipt or recovery or
at any time thereafter.
21.2 OBLIGATIONS OWED BY FINANCE PARTIES TO FACILITY AGENT AND SECURITY
AGENT
The Finance Parties agree between themselves:
(a) to furnish to the Facility Agent, for transmission to the
Security Agent, such information as the Security Agent may
reasonably specify (through the Facility Agent) as being
necessary or desirable for the purpose of enabling the
Security Agent to perform its functions as trustee or
administrator;
(b) to co-operate with each other and with the Security Agent and
any Receiver under the Security Documents in realising the
property and assets subject to the Security Documents and in
ensuring that the net proceeds realised under the Security
Documents after deduction of the expenses of realisation are
applied in accordance with clause 19.1; and
(c) not to take any action separately to enforce or attempt to
enforce any of the Security Documents or to exercise any
rights, discretions or powers or to grant any consents or
releases under or pursuant to any of the Security Documents or
otherwise have direct recourse to the security and/or
guarantees constituted by any of the Security Documents.
21.3 PERPETUITY PERIOD
The trusts constituted or evidenced in or by the Security Documents
shall remain in full force and effect during the Trust Period.
22. DETERMINATION OF MATTERS
22.1 MAJORITY BANK MATTERS: AMENDMENTS AND WAIVERS
Except as provided in clause 22.4 and 22.5 (Unanimous consent), with
the prior written consent of the Majority Banks, the Facility Agent
(or as the case may be, the Security Agent) and the Primary Borrower
may from time to time:
(a) enter into written amendments, supplements or modifications to
the Finance Documents (however fundamental) for the purpose of
adding any provisions to the Finance Documents or changing in
any manner the rights and/or obligations of any of the
Borrowers, the Facility Agent, the Security Agent and the
Banks; and
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(b) execute and deliver to any Borrower a written instrument
waiving prospectively or retrospectively, on such terms and
conditions as the Facility Agent (or, as the case may be,
Security Agent) may specify in such instrument, any of the
requirements of any of the Finance Documents, or giving any
consents or approvals thereunder.
22.2 DOCUMENTATION OF MAJORITY BANK CHANGES
Any action so authorised and effected by the Facility Agent or the
Security Trustee under clause 22.1 shall be documented in such manner
as the Facility Agent shall (with the approval of the Majority Banks)
determine, shall be promptly notified to the Banks by the Facility
Agent and (without prejudice to the generality of clause 17.3) shall
be binding on all the Banks.
22.3 MAJORITY BANK MATTERS: ENFORCEMENT
If the Facility Agent makes a declaration under clause 12.2 the
Facility Agent shall, in the names of all the Banks, take such action
on behalf of the Banks and conduct such negotiations with any Borrower
and any other members of the Group and generally administer the
Advances in accordance with the wishes of the Majority Banks. All the
Banks shall be bound by the provisions of this clause 22.3 and no Bank
shall be entitled to take action independently against any Borrower or
any other member of the Group without the prior consent of the
Majority Banks.
22.4 ALL BANK MATTERS: AMENDMENTS AND WAIVERS
Except with the prior written consent of all the Banks, the Facility
Agent shall not have authority on behalf of the Banks to agree with
any Borrower any amendment or modification to this Agreement or to
vary or waive breaches of or defaults under or otherwise excuse
performance of any provision of this Agreement by any Obligor, if the
effect of such would be to:
(a) reduce the Applicable Margin;
(b) postpone the due date or reduce the amount of any payment of
principal, interest, commitment commission or other amount
payable by any Borrower under this Agreement;
(c) change the currency in which any amount is payable by any
Borrower under this Agreement;
(d) have the effect of changing the amount of any Facility, any
Bank's Commitment or the principal or face amount or currency
of any Advance;
(e) extend any period during which a Drawdown Notice may be
delivered;
(f) change any provision of this Agreement which expressly
requires the approval or consent of all the Banks such that
the relevant approval or consent may be given otherwise than
with the sanction of all the Banks;
(g) change the definitions of Borrowed Moneys, Security Interests,
Event of Default, Major Default, Majority Banks, Default,
Cancellation Date, Certain Funds Period, Available Commitment
Termination Date or Substitution Certificate;
(h) change clause 15.2 (Pro-rata Payments) or clause 3.3; or
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(i) change this clause 22 or clause 23.
22.5 ALL BANK MATTERS: SECURITY
Except with the prior written consent of all the Banks, the Facility
Agent shall not have authority on behalf of the Banks to authorise the
Security Agent to agree amendments or modifications to the Security
Documents with the members of the Group (or the Parent on their
behalf) and/or vary or waive breaches of, or defaults under, or
otherwise excuse performance of, any provision of any of the Security
Documents by any member of the Group if the effect of such would be
to:
(a) release any member of the Group from the security constituted
by any Security Document;
(b) release any of the Charged Assets from the security
constituted by any Security Document other than any such
release (pursuant to (a) or (b)) as part of a disposal made
pursuant to the terms of this Agreement or once the Facilities
have been repaid and/or discharged in full and the Finance
Period has terminated;
(c) agree with the Parent or any other member of the Group any
amendment of, or action in relation to, any of the Security
Documents which would have the effect of:
(i) extending the due date or reducing the amount of any
payment under any Security Document or
(ii) changing the currency in which any amount is payable
under any Security Document.
22.6 EXECUTION OF NEW SECURITY
For the purposes of this clause 22 it is expressly agreed and
acknowledged that the execution of a guarantee and/or deed of
adherence by a new Subsidiary or other Obligor or proposed Obligor or
any deed or instrument pursuant to a further assurance provision in
this Agreement or the other Finance Documents shall not constitute an
amendment or modification to, or variation of, any of the Finance
Documents.
22.7 VETO OF SECURITY AGENT AND FACILITY AGENT
Regardless of any other provision in this Agreement, the Facility
Agent, or as the case may be, the Security Agent, shall not be obliged
to agree to any such waiver, amendment, supplement or modification if
it would:
(a) amend, modify or waive any provision of clause 22; or
(b) otherwise amend, modify or waive any of the Facility Agent's,
the Arrangers' or the Security Agent's rights under any of the
Finance Documents or subject the Facility Agent or the
Security Agent to any additional obligations under such
documents.
22.8 ADMINISTRATIVE DETERMINATIONS
The Facility Agent may determine purely administrative matters without
reference to the Banks.
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23. BASIS OF DECISIONS
23.1 MEANING OF MAJORITY BANKS
Where this Agreement or any of the Security Documents provides for any
matter to be determined by reference to the opinion of, or to be
subject to the consent or request of, the Majority Banks or for any
action to be taken on the instructions of the Majority Banks, such
opinion, consent, request or instructions shall (as between the Banks)
only be regarded as having been validly given or issued by the
Majority Banks if all the Banks shall have received prior notice of
the matter on which such opinion, consent, request or instructions are
required to be obtained and the relevant majority of Banks shall have
given or issued such opinion, consent, request or instructions, but so
that (as between the Obligors and the Finance Parties) the Obligors
shall each be entitled (and bound) to assume that such notice shall
have been duly received by each Bank and that the relevant majority
shall have been obtained to constitute Majority Banks when notified to
this effect by the Facility Agent whether or not this is the case.
23.2 NOTICE TO MAJORITY BANKS
If, within 10 Banking Days (or in the case of any approval sought
under clause 10.4, 2 Banking Days) of the Facility Agent despatching
to each Bank a notice requesting instructions (or confirmation of
instructions) from the Banks or the agreement of the Banks to any
amendment, modification, waiver, variation or excuse of performance
for the purposes of, or in relation to, any of the Finance Documents,
the Facility Agent has not received a reply specifically giving or
confirming or refusing to give or confirm the relevant instructions
or, as the case may be, approving or refusing to approve the proposed
amendment, modification, waiver, variation or excuse of performance,
then (subject to clause 23.4) the Facility Agent shall treat any Bank
which has not so responded as having indicated a desire to be bound by
the wishes of 66 2/3 per cent. of those Banks (measured in terms of
the relevant Contributions or, if none, the relevant Commitments of
those Banks) which have so responded. Any Bank which notifies the
Facility Agent of a wish or intention to abstain on any particular
issue shall be treated as if it had not responded.
23.3 MEANING OF ALL BANKS
Where this Agreement or any other Finance Document, provides for any
matter to be determined by reference to the opinion of, or to be
subject to the consent of or request of all of the Banks or the Banks
acting unanimously or for any action to be taken on the instruction of
all the Banks such opinion, consent, request or instructions shall (as
between the Banks) only be regarded as having been validly given or
issued by all the Banks (or the Banks acting unanimously) if all the
Banks shall have received prior notice (the "AGENT'S NOTICE") of such
matter containing a request for written instructions from such Bank to
be received by the Facility Agent or, as the case may be, the Security
Agent within ten Banking Days of the receipt (or the deemed receipt
pursuant to clause 25.1(b)) of the Agent's Notice. If, in respect of
a Bank, the Facility Agent or the Security Agent, as appropriate:
(a) shall not have received written instructions in respect of
such matter from such Bank; and
(b) the Facility Agent or Security Agent shall have received
written instructions in respect of such matter from at least
five other Banks,
in each case within such time period (and subject to clause 23.4),
such Bank shall be deemed to have irrevocably renounced and waived its
right to make any such determination, approval, consent or provide
instructions to the Facility Agent or the Security Agent in respect
of such matter; shall not have any rights, recourse or remedy against
the Facility Agent or the Security Agent in respect of such matter;
and shall be bound (as shall each of the Obligors) by the
determination, approval, consent or instructions of the other Banks in
respect of such
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matter. Clauses 23.1 and 23.2 shall not apply in relation to those
matters which are to be decided by all the Banks.
23.4 LATE RESPONSES
In any case where a Bank fails to respond within the time limit set
down under clauses 23.2 or 23.3, such Bank's response, if it responds
before any determination or instruction is acted upon or communicated
to any Obligor, will be taken into account as if it had been received
within the time limit Provided that the Facility Agent has received
actual notice of such response before any such action or
communication.
23.5 COSTS
If any Borrower requests, or if the Facility Agent requires in
accordance with clause 10.3(c) or any other provision of this
Agreement, any amendment, supplement, modification or waiver under
clause 22.1 (Majority Bank matters) or clauses 22.4 or 22.5 (All Bank
matters), then the Borrowers shall, on demand by the Facility Agent,
reimburse the Facility Agent for all costs and expenses (including
legal fees), together with any VAT on them, incurred by the Facility
Agent in the negotiation, preparation and execution of any written
instrument contemplated by clause 22.1 (Majority Bank matters) or
clauses 22.4 or 22.5 (All Bank matters).
23.6 NO PARTNERSHIP
This Agreement shall not and shall not be construed so as to
constitute a partnership between the parties or any of them.
23.7 CHANGE OF REFERENCE BANKS
If:
(a) the whole of the Contributions (if any) of any Reference Bank
are prepaid;
(b) the Commitments (if any) of any Reference Bank are reduced to
zero prior to the end of the Finance Period;
(c) a Reference Bank novates the whole of its rights and
obligations (if any) as a Bank under this Agreement; or
(d) a Reference Bank ceases to provide quotations to the Facility
Agent upon request for the purposes of determining LIBOR
(where such quotations are required having regard to the
definition of "LIBOR" in clause 1.2)
the Facility Agent may, acting on the instructions of the Majority
Banks, terminate the appointment of such Reference Bank and after
consultation with the Primary Borrower appoint another Bank to
replace such Reference Bank.
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24. MATTERS CONCERNING THE BORROWERS
24.1 ADDITIONAL BORROWER
The Primary Borrower may, at any time during the term of this
Agreement (unless a Default shall have occurred and be continuing),
notify the Facility Agent that a Permitted Borrower is to be
designated as an additional Borrower under the Revolving Credit
Facility. Such notice shall be in writing and signed by the Primary
Borrower and the relevant Permitted Borrower and shall take effect in
accordance with its terms on the condition that:
(a) such Permitted Borrower shall have entered into an Accession
Certificate with the Facility Agent which, subject to (b)
below, the Facility Agent shall execute on behalf of all the
parties to this Agreement (and all such parties so authorise
the Facility Agent without any further consent of, or
consultation with, such party); and
(b) such Permitted Borrower, before entering into such an
Accession Certificate, shall have fulfilled all appropriate
conditions precedent, as notified to the Primary Borrower by
the Facility Agent, to the satisfaction of the Facility Agent
including the delivery to the Facility Agent of the documents
and evidence referred to in Part C of Schedule 3 in form and
substance satisfactory to the Facility Agent.
Upon satisfaction of such conditions such Permitted Borrower shall
become a party to this Agreement in the capacity of a Borrower in
respect of the Revolving Credit Facility and shall assume all the
obligations and rights of such a Borrower under this Agreement.
24.2 PRIMARY BORROWER AS OBLIGORS' AGENT
Each Obligor by its execution of this Agreement or an Accession
Certificate, as the case may be, irrevocably appoints and authorises
the Primary Borrower:
(a) as agent for each Borrower and Bidco to receive all notices,
requests, demands or other communications under this Agreement
which shall, without prejudice to any other effective mode of
serving the same, be properly served on the Obligor concerned
if served on the Primary Borrower in accordance with clause
25.1; and
(b) to give all notices (including any Drawdown Notices) and
instructions and make such agreements expressed to be capable
of being given or made by such Obligor or Obligors in this
Agreement (including an agreement for the continuance of any
guarantee or security) notwithstanding that they may affect
such Obligor without further reference to, or the consent of,
such Obligor and such Obligor shall, as regards the Finance
Parties, be bound thereby as though such Obligor itself had
given such notice or instructions or made such agreement.
24.3 OBLIGATIONS UNCONDITIONAL
The obligations of each Obligor under this Agreement and the Security
Documents are unconditional and irrevocable (subject to the express
provisions of this Agreement or any Security Document) and shall not
be in any way affected or discharged by reason of any matter affecting
the Offer or the Acquisition (or the Offer Documents). Each Obligor
acknowledges that any approval or authorisation given under this
Agreement or a Security Document by a Finance Party in relation to the
Offer or the Acquisition (or the Offer Documents) shall not constitute
any representation or warranty by such (or any) Finance Party as to
the adequacy or effectiveness of such Offer or the Acquisition (or the
Offer Documents), the purchase consideration payable by Bidco, the
commercial advisability of any Obligor or Bidco entering into the
arrangements contemplated thereby or otherwise.
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24.4 OBLIGATIONS SEVERAL
The obligations of each Obligor under this Agreement and the Security
Documents are several and the failure of any Obligor to perform such
obligations shall not release any other Obligor of its obligations
under this Agreement.
24.5 STAND-ALONE REVOLVING CREDIT FACILITY TO REC
The Finance Parties and the Obligors agree that they shall as soon as
reasonably practicable after the date of the Press Release agree the
form of an agreement for a stand-alone revolving credit facility to be
made available by the Banks to REC (the "REC Facility Agreement").
The REC Facility Agreement shall be entered into between the Finance
Parties and REC upon the Unconditional Date and, upon such date, the
Commitment of each Bank in respect of the Revolving Credit Facility
shall reduce by an amount equal to the commitment assumed by such Bank
under the REC Facility Agreement. The REC Facility Agreement shall be
on terms and subject to conditions identical, mutatis mutandis, to the
terms and conditions of the Revolving Credit Facility as set out
herein save that it shall:
(a) create a commitment on the part of each of the Banks (pro rata
to their respective Proportions) of an aggregate amount of
L.250,000,000;
(b) be available for the general corporate purposes of REC;
(c) have an Applicable Fees Rate of 0.25% and an Applicable Margin
of 0.50%;
(d) contain no covenants, representations and warranties or events
of default referencing any person other than REC and that all
such covenants, representations and warranties and events of
default shall be confined to, and to events occurring in
respect of, the REC (but otherwise corresponding where
applicable, to the covenants, representations and warranties
and events of default in this Agreement which by their terms
herein operate to include the REC Group) and without
limitation to the above the following clauses shall not appear
in the REC Facility Agreement: 9.2, 10.2(e), (f), (g), 10.4,
10.5, 10.6, 11.1(f), 12.1(o)(i), (ii) or (iii), 12.1(w), and
any covenant contained in clause 10.3 shall be replaced by the
covenant in clause 20.14(b) of the agreement between the
Target, Citibank International plc (as agent), Barclays Bank
PLC and Midland Bank plc dated 5 August 1996.
Following such stand-alone REC facility being executed:
(i) the Revolving Credit Facility shall reduce by the
principal amount of the commitment created under such
stand-alone REC facility; and
(ii) amounts committed or outstanding thereunder shall not
be deemed to be committed or outstanding under this
Agreement.
25. NOTICES AND OTHER MATTERS
25.1 ADDRESS FOR NOTICE
Every notice, request, demand or other communication under this
Agreement shall:
(a) be in writing delivered personally or by first-class prepaid
letter (airmail if available) or telefax;
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(b) be deemed to have been received, subject as otherwise provided
in this Agreement, in the case of a letter, when delivered
personally or 2 days after it has been put into the post and,
in the case of a telefax, when a complete and legible copy is
received by the addressee (unless the time of despatch of any
telefax is after close of business in which case it shall be
deemed to have been received at the opening of business on the
next business day); and
(c) be sent:
(i) to the Primary Borrower (for itself, Bidco, Xxxxx 2
and the other Borrowers) at:
Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telefax: x00 000 000 0000
Attention: Xxxxxx Xxxxxx/Xxxxxx Xxxxxxxxx
(ii) to the Facility Agent at:
Chase Manhattan International Ltd
Xxxxxxx Xxxxx
0 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0 0XX
Telefax: x00 000 000 0000
Attention: Xxxxxxx Xxxxxx
(iii) to the Security Agent at:
Chase Manhattan International Ltd
Xxxxxxx Xxxxx
0 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0 0XX
Telefax: x00 000 000 0000
Attention: Xxxxxxx Xxxxxx
(iv) to the Issuing Bank at:
The Chase Manhattan Bank
Trinity Tower
9 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0 0XX
Telefax: x00 000 000 0000
Attention: Xxxxxxx Xxxxxx
(v) to each Bank at its address or telefax number
specified in schedule 1 or in, or pursuant to, any
relevant Substitution Certificate
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(vi) to the Arrangers:
Chase Manhattan plc
000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Telefax: x00 000 000 0000
Attention: Xxxxxx Xxxxxxx/Xxxxxxxx Xxxxxxx
Xxxxxx Brothers International
3 World Financial Center
10th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx
XX 00000
Telefax: 001 212 528 0819
Attention: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxx Capital Corporation
C/o Merrill Xxxxx & Co
World Financial Center
North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx
XX 00000
Telefax: 001 212 447 8405
Attention: Xxxxx Xxxxxx
or to such other address or telefax number as is notified by
the Primary Borrower, or a Finance Party, as the case may be,
to the other parties to this Agreement.
25.2 NOTICE TO FACILITY AGENT
Every notice, request, demand or other communication under this
Agreement to be given by a Borrower shall be given by the Primary
Borrower and by the Primary Borrower to any other party shall be given
to the Facility Agent for onward transmission as appropriate and to be
given to a Borrower shall (except as otherwise provided in this
Agreement) be given by the Facility Agent to the Primary 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 this Agreement or any
Security Document shall operate as a waiver thereof, nor shall any
single or partial exercise by the Finance Parties or any of them of
any power, right or remedy preclude any other or further exercise
thereof or the exercise of any other power, right or remedy. The
remedies provided in this Agreement and each of the Security Documents
are cumulative and are not exclusive of any remedies provided by law.
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25.4 ENGLISH TRANSLATIONS
All certificates, instruments and other documents to be delivered
under or supplied in connection with this Agreement shall be in the
English language or shall be accompanied by a certified English
translation upon which the Finance Parties shall be entitled to rely.
25.5 COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
the different parties on separate counterparts, each of which when so
executed and delivered shall be an original, but all counterparts
shall together constitute one and the same instrument.
25.6 SEVERANCE
If any provision of this Agreement is held to be illegal, invalid or
unforceable in whole or in part this Agreement shall continue to be
valid as to its other provisions and the remainder of the affected
provision.
26. GOVERNING LAW AND JURISDICTION
26.1 LAW
This Agreement shall be governed by English law.
26.2 SUBMISSION TO JURISDICTION
The parties to this Agreement agree for the benefit of the Finance
Parties that:
(a) if any party has any claim against any other arising out of or
in connection with this Agreement, such claim shall (subject
to clause 26.2(c)) be referred to the High Court of Justice in
England, to the jurisdiction of which each of the parties
irrevocably submits;
(b) the jurisdiction of the High Court of Justice in England over
any such claim against any Finance Party shall be a
non-exclusive jurisdiction and no courts outside England shall
have jurisdiction to hear or determine any such claim; and
(c) nothing in this clause 26.2 shall limit the right of any
Finance Party to refer any such claim against any Borrower to
any other court of competent jurisdiction outside England, to
the jurisdiction of which any Borrower hereby irrevocably
agrees to submit, nor shall the taking of proceedings by any
Finance Party before the courts in one or more jurisdictions
preclude the taking of proceedings in any other jurisdiction
whether concurrently or not.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to
be duly executed on the date first above written.
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SCHEDULE 1
THE BANKS AND THEIR COMMITMENTS
===========================================================================================================
COMMITMENTS
-----------------------------------------------------------------------------------------------------------
BANK ACQUISITION FACILITY INTERIM FACILITY REVOLVING CREDIT
L. L. FACILITY
ADDRESS AND TELEFAX NUMBER L.
-----------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank 591,666,667 383,333,334 233,333,334
000 Xxxxxx Xxxx
Xxxxxx
XX0X 0XX
Fax: x00 000 000 0000
Attn: Xxxx Xxxxxxx
-----------------------------------------------------------------------------------------------------------
Xxxxxx Commercial Paper Inc. 591,666,666 383,333,333 233,333,333
3 World Financial Center
10th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx
XX 00000
Fax: x000 000 0000
Tel: x000 000 0000
Attn: Xxxxxxx Xxxxxxx
-----------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx Capital 591,666,667 383,333,333 233,333,333
Corporation
4 World Financial Center
X/x Xxxxxxx Xxxxx & Xx
Xxxxx Xxxxx
0xx Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx
XX 00000 0000
Tel: x000 000 0000
Attn: Xxxxx Xxxxxx
===========================================================================================================
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SCHEDULE 2
FORMS OF DRAWDOWN NOTICE
PART A
THE ACQUISITION AND INTERIM FACILITY
To: [NAME AND ADDRESS OF FACILITY AGENT]
[DATE]
Attention:
L. CREDIT FACILITIES AGREEMENT DATED 1998
1. We refer to the above Agreement and hereby give you notice that we
wish to draw down an [Acquisition/Interim] Advance [under the Loan
Note Facility]:
(a) on 19 ;
(b) in the sum of L. ;
(c) [with a first Interest Period in respect thereof of
.............. months.] [with the first Interest
Period in respect thereof to expire on
............................. 19 ] ; and
(d) [the proceeds of such Advance to be credited to [NAME
AND NUMBER OF ACCOUNT] at [NAME OF BANK IN LONDON]
[Loan Note Collateral Account].
2. We confirm that each condition specified in clause 3 is satisfied on
the date of this Drawdown Notice.] OR
3. We confirm that:
(a) the Advance is an Offer Advance;
(b) [the date of this Drawdown Notice is within the Certain
Funds Period; and]
(c) each condition in clause 3.3 is satisfied on the date of
this Drawdown Notice.]
3. Words and expressions defined in the Agreement shall have the same
meanings where used herein.
For and on behalf of
TU FINANCE (NO. 1) LTD
------------------------------
Director
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PART B
THE REVOLVING CREDIT FACILITY
To: [NAME AND ADDRESS OF FACILITY AGENT]
[DATE]
Attention:
L. CREDIT FACILITIES AGREEMENT DATED 1998
1. We refer to the above Agreement and hereby give you notice that [NAME
OF BORROWER] wishes to draw a Revolving Credit Advance:
(a) on o 19 ;
(b) in the sum of L. ;
(c) with a Maturity Period in respect thereof of months; and
(d) the proceeds of such fund to be credited to [NAME AND NUMBER
OF ACCOUNT] with [DETAILS OF BANK IN LONDON].
2. We confirm that:
(a) no event or circumstance has occurred and is continuing which
constitutes a Default; and
(b) the applicable representations and warranties contained in
clause 9 of the Agreement are true and correct at the date
hereof as if made with respect to the facts and circumstances
existing at such date.
3. Words and expressions defined in the Agreement shall have the same
meanings where used herein.
For and on behalf of
[NAME OF BORROWER]
------------------------------
Director
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PART C
LETTERS OF CREDIT
To: [NAME AND ADDRESS OF FACILITY AGENT]
Attention:
[DATE]
L. CREDIT FACILITIES AGREEMENT DATED 1998
1. We refer to the above Agreement and hereby give you notice that [NAME
OF BORROWER] requests the Issue of a Letter of Credit as follows:
(a) Drawdown Date: [ ]
(b) Expiry Date: [ ]
(c) Currency: [ ]
(d) Beneficiary: [ ]
(e) Amount: [ ]
(f) Purpose: [ ]
(g) Issue instructions: [ ]
(f) Documents required to be presented: [ ].
2. We confirm that:
(a) no event or circumstance has occurred and is
continuing which constitutes a Default; and
(b) the applicable representations and warranties
contained in clause 9 of the Agreement are true and
correct at the date hereof as if made with respect to
the facts and circumstances existing at such date.
3. Words and expressions defined in the Agreement shall have the same
meanings where used herein.
For and on behalf of
[NAME OF BORROWER]
----------------------
Director
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SCHEDULE 3
CONDITIONS PRECEDENT
PART A DOCUMENTS AND EVIDENCE REQUIRED AS CONDITIONS PRECEDENT
PRIOR TO THE ISSUE OF THE PRESS RELEASE
(a) Certified copies of the memorandum and articles of association and the
certificate of incorporation and any change of name certificates of
the Primary Borrower, Xxxxx 2 and Bidco, in the agreed form.
(b) Certified copies of resolutions of the shareholders and the board of
directors of each of the Primary Borrower, Xxxxx 2 and Bidco in the
agreed form approving:
(i) the execution and delivery of and the performance of their
respective obligations under the Finance Documents to which
they are a party;
(ii) the acquisition of the Target on the terms and subject to the
conditions set out in the Offer Documents and the issuing of
the Offer Documents;
(iii) the execution and completion of the Investment Agreement; and
(iv) (in the case of the shareholders' resolutions) the adoption of
their respective articles of association,
and authorising a person or persons (specified by name or office) on
behalf of each of them to sign such documents and any other documents
to be delivered by them under such documents.
(c) A certificate of a duly authorised signatory of each of the Primary
Borrower, Xxxxx 2 and Bidco setting out the names and specimen
signatures of the persons authorised to sign on behalf of such
companies the documents referred to in clause (b) above and any other
documents to be delivered by such companies pursuant to them, and
confirming that the resolutions referred to in (b) above are still in
effect and have not been varied or rescinded.
(d) The opinions of Xxxxxx Xxxxx Xxxxxxx, English solicitors for the
Facility Agent and (in the agreed form) of the Parent's US counsel.
(e) Certified copies of the Press Release and the Offer Documents, each as
despatched by Bidco, and of the Loan Note Instrument (in the agreed
form) and the Investment Agreement (duly executed).
(f) The Agreed Projections.
(g) Certified copies of the Coalco Disposal Agreement and the Escrow
Agreement.
(h) A side letter from the Parent to the Facility Agent in the agreed form
confirming that it is aware of the terms of this Agreement, that it
and its Subsidiaries will comply with clear market and syndication
obligations in the same terms as are in clause 10.2(e) and clause
16.16, and that it will:
(i) not permit the memorandum and articles of association of the
Primary Borrower to be amended without the prior written
consent of the Facility Agent;
000
- 000 -
(xx) not receive any dividends, distributions or other payments
from the Primary Borrower or any other member of the Group
save as permitted by clause 11.1(f), and in the event that it
does receive any such payments in breach of clause 11.1(f), it
will hold them on trust for the payer and forthwith return
them to the payer; and
(iii) provide and maintain appropriate senior management for the
Group during the continuance of the Facilities.
(i) A report from Coopers & Xxxxxxx in the agreed form.
(j) The Fee Letters, duly executed and countersigned, and the fees and
expenses payable under the Fee Letters and under clause 7 on or before
the date of issue of the Press Release.
(k) The Syndication Letter, duly countersigned.
(l) Written confirmation that an option has been purchased to buy a fixed
sum of X. Xxxxxxxx with the amount of the Coal Proceeds.
PART B DOCUMENTS AND EVIDENCE REQUIRED AS CONDITIONS PRECEDENT
TO THE FIRST DRAWDOWN
(a) Written confirmation from a duly authorised officer of the Primary
Borrower that the Office of Fair Trading has announced that it is not
the intention of the Secretary of State for Trade and Industry to
refer the Acquisition, or any matters arising from it, to the
Monopolies and Mergers Commission.
(b) Evidence satisfactory to the Facility Agent, to the Arrangers and the
Banks dated as at the date of the first Drawdown Notice that
completion of the Coalco Disposal Agreement is unconditional in all
respects save for any condition or conditions relating to the Offer
becoming unconditional in all respects, and that the consideration
required for the purchaser to complete the Coalco Disposal Agreement
has been received in full by the Escrow Agent (as defined in the
Escrow Agreement), subject to the Escrow Agreement, and that such
amount will be released unconditionally to the Target without the need
for any further confirmations, consents, permissions or actions from
or on the part of any person, save only for the confirmation (referred
to in (d) below) from the financial advisers to the Offer that the
Offer has become unconditional in all respects.
(c) Evidence satisfactory to the Facility Agent that
(i) the Parent (in respect of 90% of the required amount) and
Texas Utilities Services Inc. (in respect of 10%) have
invested an amount of L.1,678,082,000 in cash in subscription
for equity share capital in the Primary Borrower and Xxxxx 2
respectively; and
(ii) the Primary Borrower has in turn invested the entire sum
subscribed under paragraph (i) above by way of equity share
capital into Xxxxx 2, and Xxxxx 2 shall have invested the
entire sum (including the subscription monies provided by TU
Services Inc.) by way of equity share capital into Bidco; and
(iii) the cash proceeds of such investments referred to in (ii)
above have been paid in full by Bidco to the receiving bankers
for the financing of the Acquisition; and
(iv) all shares acquired at such time pursuant to the Loan Note
Alternative and the Share Alternative have been transferred to
and are beneficially owned by Bidco.
000
- 000 -
(x) A certified copy of the announcement by the financial advisers to the
Offer that the Offer has become or has been declared unconditional in
all respects.
(e) All share certificates representing Target Shares which Bidco owns as
at the first Drawdown Date, together with stock transfer forms
executed in blank to enable the Security Agent or its nominee to
become registered as the owner of such shares, except to the extent
that such share certificates are lodged with the receiving bankers to
the Offer or any brokers executing market purchases on the Parent or
Bidco's behalf and are covered by the acknowledgement issued by such
persons to the Security Agent referred to in sub-clause (k) of Part A
of this Schedule.
(f) Written confirmation from a duly authorised officer of the Primary
Borrower that the terms and conditions of the Offer have not been
waived, amended, varied or declared to be satisfied other than in
compliance with the terms of this Agreement.
(g) The fees and expenses payable under the Fees Letters and under clause
7 on or before the Unconditional Date.
(h) The Loan Note Instrument, duly executed by the parties thereto; the
Debenture, duly executed by the Primary Borrower, Xxxxx 2 and Bidco;
and the Share Charge duly executed by Texas Utilities Services Inc.,
together with:
(i) such directions by Bidco to, and/or undertakings from, the
trustees of the American Depositary Receipts and American
Depositary Shares and/or the person performing similar
functions to the Receiving Bankers to the offer in the United
States as the Agent, acting reasonably and on counsel's
advice, considers to be normal and appropriate for perfecting
a valid security interest in the United States over such
depositary receipts and depositary shares; and
(ii) share certificates and stock transfer forms executed in blank
in respect of the whole of the issued share capital of Xxxxx 2
and Bidco;
(i) Certified copies of:
(i) the agreement appointing Royal Bank of Scotland plc as
receiving bankers to the Offer, in the agreed form; and
(ii) the notice to the receiving bankers and any brokers engaged to
purchase Target Shares in the market and their
acknowledgement, each in the form set out in the Third
Schedule to the Debenture.
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PART C TO BE DELIVERED BY EACH PERMITTED BORROWER
(a) A certified copy of the certificate of incorporation and the
memorandum and articles of association of the Permitted Borrower.
(b) A certified copy of the resolutions of the board of directors of the
Permitted Borrower evidencing approval of this Agreement and the
Security Documents (to which that company is a party) and authorising
its appropriate duly authorised officers to execute and deliver this
Agreement and those Security Documents and to give all notices and
take all other action required by the relevant company under this
Agreement and those Security Documents.
(c) Specimen signatures, authenticated by the company secretary or a
director of the Permitted Borrower, of the persons authorised in the
resolutions of the board of directors referred to in paragraph (b)
above.
(d) The Accession Certificate duly executed by the Permitted Borrower.
(e) A certificate of a director of the Permitted Borrower certifying that
the borrowing and/or guaranteeing of the Total Commitments in respect
of the Revolving Credit Facility would not cause any borrowing limit
binding on the Permitted Borrower to be exceeded.
(f) A cross-guarantee executed by the Permitted Borrower and the other
Revolving Credit Facility Borrowers in favour of the Security Agent of
each other's liabilities under the Revolving Credit Facility
(excluding any such liabilities which the relevant Borrower is not
permitted by law to guarantee), in the form required by the Facility
Agent.
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SCHEDULE 4
CALCULATION OF ADDITIONAL COST
1. The Additional Cost for any period shall (subject to paragraph 5
below) be calculated in accordance with the following formula:
BY + L(Y X) + S(Y Z) per cent per annum
--------------------
100 (B + S)
where on the day of application of the formula:
B is the percentage of the Facility Agent's eligible liabilities
which the Bank of England then requires the Facility Agent to
hold on a non-interest-bearing deposit account in accordance
with its cash ratio requirements;
Y is the rate at which Sterling deposits are offered by the
Facility Agent to leading banks in the London Interbank Market
at or about 11 a.m. on that day for the relevant period;
L is the percentage of eligible liabilities which (as a result
of the requirements of the Bank of England) the Facility Agent
maintains as secured money with members of the London Discount
Market Association or in certain marketable or callable
securities approved by the Bank of England;
X is the rate at which secured Sterling investments may be
placed by the Facility Agent with members of the London
Discount Market Association at or about 11 a.m. on that day
for the relevant period or, if greater, the rate at which
Sterling bills of exchange (of a tenor equal to the duration
of the relevant period) eligible for rediscounting at the Bank
of England can be discounted in the London Discount Market at
or about 11 a.m. on that day;
S is the percentage of the Facility Agent's eligible liabilities
which the Bank of England requires the Facility Agent to place
as a special deposit; and
Z is the interest rate expressed as a percentage per annum
allowed by the Bank of England on special deposits.
2. For the purpose of this schedule 4:
2.1 "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings given
to them at the time of application of the formula by the Bank of
England; and
2.2 "RELEVANT PERIOD" in relation to each period for which Additional Cost
falls to be calculated means:
(a) if it is 3 months or less, that period; or
(b) if it is more than 3 months, 3 months.
2.3 In the application of the formula, B, Y, L, X, S and Z are included
in the formula as figures and not as percentages, e.g. if B = 0.5
per cent and Y = 15 per cent BY is calculated as 0.5 x 15.
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2.4 The formula shall be applied on the first day of each relevant
period. Each amount shall be rounded up to the nearest four decimal
places.
2.5 If the Facility Agent determines that a change in circumstances has
rendered, or will render, the formula inappropriate, the Facility Agent
(after consultation with the Banks) shall notify the Primary Borrower
of the manner in which the Additional Cost will subsequently be
calculated. The manner of calculation so notified by the Facility Agent
shall, in the absence of manifest error, be binding on all the parties.
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SCHEDULE 5
FORM OF SUBSTITUTION CERTIFICATE
(REFERRED TO IN CLAUSE 16.5)
NB 1. Banks are advised not to employ Substitution Certificates or
otherwise to assign, novate or transfer interests in the
Agreement without first ensuring that the transaction complies
with all applicable laws and regulations, including the
Financial Services Xxx 0000 and regulations made thereunder.
2. It is expected that Banks will enter into separate
arrangements dealing with the monies to be paid to the
Existing Bank by the Substitute in consideration of the
novation (e.g. principal, accrued interest, fees and any
mismatched funding adjustment). Unless the Effective Date is
a rollover date, mismatches of parties' funding may arise.
This Certificate does not deal with these issues, nor does it
deal with any interim risk participation the Existing Bank may
grant to the Substitute pending the Effective Date.
To: [NAME OF FACILITY AGENT] on its own behalf, as Facility Agent and on
behalf of each other party to the Agreement mentioned below.
Attention: [DATE]
SUBSTITUTION CERTIFICATE
This Substitution Certificate relates to a L.[ ] Facilities Agreement (the
"AGREEMENT") dated 2 March 1998 between TU Finance (No. 1) Ltd as the initial
Borrower (1) TU Finance Ltd and Bidco (2), Chase Manhattan plc, Xxxxxx Brothers
International, Xxxxxxx Xxxxx Capital Corporation as Arrangers (3), various
banks and financial institutions as Underwriters (4) The Chase Manhattan Bank
as Issuing Bank (5) Chase Manhattan International Limited as Facility Agent (6)
and Chase Manhattan International Limited as Security Agent (7). Terms defined
in the Agreement 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 Agreement set out in the schedule
below; and (b) requests [Substitute Bank] (the "SUBSTITUTE") to accept
by way of novation the portion of such participation specified in the
schedule to this Substitution Certificate by counter-signing and
delivering this Substitution Certificate to the Facility Agent at its
address for the service of notices specified in the Agreement.
2. The Substitute hereby requests the Facility Agent (on behalf of itself,
the other Finance Parties, the Borrowers and all other parties to the
Agreement) to accept this Substitution Certificate as being delivered
to the Facility Agent pursuant to and for the purposes of clause 16.5
of the Agreement so as to take effect in accordance with the terms of
such clause 16.5 on [date of transfer] (the "EFFECTIVE DATE") or on
such later date as may be determined in accordance with the terms of
the Agreement.
3. The Facility Agent (on behalf of itself, the other Finance Parties, the
Borrowers and all other parties to the Agreement) confirms the novation
effected by this Substitution Certificate pursuant to and for the
purposes of clause 16.5 of the Agreement so as to take effect in
accordance with the terms of such clause 16.5.
4. The Substitute confirms:
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(a) that it has received a copy of the Agreement and each of the
Security Documents and all other documentation and
information required by it in connection with the
transactions contemplated by this Substitution Certificate;
(b) that it has not relied upon any statement, opinion, forecast
or other representation or warranty made by the Existing Bank
or any other party to induce it to enter into this
Substitution Certificate;
(c) that it has made and will continue to make, without reliance
on the Existing Bank or any other Finance Party, and based on
such documents as it considers appropriate, its own appraisal
of the creditworthiness of any Borrower and the Group and its
own independent investigation of the financial condition,
prospects and affairs of any Borrower and the Group in
connection with the making and continuation of the Facilities
under the Agreement and the other Finance Documents;
(d) that neither the Existing Bank nor any other Finance Party
shall at any time be deemed to have had or have a duty or
responsibility, either historically, initially or on a
continuing basis, to provide the Substitute with any credit
or other information with respect to any Borrower or any
other member of the Group whether coming into its possession
before the making of any Advance or at any time or times
thereafter, other than (in the case of the Facility Agent) as
provided in clause 19.1 of the Agreement;
(e) that it has made and will continue to make its own assessment
of the legality, validity, enforceability and sufficiency of
the Agreement, the Security Documents, any other Finance
Document and this Substitution Certificate and has not relied
and will not rely on the Existing Bank or any other Finance
Party or any statements made by any of them in that respect;
(f) that, accordingly, none of the Existing Bank nor any other
Finance Party makes any representations or warranties in
respect of, or shall have any liability or responsibility to
the Substitute in respect of, any of the foregoing matters or
any other matter referred to in clause 20 of the Agreement;
(g) that it is a Qualifying Bank; and
(h) that it has signed an appropriate confidentiality undertaking
issued by the Existing Bank.
5. The Substitute hereby undertakes to the Existing Bank, the Finance
Parties, the Borrowers and each of the other parties to the Agreement
that it will perform in accordance with its terms all those obligations
which by the terms of the Agreement will be assumed by it after
counter-signature of this Substitution Certificate by the Facility
Agent.
6. The Substitute irrevocably and unconditionally guarantees to and
indemnifies the Issuing Bank as required under clause 4.7 (Banks'
Guarantee and Indemnity).
7. Without limiting the above paragraphs, nothing in this Substitution
Certificate obliges the Existing Bank to:
(a) accept any re-transfer from the Substitute of any of the
rights, benefits and/or obligations hereby transferred; or
(b) support any losses incurred by the Substitute by reason of
any non-performance by the Borrowers or any other party to
the Agreement or any of the Security Documents or any
document relating thereto of any of its obligations under the
same.
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8. This Substitution Certificate and the rights and obligations of the
parties hereunder shall be governed by and construed in accordance with
English law.
NOTE: This Substitution Certificate is not a security, bond, note,
debenture, investment or similar instrument.
AS WITNESS the hands of the authorised signatories of the parties to this
Substitution Certificate on the date appearing below.
THE SCHEDULE
THE ACQUISITION FACILITY
Commitment (L.) Portion Transferred (L.)
[ ] [ ]
Contribution (L.) Next Interest Payment Date Portion Transferred (L.)
[ ] [ ] [ ]
THE INTERIM FACILITY
Commitment (L.) Portion Transferred (L.)
[ ] [ ]
Contribution (L.) Next Interest Payment Date Portion Transferred (L.)
[ ] [ ] [ ]
THE REVOLVING CREDIT FACILITY
Commitment (L.) Portion Transferred (L.)
[ ] [ ]
Contribution (L.) Next Maturity Date(s) Portion Transferred (L.)
[ ] [ ] [ ]
Transferor's share of Portion of Letters of Credit
Outstanding Letters of Credit Transferred
[ ] [ ]
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ADMINISTRATIVE DETAILS OF SUBSTITUTE
Lending Office:
Account for payments:
Telephone:
Telefax:
Attention:
[EXISTING BANK] [SUBSTITUTE]
By: By:
---------------------------- ----------------------------
Date: Date:
THE FACILITY AGENT
By: By:
---------------------------- ----------------------------
Date: Date:
on its own behalf and on behalf of all other parties to the Agreement (other
than the Existing Bank)
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SCHEDULE 6
FORM OF ACCESSION CERTIFICATE
To: [NAME OF FACILITY AGENT] on its own behalf as Facility Agent and on
behalf of each other party to the Agreement.
Attention: [Date]
ACCESSION CERTIFICATE
This Accession Certificate relates to a L. Facilities Agreement (the
"AGREEMENT") dated 2 March 1998 between, among others, the Primary Borrower
(1), Xxxxx 2 and Bidco (2), Chase Manhattan plc, Xxxxxx Brothers International,
Xxxxxxx Xxxxx Capital Corporation as Arrangers (3), various banks and financial
institutions as Underwriters (4) The Chase Manhattan Bank as Issuing Bank (5)
Chase Manhattan International Limited as Facility Agent (6) and Chase Manhattan
International Limited as Security Agent (7). Terms defined in the Agreement
shall have the same meaning in this Accession Certificate.
1. [ ] (the "ACCEDING BORROWER") hereby requests the Facility Agent (on
behalf of itself and all other parties to the Agreement) to accept this
Accession Certificate as being delivered to the Facility Agent pursuant
to and for the purposes of clause 24.1 of the Agreement so as to take
effect in accordance with the respective terms thereof on the date
hereof.
2. The Acceding Borrower is, pursuant to this Accession Certificate,
acceding to the Agreement as a Borrower in respect of the Revolving
Credit Facility (only) and accordingly shall, subject to the terms of
this Accession Certificate and the Agreement, become a Revolving Credit
Facility Borrower under the Agreement.
3. The Facility Agent (on behalf of itself, and all other parties to the
Agreement) confirms the novation effected by this Accession Certificate
pursuant to and for the purposes of clause 24.1 of the Agreement so as
to take effect in accordance with the terms thereof.
4. The Acceding Borrower hereby undertakes to the Facility Agent (on
behalf of itself and the other Finance Parties) that it will perform in
accordance with their terms all those obligations which by the terms of
the Agreement will be assumed by it as a Borrower after acceptance of
this Accession Certificate by the Facility Agent.
5. [This Accession Certificate is intended to take effect as a Deed
notwithstanding that the Facility Agent may execute it under hand
only.]
6. This Accession Certificate and the rights and obligations of the
parties hereunder shall be governed by and construed in accordance with
English law.
IN WITNESS whereof this Accession Certificate has been entered into as a Deed
on the date above.
NOTICE DETAILS OF ACCEDING BORROWER
Address:
Telephone:
Telefax:
Attention:
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THE ACCEDING BORROWER
[Execution particulars Acceding Borrower to execute as a Deed]
THE FACILITY AGENT
By:
on its own behalf and on behalf of
all the other parties to the Facility Agreement.
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SCHEDULE 7
TERMS OF BORROWERS' INDEMNITY
1. Each Borrower unconditionally and irrevocably undertakes to the
Issuing Bank as follows:
(a) each Borrower will at all times on demand indemnify the
Issuing Bank against all actions, suits, proceedings, claims,
demands, liabilities, damages, costs, expenses, losses and
charges whatsoever (except those arising from the gross
negligence or wilful misconduct of the Issuing Bank) in
relation to or arising out of the Issue of any Letter of
Credit and each Borrower will pay to the Facility Agent for
the account of the Issuing Bank in immediately available funds
and in the currency in which the relevant Letter of Credit is
denominated the amount of all payments made (whether directly
or by way of set-off, counterclaim or otherwise howsoever) and
all losses, costs or expenses suffered or incurred from time
to time by the Issuing Bank, arising under any liability which
the Issuing Bank has incurred under the Issue of any Letter of
Credit and any of the indemnities relating thereto;
(a) the liability of each Borrower under this indemnity shall not
be affected by any time being given or by anything being done
by the Issuing Bank unless the same constitutes the gross
negligence or wilful misconduct of the Issuing Bank.
2. Each of the Borrowers specifically releases and indemnifies the
Issuing Bank against the consequences of:
(a) the failure of the Issuing Bank or any other person to receive
any telex or telephone message in a form in which it was
despatched; and
(b) any delay that may occur during the course of the transmission
of any such message
save in respect of any failure arising from the gross negligence or
wilful misconduct of the Issuing Bank.
3. (a) The obligations of any Borrower under this Agreement and any
L/C-Related Document to reimburse the Issuing Bank for a
drawing under a Letter of Credit and to repay any drawing
under a Letter of Credit which is converted into Advances,
shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement and
each such other L/C-Related Document under all circumstances,
including the following:
(i) any lack of validity or enforceability of this
Agreement or any L/C-Related Document;
(ii) any change in the time, manner or place of payment
of, or in any other term of, all or any of the
obligations of the relevant Borrower in respect of
any Letter of Credit or any other amendment or waiver
of or any consent to departure from all or any of the
L/C-Related Documents;
(iii) the existence of any claim, set-off, defence or other
right that the relevant Borrower may have at any time
against any beneficiary or any transferee of any
Letter of Credit (or any person for whom any such
beneficiary or any such transferee may be acting),
the Issuing Bank or any other person, whether in
connection with this Agreement, the transactions
contemplated hereby or by the L/C-Related Documents
or any unrelated transaction;
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(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be
forged, fraudulent, (save where the Issuing Bank
should decline to make payment under the terms of the
Uniform Customs and Practice for Documentary Credits
(1993) (ICC Publication No. 500 (the "UCPDC"))
invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any
respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a
drawing under any Letter of Credit;
(v) any payment by the Issuing Bank under any Letter of
Credit against presentation of a draft or certificate
that does not strictly comply with the terms of any
Letter of Credit; or any payment made by the Issuing
Bank under any Letter of Credit to any person
purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other
representative of or successor to any beneficiary or
transferee of any Letter of Credit, including any
arising in connection with any voluntary or
involuntary proceeding, process or arrangement under
any law, regulation or procedure relating to
insolvency in any jurisdiction including in relation
to winding up, bankruptcy, administration,
administrative receivership, receivership and
management, receivership, judicial custodianship,
judicial trusteeship or the appointment of a judicial
conservator or other official or the reconstruction,
rescheduling, readjustment, moratorium or suspension
of payments of any Indebtedness;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of
or consent to departure from any other guarantee, for
all or any of the obligations of the relevant
Borrower in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing,
including any other circumstance that might otherwise
constitute a defence available to, or a discharge of,
the relevant Borrower;
(b) The obligations of each of the Borrowers under the Senior
Finance Documents shall not be affected in any way by reason
of any time or other indulgence which may be granted:
(i) to the Issuing Bank by any beneficiary of any Letter
of Credit; or
(ii) by the Issuing Bank to any person from whom it may
seek reimbursement in respect of sums paid out by it
under any Letter of Credit or any other obligation
pursuant thereto or pursuant to this Agreement, as
the case may be.
4. The Issuing Bank may, at any time, without affecting any security
created by, pursuant to or in relation to this Agreement or the
rights, powers and remedies conferred upon it by this Agreement, any
such security or by law:
(a) offer or agree to or enter into agreement for the extension or
variation of the Issue of any Letter of Credit (provided it
does so in accordance with written instructions of the
Borrower); or
(b) offer or agree to give any time or other indulgence for any
sums paid out by it under any Letter of Credit or any
obligation pursuant to any Letter of Credit.
5. Any rights conferred on the Issuing Bank by this Agreement and by each
document executed in relation to this Agreement shall be in addition
to and not in substitution for or derogation of any other rights which
the Issuing Bank may at any time have to seek from any person
reimbursement of or indemnification against payments made or
liabilities incurred under any Letter of Credit, any obligation
pursuant thereto or to this Agreement.
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6. Any satisfaction of obligations by any Borrower or any other person to
the Issuing Bank or any discharge given by the Issuing Bank to any
Borrower or any other person in respect of obligations under this
Agreement or any related agreement between the Issuing Bank and any
Borrower or any other person shall be, and be deemed always to have
been, void if any act satisfying any of such obligations or on the
faith of which any such discharge was given or any such agreement was
entered into is subsequently avoided by law (otherwise than as a
result of any act or default by the Issuing Bank).
7. Any Letter of Credit shall be considered to be outstanding until the
later of:
(a) its Expiry Date, or a reasonable time after its Expiry Date to
allow for the presentation of documents through an advising
bank; and
(b) if, in the opinion of the Issuing Bank, its liability under
the Letter of Credit does not expire on its stated Expiry Date
or there is any doubt as to its Expiry Date, the date of
return of the document evidencing the Issuing Bank's liability
to the relevant beneficiary under any Letter of Credit.
8. Each Borrower confirms and agrees that:
(a) the Issuing Bank shall make any payment that appears to be
duly requested or demanded in writing by any beneficiary under
any Letter of Credit subject to its compliance (where
applicable) with its obligations as Issuing Bank under the
UCPDC regardless of whether or not the relevant Borrower shall
be in any way in breach of any of its obligations under or by
virtue of the transaction in connection with which the Letter
of Credit was Issued and without making any further reference
to the relevant Borrower or any investigation as to the bona
fide nature, validity or genuineness of any such request or
demand (unless, under applicable law, the Issuing Bank is
under no obligation to make such payment), and
(b) the liability of such Borrower hereunder and the right and
obligation of the Issuing Bank to make such payment shall be
in no way diminished or prejudiced if it should appear that,
as between the relevant Borrower and that beneficiary, that
beneficiary was not entitled for whatever reason to demand
payment under the Letter of Credit or that such demand was not
valid or genuine (subject as mentioned in paragraph 8(a)
above).
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SCHEDULE 8
TERMS OF INTERBANK GUARANTEE AND INDEMNITY
1. Each Bank agrees to pay to the Facility Agent for the account of the
Issuing Bank on demand made through the Facility Agent under clause
4.7 (Banks' Guarantee and Indemnity) to such account as the Facility
Agent may have specified for the purpose in immediately available
funds and in the currency in which the relevant Letter of Credit is
denominated, its Proportion of:
(a) any and every sum of money which such Borrower shall from time
to time be liable to pay to the Issuing Bank in respect of
that Letter of Credit in full without set-off or counterclaim
on the later of the date that the Issuing Bank has itself to
make payment under the Letter of Credit (as notified by the
Facility Agent to such Bank in the demand) and two Banking
Days after receipt by such Bank of such demand; and
(b) full cash cover for the Outstanding Contingent Liabilities
under that Letter of Credit at any time after the Issuing Bank
has become entitled to demand an indemnity through the
Facility Agent in respect thereof from the relevant Borrower
and which shall not have been paid at the time such demand is
made.
2. Where a Bank makes a payment pursuant to paragraph 1 after the date on
which the Issuing Bank makes the relevant payment under the Letter of
Credit in question, such Bank shall pay on demand to the Issuing Bank
its Proportion (as calculated in clause 4.7) of such amount as the
Issuing Bank certifies as necessary to compensate it for funding the
amount demanded in the interim.
3. No assurance, security or payment avoided under any law relating to
bankruptcy, liquidation, insolvency, reconstruction or reorganisation
or any similar laws and no release, settlement, arrangement or
discharge which may have been given or made on the basis of any such
assurance, security or payment shall prejudice or affect the right of
the Issuing Bank to recover from each of the Banks to the full extent
of their obligations under clause 4.7.
4. The obligations of each Bank under clause 4.7 shall not be impaired,
affected or revoked by any act, omission, matter, thing or
circumstance whatsoever which but for this provision might operate to
release or exonerate such Bank from all or any part of its obligations
under clause 4.7 or reduce, impair or affect such obligations or cause
all or any part of such obligations to be irrecoverable from or
unenforceable against any Obligor or to discharge, reduce, affect or
impair any of such obligations, including without limitation:
(a) any time, waiver or indulgence granted to any person or the
forbearance of the Issuing Bank in enforcing the obligations
of any person under any Finance Document or in respect of any
other guarantee, security, obligation, right or remedy;
(b) the recovery of any judgment against any person or any action
to enforce the same;
(c) the taking of any other security from any person or the
failure, refusal, or neglect to take, perfect or enforce, any
rights, remedies or securities from or against any person or
all or any part of the security constituted by any of the
Finance Documents;
(d) any alteration in the constitution of any Obligor or any
defect in or irregular exercise of the borrowing or other
powers of any person or any legal limitation, disability,
incapacity or other
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circumstance relating to any person or any legal limitation,
disability, incapacity or other circumstance relating to any
person whether arising in relation to any Finance Document or
otherwise howsoever;
(e) subject to clause 22.4 and 22.5 (Unanimous consents), any
amendment or supplement to or variation of any L/C Related
Document or any other Finance Document;
(f) the insolvency, bankruptcy, liquidation, reconstruction or
reorganization of, or analogous proceedings relating to any
person or any composition or arrangement made by any of them
with the Issuing Bank, any Bank or any other person or any
transfer or extinction of any liabilities of any Obligor by
any law, order regulation, decree, court order or similar
instrument;
(g) any irregularity, unenforceability or invalidity of any
obligations of any person under any security or document (to
the intent that such Bank's obligations under clause 4.7 shall
remain in full force as if there were no such irregularity,
unenforceability or invalidity);
(h) the occurrence of an Event of Default;
(i) the existence of any claim, set-off defence or other right
which any Obligor may have against any beneficiary of any
Letter of Credit or any other person; or
(j) any draft, certificate or any other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect.
5. The Issuing Bank shall be entitled to enforce the obligations of each
Bank under clause 4.7 without making any demand on or taking any
proceedings against or filing any proof of claim in any insolvency,
winding up, dissolution or liquidation of any person or exhausting any
right or remedy against any person or taking any action to enforce any
part of the security constituted or evidenced by any of the Finance
Documents.
6. The obligations of each Bank under clause 4.7 shall be continuing
obligations and shall extend to the ultimate balance of the
obligations referred to therein. If, for any reason, such obligations
cease to be continuing obligations, the Issuing Bank may open a new
account with or continue any existing account with any person and the
liability of each Bank in respect of amounts guaranteed by it pursuant
to clause 4.7 at the date of such cessation shall remain regardless of
any payments in or out of any such account.
7. The Issuing Bank's rights under clause 4.7 shall be in addition to and
shall be in no way prejudiced by any other rights of or security held
by the Issuing Bank in relation to the obligations of any Obligor.
The Issuing Bank's rights under clause 4.7 are in addition to and are
not exclusive of those provided by law.
8. A certificate of the Issuing Bank as to any amount due to it from any
Bank pursuant to clause 4.7 shall be conclusive (in the absence of
manifest error).
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PRIMARY BORROWER, XXXXX 2 AND BIDCO
Signed for and on behalf of
TU FINANCE (NO. 1) LTD
(company number 3505836)
/s/ TU Finance (No. 1) Ltd
----------------------------
Signed for and on behalf of
TU FINANCE (NO. 2) LTD
(company number 3514100)
/s/ TU Finance (No. 2) Ltd
----------------------------
Signed for and on behalf of
TU ACQUISITIONS PLC
(company number 3455523)
/s/ TU Acquisitions PLC
-----------------------------------
JOINT LEAD ARRANGERS
Signed for and on behalf of
CHASE MANHATTAN PLC
as Arranger
/s/ Chase Manhattan plc
-----------------------------------
Signed for and on behalf of
XXXXXX BROTHERS INTERNATIONAL
as Arranger
/s/ Xxxxxx Brothers International
-----------------------------------
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Signed for and on behalf of
XXXXXXX XXXXX CAPITAL CORPORATION
as Arranger
/s/ Xxxxxxx Xxxxx Capital Corporation
-------------------------------------
ORIGINAL BANKS
Signed for and on behalf of
THE CHASE MANHATTAN BANK
as Underwriter
/s/ The Chase Manhattan Bank
------------------------------------
Signed for and on behalf of
XXXXXX COMMERCIAL PAPER INC
as Underwriter
/s/ Xxxxxx Commercial Paper Inc
------------------------------------
Signed for and on behalf of
XXXXXXX XXXXX CAPITAL CORPORATION
as Underwriter
/s/ Xxxxxxx Xxxxx Capital Corporation
------------------------------------
ISSUING BANK
Signed for and on behalf of
THE CHASE MANHATTAN BANK
as Issuing Bank
/s/ The Chase Manhattan Bank
------------------------------------
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FACILITY AGENT
Signed for and on behalf of
CHASE MANHATTAN INTERNATIONAL LIMITED
as Facility Agent
/s/ Chase Manhattan International Limited
------------------------------------------
SECURITY AGENT
Signed for and on behalf of
CHASE MANHATTAN INTERNATIONAL LIMITED
as Security Agent
/s/ Chase Manhattan International Limited
------------------------------------------
