EXHIBIT 10.64
CONFORMED COPY
Dated 16 July 1999
EME FINANCE UK LIMITED
as Borrower
BARCLAYS CAPITAL
and
CREDIT SUISSE FIRST BOSTON
as Arrangers
THE FINANCIAL INSTITUTIONS
named as Banks
and
BARCLAYS BANK PLC
as Facility Agent
____________________________________
COAL AND CAPEX
FACILITY
___________________________________
Shearman & Sterling
London
TABLE OF CONTENTS
1. INTERPRETATION........................................................ 1
2. THE FACILITIES........................................................ 14
3. PARTICIPATION OF BANKS................................................ 16
4. CONDITIONS PRECEDENT.................................................. 16
5. DRAWDOWN.............................................................. 17
6. INTEREST.............................................................. 20
7. REPAYMENT AND CASH COLLATERAL......................................... 22
8. PREPAYMENT............................................................ 22
9. CANCELLATION.......................................................... 23
10. FEES.................................................................. 23
11. TAXES AND OTHER DEDUCTIONS............................................ 24
12. CHANGE IN CIRCUMSTANCES............................................... 27
13. PAYMENTS.............................................................. 31
14. REPRESENTATIONS AND WARRANTIES........................................ 32
15. POSITIVE COVENANTS.................................................... 34
16. NEGATIVE COVENANTS.................................................... 36
17. EVENTS OF DEFAULT..................................................... 37
18. THE FACILITY AGENT.................................................... 40
19. ASSIGNMENTS AND TRANSFERS............................................. 45
20. PRO RATA PAYMENTS, RECEIPTS AND SET OFF............................... 48
21. NOTICES, CONFIDENTIALITY AND CERTIFICATES............................. 50
22. AMENDMENTS, WAIVERS AND CONSENTS...................................... 52
23. INDEMNITIES........................................................... 53
24. PARTIAL INVALIDITY.................................................... 56
25. GOVERNING LAW......................................................... 56
26. COUNTERPARTS.......................................................... 56
THIS FACILITY AGREEMENT is made on 16 July, 1999
BETWEEN:
(1) EME FINANCE UK LIMITED (the "Borrower");
(2) BARCLAYS CAPITAL and CREDIT SUISSE FIRST BOSTON as arrangers (the
"Arrangers");
(3) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as original banks (the
"Original Banks"); and
(4) BARCLAYS BANK PLC as Facility Agent.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement, unless the context otherwise requires the following
expressions shall have the following meanings:
"Additional Costs Rate"
means, in relation to an Advance or unpaid sum:
(a) the cash ratio and special deposit requirements of the Bank of England
and/or the banking supervision or other costs imposed by the Financial
Services Authority, as determined in accordance with Schedule 4
(Additional Costs Rate); and
(b) any reserve asset requirements of the European Central Bank.
"Advance"
means a Coal Advance or a Capex Advance.
"Affiliate"
of a person means any subsidiary or holding company of that person, or any
subsidiary of any such holding company.
1
"Applicable Margin"
means the rate calculated in accordance with Clause 6.6 (Margin).
"Arrangers' Fee Letter"
means the letter from the Arrangers to the Borrower dated on or about the
date of this Agreement setting out details of certain fees payable by the
Borrower to the Arrangers referred to in Clause 10.3 (Arrangement Fees).
"Authorisation"
includes an authorisation, consent, approval, resolution, licence,
exemption, filing, registration, notarisation or enrolment by or with any
Competent Authority or any other relevant person.
"Availability Period"
means the period commencing on the date of this Agreement and ending on the
Final Repayment Date for the Coal Facility or the Capex Facility, as the
case may be.
"Available Capex Amount"
means, as at any date:
(a) Capital Costs incurred up to that date; less
(b) Capex Drawings on that date.
"Available Coal Amount"
means, as at any date:
(a) the Stockpile Increase; less
(b) Coal Drawings,
on that date.
"Available Commitments"
2
means, at any time, the Total Commitments under the Coal Facility or the
Capex Facility less the aggregate principal amount of the outstanding
Advances (including Deemed Advances) under the relevant Facility, at that
time.
"Bank"
means the Original Banks and any Transferee to whom rights and/or
obligations are assigned or transferred in accordance with Clause 19
(Assignments and Transfers) (until, in each case, its entire participation
in the Facility has been assigned or transferred to a Transferee in
accordance with Clause 19 (Assignments and Transfers)) (collectively the
"Banks").
"Business Day"
means a day, excluding Saturdays and Sundays, on which commercial banks and
foreign exchange markets are generally open for business in London.
"Capex Advance"
means the principal amount of each advance made or to be made (including
each Deemed Advance) under the Capex Facility in each case as from time to
time reduced by repayment or prepayment or consolidated in accordance with
Clause 6.1(e) (Interest Periods).
"Capex Drawings"
means, as at any date, the aggregate principal amount of Capex Advances
made on or before that date (whether or not repaid or prepaid).
"Capex Facility"
means the (Pound Sterling)223,000,000 sterling letter of credit and loan
facility to be made available to the Borrower by the Banks pursuant to
Clause 2.2 (Capex Facility).
"Capex Letter of Credit"
means a letter of credit to be issued by the Banks to the Project Company
during the L/C Availability Period in the form, or substantially in the
form, of Schedule 6 (Letters of Credit).
"Capex Utilisation"
3
means a drawing under the Capex Letter of Credit.
"Capital Costs"
means the costs incurred by the Project Company after the date of the
Agreement:
(a) in developing and constructing the Capital Investments including:
(i) fees and costs of the Project Company's engineering, legal and
other advisers engaged in respect of the design, construction
and commissioning of, and contracts for, the Capital
Investments and application for relevant authorisations;
(ii) fees, costs and expenses payable in relation to any relevant
authorisations; and
(iii) fees, costs and expenses incurred in testing and commissioning
the Capital Investments;
(b) in paying legal, accounting, technical and other professional fees and
related disbursements incurred by the Project Company in connection
with the negotiation and entry into all of the documents and contracts
which relate to the Capital Investments,
but excluding any amounts payable to the Guarantor or any Affiliate of the
Guarantor or the Project Company.
"Capital Investments"
means the rebuilding of one of the stacks at the power station known as
Ferrybridge "C", Yorkshire and the fitting of appropriate emission
abatement equipment to the Power Stations as set out in the Project
Company's capital expenditure programme in the agreed form.
"Cash Collateral"
means, at any time, the amount (if any) provided to the Facility Agent by
the Borrower as cash collateral for contingent liabilities under either
Letter of Credit.
"Coal"
means coal purchased by the Project Company under the Coal Supply
Agreements.
4
"Coal Advance"
means the principal amount of each advance (including each Deemed Advance)
made or to be made under the Coal Facility in each case as from time to
time reduced by repayment or prepayment or consolidated in accordance with
Clause 6.1(e) (Interest Periods).
"Coal Drawings"
means, as at any date, the aggregate principal amount of Coal Advances made
on or before that date (whether or not repaid or prepaid).
"Coal Facility"
means the (Pound Sterling)136,200,000 sterling letter of credit and loan
facility to be made available to the Borrower by the Banks pursuant to
Clause 2.1 (Coal Facility).
"Coal Letter of Credit"
means a letter of credit to be issued by the Banks to the Project Company
during the L/C Availability Period in the form, or substantially in the
form, of Schedule 6 (Letters of Credit).
"Coal Supply Agreements"
means each of the coal supply agreements dated 30 April 1999 and made
between the Project Company and PowerGen UK plc as amended by a deed of
amendment dated on or about the date of this Agreement.
"Coal Utilisation"
means a drawing under the Coal Letter of Credit.
"Commitment"
means:
5
(a) in relation to an Original Bank, the amount in Sterling set opposite
its name in Schedule 1 under the heading "Coal Commitment", in the
case of the Coal Facility, or under the heading "Capex Commitment", in
the case of the Capex Facility and, in each case, the amount of any
other Bank's Commitment relating to the relevant Facility acquired by
it under Clause 19 (Assignments and Transfers); and
(b) in relation to a Bank which becomes a Bank after the date of this
Agreement, the amount of any other Bank's Commitment relating to the
relevant Facility acquired by it under Clause 19 (Assignments and
Transfers),
to the extent not cancelled, reduced or transferred under this Agreement.
"Competent Authority"
means any local, national or supranational agency, authority, department,
inspectorate, minister, official, court, tribunal or public or statutory
person (whether autonomous or not) of the United Kingdom or the European
Community.
"Deemed Advance"
means the Advance deemed to be made in the amount of, and on the date of,
any Utilisation.
"Drawdown Date"
means, in relation to an Advance, the date for the making of the Advance as
specified by the Borrower in the relevant Request or, in relation to a
Deemed Advance, the date of the corresponding Utilisation.
"Event of Default"
means any of the events specified in Clause 17.1 (Events of Default).
"Facilities"
means the Coal Facility and the Capex Facility.
"Facility Agent"
means Barclays Bank PLC acting in its capacity as facility agent for the
Banks or such other agent for the Banks as shall be appointed pursuant to
Clause 18.9 (Resignation of Facility Agent).
6
"Facility Agent's Fee Letter"
means the letter from the Facility Agent to the Borrower dated on or about
the date of this Agreement setting out details of certain fees payable by
the Borrower to the Facility Agent referred to in Clause 10.2 (Agency
Fees).
"Final Repayment Date"
means:
(a) in the case of the Coal Facility, the date falling 54 months after the
date of this Agreement; and
(b) in the case of the Capex Facility, the date falling 60 months after
the date of this Agreement.
"Finance Documents"
means:
(a) this Agreement;
(b) the Coal Letter of Credit;
(c) the Capex Letter of Credit;
(d) the Facility Agent's Fee Letter;
(e) the Arrangers' Fee Letter;
(f) the Guarantee;
(g) each Transfer Certificate; and
(h) any other document designated as such by the Facility Agent and the
Borrower.
"Finance Parties"
means the Arrangers, the Facility Agent and each Bank.
7
"Guarantee"
means a guarantee in the agreed form, given, or to be given, by the
Guarantor in favour of the Facility Agent.
"Guarantor"
means Edison Mission Energy, a company incorporated in the State of
California.
"Indebtedness"
has the meaning given to it in the Guarantee.
"Information Memorandum"
means the information memorandum relating to this Agreement to be
distributed by the Arrangers at the request of the Borrower.
"Interest Period"
means a period by reference to which interest is calculated and is payable
on an Advance or overdue sum.
"Issue Date"
means, in relation to a Letter of Credit the date of issue of that Letter
of Credit.
"L/C Availability Period"
means the period commencing on the date of this Agreement and ending 7 days
after the date of this Agreement.
"L/C Exposure"
means, at any time, the maximum amount of the Coal Letter of Credit or
Capex Letter of Credit at that time less the Coal Drawings or Capex
Drawings, as the case may be, at that time.
"L/C Proportion"
8
means, for any Bank, the proportion borne from time to time by the relevant
Available Commitment of such Bank to the total of the relevant Available
Commitments for all the Banks.
"L/C Request"
means a request for a drawing under the Coal Letter of Credit or the Capex
Letter of Credit.
"Lending Office"
means, in relation to a Bank, the office through which it is acting for the
purposes of this Agreement.
"Letters of Credit"
means the Coal Letter of Credit and the Capex Letter of Credit.
"LIBOR"
means, in relation to an Advance or unpaid sum, the rate per annum of the
offered quotation for deposits in sterling in an amount equal or comparable
to such Advance or unpaid sum for the duration of the relevant Interest
Period which appears on page 3750 of the Telerate Service at or about 11.00
a.m. on the applicable Rate Fixing Day or, if no such offered quotation
appears on that page, then:
(a) the arithmetic mean (rounded up, if necessary, to the nearest four
decimal places) of the respective rates (as quoted to the Facility
Agent at its request) offered by the Reference Banks to leading banks
in the London interbank market at or about 11.00 a.m. on the
applicable Rate Fixing Day for deposits in the relevant currency in an
amount equal or comparable to such Advance or unpaid sum for the
duration of the relevant Interest Period; or
(b) if any Reference Bank does not provide a quote as contemplated by
paragraph (a) above, the relevant arithmetic mean determined on the
basis of the quotations supplied by the remaining Reference Banks; or
(c) if no (or only one) Reference Bank supplies a quote as contemplated by
paragraph (a), above the provisions of Clause 12.4 (Change in Market
Conditions) shall apply.
9
"Majority Banks"
means, at any time:
(a) Banks whose Commitments aggregate more than 66 2/3 per cent. of the
Total Commitments; or
(b) if the Total Commitments have been reduced to zero, Banks whose
Commitments aggregated more than 66 2/3 per cent. of the Total
Commitments immediately before the reduction.
"Obligors"
means the Borrower and the Guarantor.
"Party"
means a party to this Agreement.
"Potential Event of Default"
means any event which, with the giving of notice, passage of time or
satisfaction of any condition, in each case as specified in Clause 17
(Events of Default) would constitute an Event of Default.
"Power Stations"
means the power stations known as Xxxxxxxxxxx X, Xxxxxxxxx xxx Xxxxxxx'x
Xxxxx, Xxxxxxxx.
"Project Company"
means Edison First Power Limited.
"Qualifying Person"
has the meaning given to it in Clause 11.7 (Exceptions).
"Rate Fixing Day"
means, in relation to an Advance, the first day of an Interest Period
relating thereto.
"Reference Banks"
10
means the principal London offices of Barclays Bank PLC, The Royal Bank of
Scotland plc and Bayerische Hypo-und Vereinsbank AG or, if any such Bank
ceases to be a Reference Bank, such other Bank as the Facility Agent shall
select after consultation with the Borrower.
"Relevant Tax"
means any Tax imposed by any Competent Authority of a jurisdiction in which
the Borrower is incorporated, or resident, or from or through which it
makes any payments under the Finance Documents.
"Request"
means a notice requesting a Letter of Credit or an Advance in the form set
out in Schedule 3 (Form of Request).
"Senior Creditors' Security Trustee" means Barclays Bank PLC in its
capacity as such or any successor under an intercreditor agreement dated on
or about the date of this Agreement.
"Stockpile Increase"
means, as at any date:
(a) the total cost of Coal purchased by the Project Company; less
(b) the total cost of Coal consumed or sold, and paid for, by the Project
Company (on the assumption that Coal is consumed on a first in, first
out basis),
from the date of this Agreement to the date of calculation.
"Tax"
means any present or future tax, levy, impost, duty, charge, fee, deduction
or withholding in the nature of tax whatsoever called and whether imposed,
levied, collected, withheld or assessed (and any penalty or interest
payable in connection with any failure to pay or any delay in paying the
same).
"Taxes Act" means the Income and Corporation Taxes Xxx 0000.
11
"Total Commitments"
means the aggregate, from time to time, of the Commitments under the Coal
Facility or the Capex Facility, as the case may be.
"Transfer Certificate"
means a certificate substantially in the form set out in Schedule 5 (Form
of Transfer Certificate).
"Transfer Date"
means, in relation to any Transfer Certificate, the date for the making of
the transfer as specified in such Transfer Certificate.
"Transferee"
means a person to whom a Bank seeks to transfer all or part of its rights,
benefits and obligations hereunder.
"UK GAAP"
means generally accepted accounting principles and practices in the United
Kingdom.
"Utilisation"
means a Coal Utilisation or a Capex Utilisation.
1.2 Construction
Any reference in this Agreement to:
an "agency" of a state is a reference to any political sub-division
thereof, and any ministry, department or authority thereof and any company
or corporation which is controlled by one or more of such agencies;
an "asset" of any person means all or any part of its business,
undertaking, property, assets, revenues (including any right to receive
revenues) and uncalled capital, wherever situated;
a figure being "indexed" means adjusted to reflect the change in the Retail
Prices Index as published for the month in which the Capex Letter of Credit
and the Coal Letter of Credit are issued to the published Retail Prices
Index immediately prior to the relevant calculation hereunder;
12
a "holding company" of a company or corporation shall be construed as a
reference to any company or corporation of which the first mentioned
company or corporation is a subsidiary.
"includes" or "including" shall be construed without limitation;
"in the agreed form" means in the form agreed between the Facility Agent
and the Borrower and initialled by or on behalf of each of them for the
purposes of identification;
a "month" means a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next calendar month provided
that if:
(a) any such period would otherwise end on a day which is not a Business
Day, it shall end on the next Business Day in the same calendar month
or, if none, on the preceding Business Day; and
(b) a period starts on the last Business Day in a calendar month or if
there is no numerically corresponding day in the month in which that
period ends, that period shall end on the last Business Day in that
later month,
(and references to "months" shall be construed accordingly);
a "person" shall be construed as a reference to any person, firm, company,
corporation, government, state, agency of a state or any association or
partnership (whether or not having separate legal personality) of two or
more of the foregoing;
a "subsidiary" of a person shall be construed as a reference to any person
(a) which is controlled, directly or indirectly, by the first-mentioned
person, (b) more than half the issued share capital of which is
beneficially owned, directly or indirectly, by the first-mentioned person,
or (c) which is a subsidiary of another subsidiary of the first-mentioned
person;
"Tax on overall net income" of a person shall be construed as a reference
to Tax (other than Tax deducted or withheld from any payment) imposed on
that person by the jurisdiction in which its principal office (and/or, in
the case of a Bank, its Lending Office) is located by reference to (a) the
net income, profits or gains of that person worldwide or (b) such of its
net income, profits or gains as arise in or relate to that jurisdiction;
the "winding-up", "dissolution" or "administration" of a company shall be
construed so as to include any equivalent or analogous proceedings under
the laws of any relevant jurisdiction in which such company is incorporated
or any relevant jurisdiction in which such company carries on business.
1.3 References to documents and statutes
Save where the contrary is indicated, any reference in this Agreement to:
13
(a) any Finance Document or any other agreement or document shall be
construed as a reference to such Finance Document or other agreement
or document as the same may have been, or may from time to time be,
amended, varied, novated or supplemented; and
(b) a statute shall be construed as a reference to such statute as the
same may have been, or may from time to time be, amended or re-enacted
and all instruments, orders, regulations, by-laws, permissions and
directions at any time made thereunder.
(c) the Facility Agent or the Senior Creditors' Security Trustee is a
reference to the department, unit or persons within the Facility Agent
or Senior Creditors' Security Trustee who are carrying out the
functions of the Facility Agent or Senior Creditors' Security Trustee,
as the case may be, and have day to day responsibility for these
functions.
1.4 Time
Save where the contrary is indicated, any reference in this Agreement to a
time of day shall be construed as a reference to London time.
1.5 Change of Currency
Any references in this Agreement to a Business Day, the convention for the
calculation of the number of days in a year for interest calculation
purposes or other convention (whether for the calculation of interest,
determination of payment dates or otherwise) will, with effect from and
after the first day on which the UK becomes a participating member state in
the euro currency, to the extent that the Facility Agent specifies to be
necessary after consultation with the Borrower, be amended to comply with
any generally accepted conventions and market practice applicable to euro-
denominated obligations in the London interbank market.
1.6 Barclays Capital
Any reference in this Agreement to Barclays Capital shall be a reference to
the investment banking division of Barclays Bank PLC.
2. THE FACILITIES
2.1 Coal Facility
(a) The Banks agree, on the terms and subject to the conditions of this
Agreement, to issue the Coal Letter of Credit during the L/C
Availability Period and to make available Coal Advances to the
Borrower during the Availability Period.
14
(b) The aggregate amount of all outstanding Coal Advances shall not exceed
the Total Commitments under the Coal Facility.
(c) No Bank is obliged to lend if it would cause the aggregate amount of
its participations in the Coal Advances to exceed its Commitment under
the Coal Facility.
2.2 Capex Facility
(a) The Banks agree, on the terms and subject to the conditions of this
Agreement, to issue the Capex Letter of Credit during the L/C
Availability Period and to make available Capex Advances to the
Borrower during the Availability Period.
(b) The aggregate amount of all outstanding Capex Advances shall not
exceed the Total Commitments under the Capex Facility.
(c) No Bank is obliged to lend if it would cause the aggregate amount of
its participations in the Capex Advances to exceed its Commitment
under the Capex Facility.
2.3 Purpose
(a) Each Coal Advance or Coal Utilisation shall be paid by the Banks to
the Project Company or at the Project Company's direction either:
(i) to fund amounts payable under the Coal Supply Agreements which
have become due and payable from time to time;
(ii) to reimburse the Project Company from time to time for amounts
paid under the Coal Supply Agreement.
(b) Each Capex Advance or Capex Utilisation shall be paid by the Banks to
the Project Company or at the Project Company's direction either:
(i) to meet the obligations of the Project Company in relation to
Capital Costs where funds in the revenues account of the
Project Company are insufficient to pay such costs; or
(ii) to reimburse the Project Company from time to time for amounts
in relation to Capital Costs paid by it.
(c) No Finance Party shall be obliged to enquire as to the use or
application of amounts raised under the Finance Documents.
15
2.4 Direction to Facility Agent
The Borrower irrevocably authorises the Facility Agent to pay the proceeds
of each Advance to the Project Company.
3. PARTICIPATION OF BANKS
3.1 Basis of Participation
(a) Each Bank hereby authorises the Facility Agent to sign the Coal Letter
of Credit and the Capex Letter of Credit on its behalf.
(b) Subject to the other provisions of this Agreement, each Bank will
participate in each Advance and each Utilisation in the proportion
which its Commitment under the relevant Facility bears to the Total
Commitments under the relevant Facility as at the Drawdown Date for
that Advance or the date of that Utilisation.
3.2 Lending Office
Each Bank will participate in each Advance and each Utilisation through its
Lending Office. If any Bank changes its Lending Office for the purpose of
this Agreement, that Bank will notify the Facility Agent, the Borrower and
the Senior Creditors' Security Trustee promptly of such change.
3.3 Rights and Obligations of Finance Parties
The rights and obligations of each of the Finance Parties under the Finance
Documents are several and the total amounts outstanding at any time under
the Finance Documents constitute separate and independent debts. Failure of
a Finance Party to observe and perform its obligations under any Finance
Document shall neither:
(a) result in any other Finance Party incurring any liability whatsoever;
nor
(b) relieve the Borrower or any other Finance Party from their respective
obligations under the Finance Documents.
3.4 Banks' Acknowledgement
Each Bank acknowledges that no Non-Recourse Person (as defined in the
Guarantee) shall have any responsibility or liability for the Obligations
(as defined in the Guarantee).
4. CONDITIONS PRECEDENT
16
4.1 Initial conditions precedent
(a) The Banks shall not be under any obligation to issue either Letter of
Credit nor to make any Advance available to the Borrower under this
Agreement unless the Facility Agent has received each of the documents
specified in Schedule 2 (Conditions Precedent) in form and substance
satisfactory to the Facility Agent.
(b) When the Facility Agent is satisfied that the conditions specified in
this Clause 4.1 have been fulfilled, it will promptly notify the
Borrower, the Senior Creditors' Security Trustee and the Banks.
5. DRAWDOWN
5.1 Delivery of Requests
In order to request the issue of a Letter of Credit or to borrow an
Advance, the Borrower must deliver to the Facility Agent a duly completed
Request:
(a) in the case of the issue of the Letter of Credit, on the proposed
Issue Date; and
(b) in the case of an Advance, not later than l0.00 a.m. on the proposed
Drawdown Date.
5.2 Completion of Requests
A Request will not be regarded as being duly completed unless it specifies:
(a) in the case of each Letter of Credit:
(i) the proposed Issue Date (which must be a Business Day falling
within the L/C Availability Period);
(ii) the amount of the Letter of Credit (which must not exceed the
Available Commitments under the Coal Facility or the Capex
Facility, as the case may be); and
(iii) the termination date of the Letter of Credit (which must be a
Business Day and no later than the Final Repayment Date for
the Coal Facility or the Capex Facility, as the case may be);
and
(b) in the case of an Advance:
17
(i) the proposed Drawdown Date (which must be a Business Day
falling within the Availability Period for the Coal Facility
or the Capex Facility, as the case may be);
(ii) the amount of the Advance requested, which must be a minimum
of (Pound Sterling)5,000,000 in the case of a Coal Advance and
(Pound Sterling)10,000,000 in the case of a Capex Advance and
a multiple of (Pound Sterling)1,000,000 in the case of a Coal
Advance and (Pound Sterling)5,000,000 in the case of a Capex
Advance and must not exceed the lower of:
(A) the Available Commitments for the Coal Facility or the
Capex Facility, as the case may be); and
(B) the Available Capex Amount or the Available Coal Amount,
as the case may be; and
(iii) the first Interest Period for the Advance (which must comply
with Clause 6.1(b) (Interest Periods)).
5.3 Accompanying documents
(a) In the case of a Coal Advance (other than a Deemed Advance), the
Request must be accompanied by:
(i) a certificate signed by a Director of the Project Company
certifying the aggregate expenditure on Coal since the date of
this Agreement; and
(ii) a certificate signed by a Director of the Project Company
certifying the aggregate cost of Coal consumed or sold, and
paid for, by the Project Company (on the assumption that Coal
is consumed on a first in, first out basis) since the date of
this Agreement.
(b) In the case of a Capex Advance (other than a Deemed Advance), the
Request must be accompanied by a certificate signed by a Director of
the Project Company certifying the Capital Costs incurred since the
date of this Agreement.
5.4 Request Irrevocable
A Request once given may not be withdrawn or revoked.
5.5 Notice to the Banks of proposed Letter of Credit and Advances
The Facility Agent will promptly give each Bank details of each Request
received and of the amount of the Bank's participation in the relevant
Letter of Credit or Advance.
18
5.6 Making of Advances and Utilisations
(a) Subject to the provisions of this Agreement, each Bank will make
available to the Facility Agent its participation in any Advance
properly requested under this Agreement on the relevant Drawdown Date.
(b) Without prejudice to their obligations under (c) below, the Banks
shall be under no obligation to make any Advance available to the
Borrower unless, on both the date of the Request and the relevant
Drawdown Date:
(i) the representations set out in Clause 14 (Representations and
Warranties) stipulated as being repeated on that date are true
and accurate in each case by reference to the facts and
circumstances then subsisting, and will remain true and
accurate immediately after the Advance is made; and
(ii) no Event of Default or Potential Event of Default has occurred
and is continuing or will occur as a result of making the
Advance.
(c) Each of the Banks agrees that it will make each Utilisation available:
(i) in accordance with the terms of the Letter of Credit; and
(ii) regardless of whether the representations set out in Clause 14
(Representations and Warranties) are true and accurate as at
the date of the Request and of the relevant Utilisation or
whether an Event of Default or Potential Event of Default has
occurred and is continuing or will occur as a result of making
the Utilisation.
5.7 Number of Advances
No more than five Advances (excluding Deemed Advances) may be outstanding
under each Facility at any time.
5.8 Utilisations
On the date of each Utilisation, a Deemed Advance shall be deemed to have
been made to the Borrower under the Coal Facility or the Capex Facility, as
the case may be (with a first Interest Period ending on the next succeeding
date for the payment of interest in relation to a Coal Advance or a Capex
Advance, as the case may be) and the Available Commitments under the Coal
Facility or the Capex Facility, as the case may be, shall automatically be
reduced accordingly.
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6. INTEREST
6.1 Interest Periods
(a) Interest shall be calculated and payable on each Advance by reference
to Interest Periods.
(b) The period for which an Advance is outstanding shall be divided into
successive Interest Periods, each of which (other than the first,
which shall begin on the day such Advance is made) shall start on the
last day of the preceding such period.
(c) The duration of each Interest Period shall be one, three or six
months, or such other period as the Facility Agent may from time to
time agree (with the consent of all the Banks where the period is more
than six months), as specified in the relevant Request (for the first
Interest Period relating to an Advance) or as the Borrower may by
notice to the Facility Agent not later than 10.00 a.m. on the first
day of an Interest Period select (in the case of each other Interest
Period relating to an Advance). If the Borrower fails to give notice
of its selection, such Interest Period shall be three months or a
shorter period ending on the Final Repayment Date for the relevant
Facility.
(d) Each Interest Period must end on or before the Final Repayment Date
for the Coal Facility or the Capex Facility, as the case may be.
(e) If Interest Periods for more than one Advance end on the same day, all
such Advances will be consolidated and treated as one Advance at close
of business on that day.
6.2 Interest Rate
The rate of interest applicable to an Advance for an Interest Period shall
be the rate per annum determined by the Facility Agent to be the sum of:
(a) the Additional Costs Rate;
(b) the Applicable Margin; and
(c) the applicable LIBOR,
for that Advance for that Interest Period.
Interest will accrue daily and will be calculated on the basis of a 365 day
year.
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6.3 Notification of Terms and Rates
The Facility Agent shall promptly notify the Borrower and the Banks of the
duration of each Interest Period and the rate of interest applicable to
such Interest Period.
6.4 Payment of Interest
On the last day of an Interest Period (and, if such Interest Period is
longer than 6 months, on the last day of each 6 monthly interval during
that Interest Period), the Borrower shall pay the unpaid interest accrued
on the Advance to which such Interest Period relates.
6.5 Default Interest
If the Borrower fails to pay any sum (including any sum payable pursuant to
this Clause 6.5) under any Finance Document on its due date (an "unpaid
sum"), the Borrower will pay default interest on such unpaid sum from its
due date to the date of actual payment (as well after as before judgment)
at a rate determined by the Facility Agent to be 1 per cent. per annum
above:
(a) where the unpaid sum is principal which has fallen due prior to the
last day of the relevant Interest Period, the rate applicable to such
principal immediately prior to the date it so fell due (but only for
the period from such due date to the last day of the relevant Interest
Period); or
(b) in any other case (including principal falling within paragraph (a)
above after the relevant Interest Period), the rate which would be
payable if the unpaid sum was an Advance made for a period equal to
the period of non-payment divided into successive periods of such
duration of 3 months or less as shall be selected by the Facility
Agent (each a "Default Interest Period").
Default interest will be payable on demand by the Facility Agent and will
be compounded at the end of each Default Interest Period.
6.6 Margin
The Applicable Margin for any Advance and any Interest Period shall be the
rate set out in column 3 which corresponds to the lowest credit rating of
the Guarantor from either Standard & Poor's Rating Services (as set out in
column 1) or Xxxxx'x Investor Services, Inc. (as set out in column 2) for
each day of the Interest Period. Any change in the Applicable Margin shall
have immediate effect on the interest rate applicable to Advances and the
Facility Agent shall promptly notify the Borrower and the Banks thereof.
21
Column 1 Column 2 Column 3
-------- -------- --------
GuarantorAs credit rating from Standard GuarantorAs credit rating from Applicable Margin
& Poor's Rating Services Xxxxx'x Investor Services, Inc.
A- or above A3 or above 0.75 per cent. per annum
BBB+ Baa1 0.875 per cent. per annum
BBB Baa2 1.000 per cent. per annum
BBB- Baa3 1.250 per cent. per annum
Lower than BBB- Lower than Baa3 2.250 per cent. per annum
7. REPAYMENT AND CASH COLLATERAL
(a) Any Coal Advances remaining outstanding on the Final Repayment Date
for the Coal Facility or Capex Advances remaining outstanding on the
Final Repayment Date for the Capex Facility, as the case may be, shall
be repaid in full by the Borrower on that date.
(b) Cash Collateral required under Clause 12.1 (Illegality) or Clause 12.2
(Increased Costs) or Clause 17.12 (c) (Cancellation and repayment)
will be provided by the Borrower on such terms as the Majority Banks,
acting reasonably, may specify.
8. PREPAYMENT
8.1 Prepayment
(a) The Borrower may prepay an Advance or any part thereof at any time
provided that the Facility Agent has received not less than 5 Business
Days' notice from the Borrower of the proposed date and amount of the
prepayment.
(b) Any partial prepayment of an Advance will be in a minimum amount
of (Pound Sterling)5,000,000 and an integral multiple of
(Pound Sterling)1,000,000.
(c) The Borrower may prepay any Bank's participation in the Advance at any
time provided that the Facility Agent has received not less than 10
days notice from the Borrower of the proposed date of the prepayment
if:
(i) the Borrower is obliged or will become obliged to make any
additional payments under Clause 11.2 (Grossing-up of
Payments) in respect of payments to that Bank; or
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(ii) that Bank has notified the Borrower that Clause 12.2
(Increased Costs) applies or will apply to that Bank.
(d) Each prepayment will be made together with accrued interest on the
Advance to be prepaid and any amount payable under Clause 23.4
(General Indemnity).
(e) Any notice of prepayment under this Agreement is irrevocable. The
Facility Agent shall notify the Banks promptly of receipt of any such
notice.
9. CANCELLATION
(a) The Total Commitments for each Facility will be cancelled on the Final
Repayment Date for the Coal Facility or the Capex Facility, as the
case may be.
(b) Before the first Issue Date, the Borrower may cancel the Total
Commitments for each Facility in whole (but not in part) by giving a
notice in writing to the Facility Agent, not less than 2 Business
Days' prior to the proposed date of cancellation.
(c) The Total Commitments for a Facility will be cancelled in an amount
equal to the amount of, and at the same time as, any reduction in the
L/C Exposure of the Letter of Credit issued under that Facility, which
reduction is requested by the Project Company.
(d) No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
(e) Any notice of cancellation under this Agreement is irrevocable. The
Facility Agent shall notify the Banks promptly of receipt of any such
notice.
10. FEES
10.1 Letter of Credit Commission
(a) The Borrower shall pay to the Facility Agent for the account of each
Bank, Letter of Credit commission on the Coal Letter of Credit and on
the Capex Letter of Credit in sterling computed at the rate of the
Applicable Margin for each day during the calculation period on the
L/C Exposure for each Letter of Credit until the Final Repayment Date
for the Coal Facility or the Capex Facility, as the case may be.
23
(b) Accrued Letter of Credit commission is payable for each Letter of
Credit quarterly in arrear from its Issue Date to the Final Repayment
Date for the Coal Facility or the Capex Facility, as the case may be,
or on any earlier date on which the L/C Exposure under the relevant
Letter of Credit is reduced to zero.
10.2 Agency Fees
The Borrower will pay to the Facility Agent for its own account agency fees
at the times and otherwise as specified in the Facility Agent's Fee Letter.
10.3 Arrangement Fees
The Borrower will pay to the Arrangers on the date of signing of this
Agreement the fee specified in the Arrangers' Fee Letter.
10.4 VAT
All fees payable under the Finance Documents are exclusive of any value
added tax or other similar Tax chargeable upon or in connection with such
fees. If any value added tax or other similar Tax is or becomes properly
chargeable such Tax will be added to the fee concerned at the appropriate
rate and will be paid by the Borrower at the same time as the fee itself is
paid (subject to being provided with a valid Tax invoice for such Tax).
11. TAXES AND OTHER DEDUCTIONS
11.1 Payments to be free and clear
All sums payable by the Borrower under this Agreement shall be paid (a)
free of any restriction or condition (b) free and clear of and (except to
the extent required by law) without any deduction or withholding for or on
account of any Tax and (c) without deduction or withholding (except to the
extent required by law) on account of any other amount whether by way of
set-off, counter-claim or otherwise.
11.2 Grossing-up of Payments
If the Borrower or any other person is required by law to make any
deduction or withholding on account of any Relevant Tax or other amount
from any sum paid or payable by the Borrower to any Finance Party under the
Finance Documents:
(a) the Borrower shall notify the Facility Agent of any such requirement
or any change in any such requirement as soon as the Borrower becomes
aware of it;
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(b) the Borrower shall pay any such Relevant Tax or other amount before
the date on which penalties attach thereto, such payment to be made
for its own account unless that liability is imposed on any other
party in which case it shall be made on behalf of and in the name of
that party;
(c) the sum payable by the Borrower in respect of which the relevant
deduction or withholding of Relevant Tax is required shall be
increased to the extent necessary to ensure that, after the making of
that deduction or withholding, that Finance Party receives on the due
date and retains (free from any liability in respect of any 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 required or made; and
(d) within 30 days after paying any sum from which it is required by law
to make any deduction or withholding, and within 30 days after the due
date of payment of any Relevant Tax or other amount which it is
required by paragraph (b) above to pay, the Borrower shall deliver to
the Facility Agent evidence satisfactory to the other affected parties
of such deduction or withholding and of the remittance of such payment
to the relevant taxing or other authority.
11.3 Indemnity
Without prejudice to Clauses 11.1 (Payments to be free and clear) and 11.2
(Grossing-up of Payments), if any Finance Party (or any person on its
behalf) is required to make any payment on account of any Relevant Tax as a
direct result of the failure of the Borrower to comply with its obligations
under Clause 11.2 (Grossing-up of Payments) or any liability in respect of
any such Relevant Tax is assessed, levied, imposed or claimed against any
Finance Party (or any person on its behalf), the Borrower shall, on demand
by the Facility Agent, forthwith indemnify that Finance Party (or such
person) against such payment or liability, and any costs, charges and
expenses (including, without limitation, penalties) payable or incurred in
connection therewith.
11.4 Tax Credits
If and to the extent that any of the Finance Parties is able, in its sole
opinion, to apply or otherwise take advantage of any offsetting tax credit
or other similar tax benefit arising out of or in conjunction with any
deduction, withholding or payment which gives rise to an obligation on the
Borrower to pay any additional amount pursuant to Clause 11.2 (Grossing-up
of Payments) or 11.3 (Indemnity) that Finance Party shall, to the extent
that in its sole opinion it can do so without prejudice to the retention of
the amount of such credit or benefit and without any other adverse tax
consequences for that Finance Party, reimburse to the Borrower, at such
time as such tax credit or benefit shall have actually been received by
that Finance Party such amount as that Finance Party shall, in its sole
opinion, have determined to be attributable to the relevant deduction,
withholding or
25
payment and as will leave it in no better or worse position in respect of
its worldwide tax liabilities than it would have been in if the payment of
such additional amount had not been required. Such reimbursement (if any)
shall be conclusive evidence of the amount due to the Borrower, and shall
be accepted by the Borrower, in full and final settlement of any claim for
reimbursement under this Clause 11.4.
11.5 Tax Affairs
Nothing herein contained shall oblige any of the Finance Parties to
disclose to the Borrower or any other person any information regarding its
tax affairs or tax computations or interfere with the right of any Finance
Party to arrange its tax affairs in whatsoever manner it thinks fit and, in
particular, no Finance Party shall be under any obligation to claim relief
from its corporate profits or similar tax liability in credits or
deductions available to it (and, if it does claim, the extent, order and
manner in which it does so shall be at its absolute discretion).
11.6 Collecting Agent Rules
Each Bank represents to the Facility Agent that, on the date it becomes a
party to this Agreement, it is:
(a) either:
(i) not resident in the United Kingdom for United Kingdom tax
purposes; or
(ii) a bank as defined in Section 840A of the Taxes Act and
resident in the United Kingdom; and
(b) beneficially entitled to the principal and interest payable by the
Facility Agent to it under this Agreement;
and, if it is able to make these representations on the date on which it
becomes party to this Agreement, shall forthwith notify the Facility Agent
if either representation ceases to be correct.
11.7 Exceptions
No additional amount will be payable to a Finance Party under Clause 11.2
(Grossing-up of Payments) as a result of any deduction or withholding or
payment of United Kingdom Taxes to the extent that at the time such payment
falls due such Finance Party is not a Qualifying Person and such payment
would not have fallen due had such Finance Party been a Qualifying Person
unless the reason such Finance Party is not a Qualifying Person is a change
(after the date of this
26
Agreement or in the case of a Finance Party which became a party to this
Agreement after the date of this Agreement the date on which it became a
party) in any law or directive or in the interpretation or application
thereof or in any practice or concession of the United Kingdom Inland
Revenue.
For this purpose "Qualifying Person" means at any time:
(a) a bank as defined in the Section 840A of the Taxes Act for the
purposes of Section 349 of the Taxes Act which is within the charge to
United Kingdom corporation tax as regards any interest payable or paid
to it under this Agreement; or
(b) (in the case of a person which has its Lending Office outside the
United Kingdom) a person to whom payments under the Finance Documents
may be made without deduction or withholding for or on account of
United Kingdom Taxes by reason of an applicable taxation treaty
between the United Kingdom and the country in which that person is, or
is treated as, resident or carrying on business and pursuant to which
there is a valid and extant claim of such person.
11.8 Treaty Claims
Each Finance Party which is a Qualifying Person by virtue of paragraph (b)
of the definition thereof shall as soon as reasonably practicable make the
necessary claim under the relevant double taxation treaty for exemption
from United Kingdom Taxes and shall take all other steps as may be
necessary to facilitate the obtaining of a direction from the Inland
Revenue that payments may be made to that Finance Party by the Borrower
without withholding or deduction in respect of such Taxes.
12. CHANGE IN CIRCUMSTANCES
12.1 Illegality
If at any time, as a result of the introduction of or any change in, or in
the interpretation or application or administration of any law or (whether
or not having the force of law but, if not having the force of law, being
one with which it is the practice of banks in the relevant jurisdiction to
comply) any directive of any agency of any state, it is or will become
unlawful or contrary to any such directive for any Bank to allow all or
part of its Commitment to remain outstanding and/or to make, fund or allow
to remain outstanding all or part of its share of any Advance or
Utilisation and/or to carry out all or any of its other obligations under
this Agreement:
(a) upon that Bank notifying the Borrower, its Commitment shall be
cancelled;
27
(b) the Borrower shall provide Cash Collateral for that Bank's L/C
Proportion of the L/C Exposure under the Coal Letter of Credit and the
Capex Letter of Credit or procure that the contingent liability of
that Bank under that Letter of Credit is reduced by such an amount to
the satisfaction of the Facility Agent; and
(c) the Borrower shall prepay that Bank's portion of each such Advance as
that Bank shall certify to be necessary to comply with the relevant
law or directive, with accrued interest thereon and any other sum then
due to that Bank under this Agreement on the last day of the then
current Interest Period for that Advance or such earlier date as that
Bank shall certify to be necessary to comply with the relevant law or
directive.
12.2 Increased Costs
(a) If, as a result of the introduction of or any change in, or in the
interpretation or application or administration of, any law or
(whether or not having the force of law but, if not having the force
of law, being one with which it is the practice of banks in the
relevant jurisdiction to comply) any directive of any agency of any
state including, any law or directive relating to taxation, reserve
asset, special deposit, cash ratio, liquidity or capital adequacy
requirements or other forms of banking, fiscal, monetary, or
regulatory controls (and including any change in the risk weighting
applied to any amount):
(i) the cost to any Bank of maintaining all or any part of its
Commitment and/or of making, maintaining or funding all or any
part of its share of any Advance or Letter of Credit or
overdue sum is increased; and/or
(ii) any sum received or receivable by any Finance Party under the
Finance Documents or the effective return to it under the
Finance Documents is reduced; and/or
(iii) any Finance Party makes any payment or foregoes any interest
or other return on or calculated by reference to the amount of
any sum received or receivable by it under the Finance
Documents;
the Borrower shall indemnify that Finance Party against that increased
cost, reduction, payment or foregone interest or other return and,
accordingly, shall from time to time on demand (whenever made) pay to
the Facility Agent for its own account or for the account of that
Finance Party the amount certified by it to be necessary so to
indemnify it.
28
(b) The Borrower will not be obliged to compensate any Finance Party
pursuant to paragraph (a) above in respect of any increased cost,
reduction, payment, foregone interest or other return:
(i) compensated for by payment of the Additional Costs Rate;
(ii) attributable to a change in the Tax on the overall net income
of that Finance Party or compensated for under Clause 11
(Taxes and other Deductions); or
(iii) attributable to a breach of, or default in compliance with,
any law or directive by that Finance Party.
(c) To the extent that any holding company of any Finance Party suffers a
cost which would have been recoverable by that Finance Party under
this Clause 12.2 had that cost been imposed on that Finance Party,
that Finance Party shall be entitled to recover that amount under this
Clause 12.2 on behalf of the relevant holding company.
(d) If the Borrower is required to compensate any Finance Party pursuant
to paragraph (a) above in respect of any increased cost, reduction,
payment, forgone interest or other return then it may:
(i) prepay that Bank's portion of any Advance upon not less than
10 days' notice with accrued interest thereon and any other
sum then due to that Bank under this Agreement; and
(ii) provide Cash Collateral for that Bank's L/C Proportion of the
L/C Exposure under the Coal Letter of Credit or the Capex
Letter of Credit or procure that the contingent liability of
that Bank under that Letter of Credit is reduced by such an
amount to the satisfaction of the Facility Agent.
12.3 Mitigation
If in respect of any Bank, circumstances arise which would, or would upon
the giving of notice, result in:
(a) an obligation to make any payment or the cancellation of its
Commitment under Clause 11 (Taxes and Other Deductions); or
(b) an obligation to provide Cash Collateral or to make payment or the
cancellation of its Commitment under Clause 12.1 (Illegality); or
29
(c) a demand for compensation under Clause 12.2 (Increased Costs);
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrower under those Clauses, upon the request of the
Borrower, such Bank, in consultation with the Facility Agent and the
Borrower, shall take such reasonable steps as may be open to it (including
the transfer by the relevant Bank of its Commitment and participations in
outstanding Advances to a bank or financial institution acceptable to the
Borrower) to mitigate the effects of such circumstances, on terms mutually
acceptable to the Facility Agent, that Bank and the Borrower, provided that
the Bank concerned will not be obliged to take any action if to do so would
or might in the opinion of the Bank have an adverse effect upon its
business, operations or financial condition or cause it to incur
liabilities or obligations (including tax liabilities) which, in its
opinion, are material or cause it to incur any costs or expenses for which
it has not been indemnified to its satisfaction by the Borrower.
12.4 Change in Market Conditions
(a) If in relation to any Interest Period:
(i) no or only one Reference Bank supplies a quotation in
accordance with the definition of LIBOR; or
(ii) on the basis of notifications from Banks whose Commitments
exceed 50% of the Total Commitments under the Coal Facility or
the Capex Facility, as the case may be, the Facility Agent
determines that (a) matching deposits are not available in the
London Inter-Bank Market at or about 11 a.m. on the Rate
Fixing Day for that Interest Period in sufficient amounts to
fund their respective shares of the amount to which that
Interest Period relates during that Interest Period or (b) the
quotations supplied do not accurately reflect the cost to the
Banks of obtaining such deposits,
the Facility Agent shall promptly notify the Borrower and the Banks.
(b) The Facility Agent (on behalf of and after consultation with the
Banks) shall then negotiate with the Borrower with a view to agreeing
an alternative basis for calculating the interest payable on the
Advance(s) to which that Interest Period relates. Any alternative
basis agreed in writing by the Facility Agent (on behalf of and with
the consent of all the Banks) and the Borrower within 10 Business Days
of the Facility Agent's notification of the event in question shall
take effect in accordance with its terms. If an alternative basis is
not so agreed, each Bank's share of such Advance(s) shall during that
Interest Period bear interest at the rate per annum equal to the sum
of (i) the Applicable Margin and (ii) the cost to that Bank (as
certified by it to the Borrower within 10 Business Days of the end of
that 10 Business Day period and expressed as a rate per annum) of
funding its share during that
30
Interest Period by whatever means that Bank determines (acting
reasonably) to be most appropriate (which shall include Additional
Costs).
13. PAYMENTS
13.1 By Banks
(a) On each date on which an Advance or Utilisation is to be made, each
Bank shall make its share of that Advance or Utilisation available to
the Facility Agent in the place for payment to the Borrower by
payment in Sterling and in immediately available cleared funds to
such account as the Facility Agent shall specify.
(b) The Facility Agent shall make the amounts so made available to it
available to the Borrower, the Project Company or such other person
as specified in the relevant Request or L/C Request before close of
business in the place of payment on that date by payment in the same
currency and funds as received by the Facility Agent to such account
of the Borrower , the Project Company or other person as shall have
been specified in the Request or L/C Request. If any Bank makes its
share of any Advance or Utilisation available to the Facility Agent
later than required by paragraph (a) above, the Facility Agent shall
make that share available to the Borrower, the Project Company or
other person as soon as practicable thereafter.
13.2 By the Borrower
(a) On each date on which any sum is due from the Borrower, it shall make
that sum available to the Facility Agent in the place for payment by
payment in the currency in which that sum is due and in immediately
available cleared funds to such account as the Facility Agent shall
specify.
(b) The Facility Agent shall make available to each Finance Party before
close of business in that place on that date its pro rata share (if
any) of any sum so made available to the Facility Agent in the same
currency and funds as received by the Facility Agent to such account
of that Finance Party with such bank in that place as it shall have
specified to the Facility Agent. If any sum is made available to the
Facility Agent later than required by paragraph (a) above, the
Facility Agent shall make each Bank's share (if any) available to it
as soon as practicable thereafter.
13.3 Refunding of Payments
The Facility Agent shall not be obliged to make available to any person
any sum which it is expecting to receive for the account of that person
until it has been able to establish that
31
it has received that sum. However, it may do so if it wishes. If and to
the extent that it does so but it transpires that it had not then received
the sum which it paid out:
(a) the person to whom the Facility Agent made that sum available shall
on request refund it to the Facility Agent; and
(b) the person by whom that sum should have been made available or, if
that person fails to do so the person to whom that sum should have
been made available, shall on request pay to the Facility Agent the
amount (as certified by the Facility Agent) which will indemnify the
Facility Agent against any funding or other cost, loss, expense or
liability sustained or incurred by it as a result of paying out that
sum before receiving it.
13.4 Non-Business Days
(a) If an Interest Period would otherwise end on a day which is not a
Business Day, it shall instead end on the succeeding Business Day or,
if that Business Day falls in a new calendar month, the preceding
Business Day.
(b) Subject to paragraph (a) above, any payment to be made by the
Borrower on a day which is not a Business Day shall instead be due on
the next Business Day.
14. REPRESENTATIONS AND WARRANTIES
14.1 Representations and Warranties
The Borrower, having made all reasonable enquiries, makes the
representations and warranties set out in this Clause 14 to each of the
Finance Parties.
14.2 Due incorporation
(a) It is a limited liability company, duly incorporated and validly
existing under the laws of the jurisdiction of its incorporation.
(b) It has the power to own its assets and carry on its business as it is
being conducted.
14.3 Due execution
(a) It has the power to execute, deliver and perform, and has taken all
necessary action to authorise the execution, delivery and performance
of its obligations under, each Finance Document to which it is a
party.
32
(b) No limitation on its powers to borrow or give guarantees or security
will be exceeded as a result of borrowings or creation of security
under the Finance Documents.
14.4 Valid obligations
Subject to the reservations in the legal opinions to be provided pursuant
to Clause 4.1(a) (Initial Conditions Precedent), each Finance Document to
which it is or will be a party constitutes its valid, legally binding and
enforceable obligations.
14.5 Authorisations
All Authorisations required to be obtained by it in connection with the
entry into, performance, validity and enforceability of the Finance
Documents and the transactions contemplated by the Finance Documents have
been obtained or effected and are in full force and effect.
14.6 Pari passu ranking
Its obligations under the Finance Documents will be direct, general and
unconditional obligations and, to the extent not secured, rank at least
pari passu with all its other present and future unsecured and
unsubordinated obligations, with the exception of any obligations which
are mandatorily preferred by law and not by contract.
14.7 No conflict with other documents
The execution and delivery of, the performance of its obligations under,
and compliance with the provisions of, the Finance Documents to which it
is a party do not and will not:
(a) contravene any existing applicable law, statute, rule or regulation
or judicial or official order, decree or Authorisation to which it is
subject; or
(b) conflict with any provision of its memorandum and articles of
association; or
(c) conflict with, or result in any breach of any of the terms of, or
constitute a default under, any agreement or other instrument to
which it is a party or is subject or by which it or any of its
property is bound.
14.8 No insolvency or creditors' process
It has not taken any steps and is not aware of any steps having been or
are being taken for its winding-up, dissolution, administration or
reorganisation or similar event or for the appointment of a receiver,
administrator, administrative receiver, trustee or similar officer
33
of it or any or all of its assets or revenues and no petition, execution,
attachment or any similar process has been levied or enforced against its
assets or revenues.
14.9 No prior business
The Borrower is a single purpose vehicle and it has not previously
conducted any business, entered into any contracts, given any security,
incurred any liabilities or acquired any assets.
14.10 Application of Advances and Utilisations
The proceeds of each Advance and each Utilisation will be applied for the
purpose set out in Clause 2.3 (Purpose).
14.11 Times for making Representations and Warranties
The representations and warranties set out in this Clause 14 are made by
the Borrower on the date of this Agreement. The representations in Clauses
14.2 (Due Incorporation) to 14.4 (Valid Obligations) (inclusive) and
Clause 14.10 (Application of Advances and Utilisations) are deemed to be
repeated by the Borrower on the date of a Request and the first day of
each Interest Period with reference to the facts and circumstances then
existing.
15. POSITIVE COVENANTS
15.1 Positive covenants
The Borrower undertakes with the Finance Parties, that, except with the
prior written consent of the Facility Agent, it shall comply with the
covenants set out in this Clause 15.
15.2 Authorisations
The Borrower shall obtain, or cause to be obtained, maintain and comply
with the terms of any Authorisations required by it, and promptly
following a request by the Facility Agent to do so, supply certified
copies of material Authorisations to the Facility Agent, to authorise or
in connection with:
(a) the execution, delivery, validity, enforceability or admissibility in
evidence of each Finance Document to which it is a party;
(b) the performance by it of its obligations and the enforcement of its
rights under each Finance Document to which it is a party.
34
15.3 Compliance with laws
The Borrower shall, in all material respects do, or cause to be done, all
acts and things which may from time to time be required under any
applicable law or regulation for the due performance of all of its
obligations under each Finance Document to which it is a party.
15.4 Pari passu ranking
The Borrower will ensure that its obligations under each of the Finance
Documents are direct, general and unconditional obligations and to the
extent not secured, rank and will at all times rank at least pari passu in
right and priority of payment with all its other present and future
unsecured and unsubordinated indebtedness (actual or contingent) with the
exception of any obligations which are mandatorily preferred by law and
not by contract.
15.5 Financial information
(a) The Borrower shall supply in sufficient copies for each of the Banks,
to the Facility Agent as soon as the same become available, but in
any event within 120 days after the end of each of its financial
years (beginning with the current financial year), a copy of its
audited, financial statements for such financial year together with
the Auditors' report and management letter accompanying such
financial statements (the "Audited Accounts").
(b) The Borrower shall procure that the financial statements delivered
pursuant to paragraph (a) above shall include such financial
statements as are required by the Companies Xxx 0000 and UK GAAP and
save as stated in the notes thereto, were prepared and audited in
accordance with UK GAAP consistently applied and together with those
notes, give a true and fair view of its state of affairs, profits and
financial condition as at that date and for the financial year then
ended.
15.6 Notification of Events of Default
The Borrower will notify the Facility Agent of the occurrence of any Event
of Default or Potential Event of Default promptly upon becoming aware of
it, together with details of what action (if any) is being taken or
proposed to be taken to remedy the Event of Default or Potential Event of
Default.
15.7 Further information
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The Borrower shall promptly supply to the Facility Agent on request such
information in relation to its business, financial condition and
operations as the Facility Agent may reasonably request.
15.8 Notification of other events
As soon as practicable after becoming aware of the occurrence of the same,
the Borrower will inform the Facility Agent in writing of:
(a) the commencement, or threat of commencement, of any material legal or
administrative proceedings against the Borrower or the Guarantor;
(b) the receipt of any adverse legal, Tax or governmental regulatory
notice which is significant;
together with, in each case, where appropriate, details of the proposed
response or remedial action (including regular updates of the remedial
action, as reasonably requested by the Facility Agent).
15.9 Taxes
The Borrower shall promptly pay all Taxes when due, unless and to the
extent that the Taxes are being contested in good faith by the Borrower.
15.10 Special purpose vehicle
Save with the consent of the Majority Banks (such consent not to be
unreasonably withheld), the Borrower shall remain a special purpose
vehicle and shall not conduct any business, enter into any contracts, give
any security, incur any liabilities or acquire any assets other than in
relation to the Finance Documents and anything incidental thereto.
16. NEGATIVE COVENANTS
16.1 Negative covenants
The Borrower undertakes with the Finance Parties that, except with the
prior written consent of the Facility Agent, it shall comply with the
covenants set out in this Clause 16.
16.2 Amendments to Memorandum and Articles of Association
The Borrower will not amend or permit any amendment to or variation of its
Articles of Association and/or its Memorandum of Association except for an
amendment or variation which does not adversely affect the interests of
the Finance Parties and which is promptly notified to the Facility Agent.
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16.3 Restriction on mergers
The Borrower will maintain its corporate existence and will not enter into
any amalgamation, demerger, merger or reconstruction.
17. EVENTS OF DEFAULT
17.1 Events of Default
Each of the events or circumstances as set out in this Clause 17 is an
Event of Default.
17.2 Non-Payment of Obligations
An Obligor shall default in the payment when due under any Finance
Document (and such default shall continue unremedied for a period of five
Business Days).
17.3 Breach of Warranty
Any representation or warranty of an Obligor made or deemed to be restated
or remade in any Finance Document or any other writing or certificate
furnished by or on behalf of an Obligor to the Facility Agent or any Bank
for the purposes of or in connection with any Finance Document is or shall
be incorrect when made or deemed made in any material respect.
17.4 Non-Performance of Certain Covenants and Obligations
The Guarantor shall default in the due performance and observance of any
of its obligations under Clause 4.2 (Negative Covenants) of the Guarantee
(other than Clauses 4.2.3 (Financial Condition) and 4.2.7 (Transactions
with Affiliates)).
17.5 Non-Performance of Other Covenants and Obligations
An Obligor shall default in the due performance and observance of any
covenant or agreement (other than those where such default is an Event of
Default under Clause 17.4 (Non-Performance of Certain Covenants and
Obligations)) contained in any Finance Document and such default shall
continue unremedied for a period of 30 days after written notice thereof
shall have been given to the relevant Obligor by the Facility Agent.
17.6 Default on Other Indebtedness
A default shall occur in the payment when due (subject to any applicable
grace period), whether by acceleration or otherwise, of any Indebtedness
of an Obligor or a default shall occur in the performance or observance of
any obligation or condition with respect to such Indebtedness if the
effect of such default is to accelerate the maturity of any such
Indebtedness or such default shall continue unremedied for any applicable
period of time sufficient to permit the holder or holders of such
Indebtedness, or any trustee or agent for such holders, to cause such
Indebtedness to become
37
due and payable prior to its expressed maturity, in either case, such
default having a principal amount, individually or in the aggregate, in
excess of US$20,000,000 (other than Indebtedness described in Clause 17.2
(Non-Payment of Obligations) above).
17.7 Judgments
Any judgment or order for the payment of money in excess of US$20,000,000
(taking into account any insurance proceeds payable under a policy where
the insurer has accepted coverage without reservation) shall be rendered
against an Obligor and either:
(a) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order; or
(b) there shall be any period of fifteen (15) consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect.
17.8 Pension Plans
Any of the following events shall occur with respect to any Pension Plan
(as that term is defined in the Guarantee):
(a) the institution of any steps by an Obligor, any member of its
Controlled Group (as that term is defined in the Guarantee) or any
other Person to terminate a Pension plan if, as a result of such
termination, the Guarantor or any such member could be required to
make a contribution to such Pension Plan, or could reasonably expect
to incur a liability or obligation to such Pension Plan, in excess of
US$20,000,000; or
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien (as that term is defined in the
Guarantee) under Section 302(f) of ERISA (as that term is defined in
the Guarantee).
17.9 Control of an Obligor
(a) Any Change in Control (as that term is defined in the Guarantee)
shall occur; or
(b) The Borrower is not or ceases to be the wholly owned subsidiary of
the Guarantor.
17.10 Bankruptcy, Insolvency
An Obligor shall:
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(a) become insolvent or generally fail to pay, or admit in writing its
inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a trustee,
receiver, administrator, administrative receiver, liquidator,
sequestrator or other custodian for that Obligor or a substantial
portion of its property, or make a general assignment for the benefit
of creditors;
(c) in the absence of such application, consent or acquiescence, permit
or suffer to exist the appointment of a trustee, receiver,
administrator, administrative receiver, liquidator, sequestrator or
other custodian for that Obligor or for a substantial part of its
property, and such trustee, receiver, administrator, administrative
receiver, liquidator, sequestrator or other custodian shall not be
discharged within 60 days, provided that nothing in the Finance
Documents shall prohibit or restrict any right the Facility Agent or
any Bank may have under applicable law to appear in any court
conducting any relevant proceeding during such 60 day period to
preserve, protect and defend its right under the Finance Documents
(and that Obligor shall not object to any such appearance);
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganisation, debt arrangement, administration or other case or
proceeding under any bankruptcy or insolvency law, or any
dissolution, winding up or liquidation proceeding, in respect of that
Obligor and, if any such case or proceeding is not commenced by that
Obligor, such case or proceeding shall be consented to or acquiesced
in by that Obligor or shall result in the entry of an order for
relief or shall remain for 60 days undismissed, provided that nothing
in the Finance Documents shall prohibit or restrict any right the
Facility Agent or any Bank may have under applicable law to appear in
any court conducting any such case or proceeding during such 60 day
period to preserve, protect and defend its rights under the Finance
Documents (and that Obligor shall not object to any such appearance);
or
(e) take any corporate action authorising, or in furtherance of, any of
the foregoing.
17.11 Guarantee
(a) The Guarantee is not or ceases to be, for any reason, the valid,
legally binding and enforceable obligation of the Guarantor; or
(b) This Agreement is not or ceases to be, for any reason, the valid,
legally binding and enforceable obligation of the Borrower.
17.12 Cancellation and repayment
At any time after the occurrence of an Event of Default (and whilst the
same is continuing) the Facility Agent may, and will if so directed by the
Majority Banks, by written notice to the
39
Borrower do all or any of the following in addition and without prejudice
to any other rights or remedies which it or any other Finance Party may
have under this Agreement or any of the other Finance Documents:
(a) declare all Advances, accrued interest thereon and any other sum then
payable under this Agreement and any of the other Bank Finance
Documents to be immediately due and payable, whereupon such amounts
shall become so due and payable; and/or
(b) declare all Advances to be payable on demand whereupon the same shall
become payable on demand; and/or
(c) require the Borrower to provide Cash Collateral for the L/C Exposure
of each Letter of Credit (less the aggregate of any remaining Cash
Collateral provided under Clause 12.1 (Illegality) or Clause 12.2
(Increased Costs)) whereupon the Borrower shall provide such Cash
Collateral.
18. THE FACILITY AGENT
18.1 Authorisation
(a) Each Bank hereby appoints and authorises the Facility Agent to take
such action as agent on its behalf and to exercise such powers and
discretions under the Finance Documents as are delegated to the
Facility Agent by the terms of the Finance Documents together with
such other powers and discretions as are reasonably incidental
thereto.
(b) The Facility Agent will act solely as agent for the Banks in carrying
out its functions as agent under the Finance Documents. The Facility
Agent shall not have, nor be deemed to have, assumed any obligations
to, or trust or fiduciary relationship with, the other Finance
Parties or the Obligors other than those for which specific provision
is made by the Finance Documents.
18.2 Facility Agent's Duties
The Facility Agent shall:
(a) promptly send to each Bank each notice received by it from an Obligor
under any of the Finance Documents except in the case of any notice
relating to a particular Bank which shall be sent to that Bank only;
(b) (subject to those provisions of the Finance Documents which require
the consent of all the Banks) act in accordance with any instructions
from the Majority Banks or, if so instructed
40
by the Majority Banks, refrain from exercising a right, power or
discretion vested in it under any of the Finance Documents;
(c) have only those duties, obligations and responsibilities expressly
specified in the Finance Documents; and
(d) without prejudice to Clause 18.7 (Information) promptly notify each
Bank if it becomes aware of the occurrence of any Event of Default or
Potential Event of Default.
18.3 Facility Agent's Rights
The Facility Agent may:
(a) perform any of its duties, obligations and responsibilities under
this Agreement or any of the other Finance Documents by or through
its personnel or agents;
(b) refrain from exercising any right, power or discretion vested in it
under the Finance Documents until it has received instructions from
the Majority Banks as to whether (and, if it is to be, the way in
which) it is to be exercised and shall in all cases be fully
protected when acting, or (if so instructed) refraining from acting,
in accordance with instructions from the Majority Banks;
(c) treat (i) the Bank which makes available any portion of an Advance as
the person entitled to repayment of that portion unless the Facility
Agent has received a Transfer Certificate in relation to all or part
of it in accordance with Clause 18 (Assignments and Transfers); and
(ii) the office notified to the Facility Agent on or before the date
of this Agreement (or, in the case of a Transferee, specified at the
end of the Transfer Certificate to which it is a party as Transferee)
as its Lending Office unless the Facility Agent has received from
that Bank a notice of change of Lending Office and may act on any
such notice until it is superseded by a further such notice;
(d) refrain from doing anything which would or might in its opinion be
contrary to any law, regulation or judgment of any court of any
jurisdiction or any directive of any agency of any state or otherwise
render it liable to any person and may do anything which is in its
opinion necessary to comply with any such law, regulation, judgment
or directive;
(e) assume that no Event of Default or Potential Event of Default has
occurred unless an officer of the Facility Agent, while active on the
account of either Obligor acquires actual knowledge to the contrary;
41
(f) refrain from taking any step (or further step) to protect or enforce
the rights of any Bank under the Finance Documents until it has been
indemnified and/or secured to its satisfaction against any and all
costs, losses, expenses or liabilities (including legal fees) which
it would or might sustain or incur as a result;
(g) rely on any communication or document believed by it to be genuine;
(h) rely, as to any matter of fact which might reasonably be expected to
be within the knowledge of an Obligor, on a statement by or on behalf
of such Obligor;
(i) obtain and pay for such legal or other expert advice or services as
may to it seem necessary or desirable and rely on any such advice;
(j) retain for its own benefit and without liability to account any fee
or other sum receivable by it for its own account; and
(k) accept deposits from, lend money to, provide any advisory or other
services to or engage in any kind of banking or other business with
any party to the Finance Documents, or any Affiliate of any party
(and, in each case, may do so without liability to account).
18.4 Exoneration of Facility Agent
Neither the Facility Agent nor any of its personnel or agents will:
(a) be responsible for the adequacy, accuracy or completeness of any
representation, warranty, statement or information in any Finance
Document or any notice or other document delivered under any Finance
Documents (including the Information Memorandum);
(b) be responsible for the execution, delivery, validity, legality,
adequacy, enforceability or admissibility in evidence of any Finance
Document;
(c) be responsible for the collectability of amounts payable under any
Finance Document;
(d) be obliged to enquire as to the occurrence or continuation of an
Event of Default or Potential Event of Default; or
(e) be liable for anything done or not done by it or any of them under or
in connection with any Finance Document save in the case of its own
or their own negligence or wilful misconduct.
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18.5 Facility Agent as a Finance Party
The Facility Agent shall have the same rights and powers with respect to
its participation in the Finance Documents as any other Finance Parties
and may exercise those rights and powers as if it were not also acting as
Facility Agent.
18.6 Non-Reliance on Facility Agent
Each of the Finance Parties confirms that it has itself been, and will at
all times continue to be, solely responsible for making its own
independent investigation and appraisal of the business, financial
condition, creditworthiness, status and affairs of the Borrower and its
related entities and has not relied, and will not at any time rely, on the
Facility Agent:
(a) to provide it with any information relating to the business,
financial condition, creditworthiness, status or affairs of the
Borrower, whether coming into its possession before or after the
making of any Advance (save as provided in Clause 18.2 (Facility
Agent's Duties)); or
(b) to check or enquire into the adequacy, accuracy or completeness of
any information provided by the Borrower under or in connection with
any Finance Document (whether or not such information has been or is
at any time circulated to it by the Facility Agent); or
(c) to assess or keep under review the business, financial condition,
creditworthiness, status or affairs of the Borrower.
18.7 Information
(a) The Facility Agent shall promptly forward to the person concerned the
original or a copy of any document which is delivered to the Facility
Agent for that person.
(b) Except where this Agreement specifically provides otherwise, the
Facility Agent is not obliged to review or check the accuracy or
completeness of any document it forwards to another party to this
Agreement.
(c) Except as provided above, the Facility Agent has no duty:
(i) either initially or on a continuing basis to provide any Bank
with any credit or other information concerning the financial
condition or affairs of the Borrower or its related entities,
whether coming into its possession before, on or after the
date of this Agreement; or
43
(ii) unless specifically requested to do so by a Bank in accordance
with a Finance Document to request any certificates or other
documents from the Borrower.
18.8 Indemnity to Facility Agent
To the extent that the Borrower does not do so on demand or is not obliged
to do so, each Bank shall on demand indemnify the Facility Agent in the
proportion borne by its Commitments to the Total Commitments at the
relevant time (or, if no Commitments are then outstanding, in the
proportion borne by its Commitments to the Total Commitments at the last
time there were any) against any cost, expense or liability mentioned in
Clause 23 (Indemnities) or sustained or incurred by the Facility Agent in
complying with any instructions from the Majority Banks or otherwise
sustained or incurred by it in connection with the Finance Documents or
its duties, obligations and responsibilities under the Finance Documents
except to the extent that they are sustained or incurred as a result of
the negligence or wilful misconduct of the Facility Agent or any of its
personnel or agents.
18.9 Resignation of Facility Agent
The Facility Agent may resign its appointment hereunder at any time
without assigning any reason therefor by giving not less than thirty days'
prior written notice to that effect to the Borrower and each of the other
Finance Parties provided that no such resignation shall be effective until
a successor for the Facility Agent is appointed in accordance with this
Clause 18.9. If the Facility Agent gives notice of its resignation then
any reputable and experienced bank or other financial institution with
offices in London may after consultation with the Borrower be appointed as
a successor to the Facility Agent by the Majority Banks during the period
of such notice but, if no such successor is so appointed, the Facility
Agent may appoint a successor itself after consultation with the Borrower.
If a successor to the Facility Agent is so appointed, then (i) the
retiring Facility Agent shall be discharged from any further obligation
hereunder but shall remain entitled to the benefit of the provisions of
this Clause 18 and (ii) its successor and each of the other parties hereto
shall have the same rights and obligations amongst themselves as they
would have had if such successor had been an original party hereto.
18.10 Payments to Finance Parties
(a) The Facility Agent will account to the other Finance Parties for
their respective due proportions of all sums received by the Facility
Agent for such Finance Parties, whether by way of repayment of
principal or payment of interest, commitment commission, fees or
otherwise.
44
(b) The Facility Agent may retain for its own use and benefit, and will
not be liable to account to the other Finance Parties for all or any
part of any sums received by way of agency or arrangement fee or by
way of reimbursement of expenses incurred by it.
18.11 Change of Office of Facility Agent
The Facility Agent may at any time and from time to time in its sole
discretion by written notice to the Borrower and each of the other Finance
Parties designate a different office from which its duties as Facility
Agent will be performed.
19. ASSIGNMENTS AND TRANSFERS
19.1 Successors
This Agreement shall be binding upon and enure to the benefit of each
party hereto and its or any subsequent successors, Transferees and
assigns.
19.2 Assignments and Transfers by the Borrower
The Borrower shall not be entitled to assign or transfer all or any of its
rights, benefits and obligations hereunder.
19.3 Transfer by Banks
(a) Subject to paragraph (b) below, a Bank (the "Existing Bank") may at
any time transfer any of its rights and obligations under the Finance
Documents to another bank or financial institution (the "New Bank").
An Existing Bank shall transfer its rights and obligations to a New
Bank where the credit rating of the Existing Bank has fallen below A-
as rated by Standard & Poor's or A3 by Xxxxx'x Investor Services Inc.
unless the Existing Bank is able to provide cash collateral for all
its obligations under the Letters of Credit to the satisfaction of
the Project Company. The prior consent of the Borrower and of the
Guarantor is required for any such transfer (unless such transfer is
to an Affiliate or to a New Bank which was already a Bank), but will
not be unreasonably withheld or delayed.
(b) Subject to paragraph (c) below, no Bank may assign, transfer, novate
or dispose of, or any interest in, rights and/or obligations under
the Finance Documents other than in accordance with Clause 19.4
(Procedure for Transfer).
(c) Nothing in this Agreement restricts the ability of a Bank to sub-
contract an obligation if that Bank remains liable under this
Agreement for that obligation.
45
(d) On each occasion an Existing Bank transfers any of its rights and
obligations under the Finance Documents, the New Bank shall, on the
date the transfer takes effect, pay to the Facility Agent for its own
account a fee of (Pound Sterling)1,000 (indexed).
(e) An Existing Bank is not responsible to a New Bank for:
(i) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance
Document; or
(iii) the accuracy of any statements (whether written or oral) made
in or in connection with any Finance Document.
(f) Each New Bank confirms to the Existing Bank and the other Finance
Parties that it:
(i) has made its own independent investigation and assessment of
the financial condition and affairs of the Obligors and its
related entities in connection with its participation in this
Agreement and has not relied exclusively on any information
provided to it by the Existing Bank in connection with any
Finance Documents; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of the Obligors and its related entities
while any amount is or may be outstanding under this Agreement
or any Commitment is in force.
(g) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a New Bank of any of the rights and
obligations transferred under Clause 19.4 (Procedure for
Transfers); or
(ii) support any losses incurred by the New Bank by reason of the
non-performance by an Obligor of its obligations under the
Finance Documents or otherwise.
(h) Any reference in a Finance Document to a Bank includes a New Bank,
but excludes a Bank if no amount is or may be owed to or by that Bank
under the Finance Documents and its Commitment has been cancelled or
reduced to zero.
46
19.4 Procedure for Transfer
(a) A transfer is effected if the Existing Bank and the New Bank deliver
to the Facility Agent and to the Project Company a duly completed
certificate, substantially in the form of Schedule 5 (Form of
Transfer Certificate) (a "Transfer Certificate"). Such delivery shall
take place at least 5 Business Days prior to the date specified
therein.
(b) Each Party (other than the Existing Bank and the New Bank)
irrevocably authorises the Facility Agent to execute any duly
completed Transfer Certificate on its behalf.
(c) To the extent that they are expressed to be the subject of the
transfer in the Transfer Certificate:
(i) the Existing Bank and the other Parties (the "existing
Parties") will be released from their obligations to each
other (the "discharged obligations");
(ii) the New Bank and the existing Parties will assume obligations
towards each other which differ from the discharged
obligations only insofar as they are owed to or assumed by the
New Bank instead of the Existing Bank;
(iii) the rights of the Existing Bank against the existing Parties
and vice versa (the "discharged rights") will be cancelled;
and
(iv) the New Bank and the existing Parties will acquire rights
against each other which differ from the discharged rights
only insofar as they are exerciseable by or against the New
Bank instead of the Existing Bank,
on the date specified in the Transfer Certificate.
(d) A transfer will only be effective if the proportion of the Existing
Bank's Commitments, L/C Exposures and outstanding Advances the
subject of the Transfer Certificate are the same.
(e) A Bank transferring all or part of its Commitment and outstanding
Advances under either Facility must transfer all or a corresponding
part of its Commitments and outstanding Advances under the other
Facility.
19.5 Disclosure of Information
Any Bank may disclose to any person:
47
(a) to (or through) whom such Bank assigns or transfers (or may
potentially assign or transfer) all or any of its rights, benefits
and obligations hereunder; or
(b) with (or through) whom such Bank enters into (or may potentially
enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference to, the
Finance Documents or the Borrower,
such information about the Borrower or the Finance Documents as the Bank
shall consider appropriate provided that such person has first entered
into a confidentiality agreement with the Borrower on the terms of Clause
21.3 (Confidentiality).
20. PRO RATA PAYMENTS, RECEIPTS AND SET OFF
20.1 Pro rata payments
(a) If any amount owing by an Obligor under any Finance Document to a
Bank (the "Recovering Bank") is discharged by payment, set-off or any
other manner other than through the Facility Agent in accordance with
Clause 13 (Payments) (such amount being referred to in this Clause
20.1 as a "Recovery") then:
(i) within 2 Business Days of receipt of the Recovery the
Recovering Bank shall pay to the Facility Agent an amount
equal (or equivalent) to such Recovery;
(ii) the Facility Agent shall treat such payment as if it were part
of the payment to be made by the Borrower to the Banks
rateably in accordance with their respective entitlements; and
(iii) (save for any receipt by the Recovering Bank as a result of
the operation of paragraph (ii) above) as between the Borrower
and the Recovering Bank the Recovery shall be treated and
deemed as not having been paid.
(b) Each Bank will notify the Facility Agent promptly of any such
Recovery by that Bank other than by payment through the Facility
Agent. If any Recovery subsequently has to be wholly or partly
refunded by the Recovering Bank which paid an amount equal thereto to
the Facility Agent under paragraph (a) above, each Bank to which any
part of that amount was distributed will, 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 will 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 20.1.
48
(d) Each party to this Agreement agrees to take all steps required of it
pursuant to paragraph (a) above and to use its reasonable endeavours
to obtain any consents or authorisations which may at any relevant
time be required in respect of any payment to be made by it pursuant
to this Clause 20.1.
(e) The provisions of this Clause 20.1 shall not, and shall not be
construed so as to, constitute a charge by any Bank over all or any
part of any sum received or recovered by it under any of the
circumstances mentioned in this Clause 20.1.
20.2 Receipts
If any sum paid or recovered in respect of the liabilities of the Borrower
under any of the Finance Documents is less than the amount then due, the
Facility Agent shall apply that sum against amounts outstanding under the
Finance Documents in the following order:
(a) first to any unpaid fees and reimbursement of unpaid expenses of the
Facility Agent under the Finance Documents;
(b) second to any unpaid fees and reimbursement of unpaid expenses of the
Banks due under the Finance Documents;
(c) third to unpaid interest;
(d) fourth to unpaid principal; and
(e) fifth to other amounts due under the Finance Documents,
in each case (other than (a)) pro rata to the outstanding amounts owing to
the Finance Parties under the Finance Documents taking into account any
applications under this Clause 20.2.
20.3 Set-Off
49
(a) After an Event of Default has occurred and for so long as it is
continuing each Finance Party is hereby authorised at any time and
from time to time (without notice to the Borrower) to set-off or
otherwise apply any and all deposits (irrespective of the terms
applicable to such deposits) at any time held and other indebtedness
at any time owing by such Finance Party to or for the account of the
Borrower (in any such case whether or not then matured or due)
against any indebtedness of the Borrower to the relevant Finance
Party under the Finance Documents which is due and unpaid. Nothing in
this Clause 20.3 shall be effective to create a security interest.
(b) The rights of each Finance Party under this Clause 20 are in addition
to other rights and remedies (including, without limitation, other
rights of set-off) that such Finance Party may have.
(c) A Finance Party may exercise such rights notwithstanding that the
amounts concerned may be expressed in different currencies and each
Finance Party is authorised to effect any necessary conversions at a
market rate of exchange selected by it.
21. NOTICES, CONFIDENTIALITY AND CERTIFICATES
21.1 Notices
(a) Any notice or other communication to be served under or in connection
with this Agreement shall, unless otherwise stated, be made in
writing and served by letter or facsimile to the relevant party at
its address or facsimile number notified to the Facility Agent on or
before the date on which it became a party to this Agreement or such
other address or number notified by it to the Facility Agent by not
less than 5 Business Days notice (or in the case of a notice to the
Facility Agent, to its address or facsimile number specified below)
and, in the case of any Finance Parties, marked for the attention of
the person or department there specified.
(b) Any notice or other communication served by post will, unless
otherwise stated, be deemed served 48 hours after posting or on
delivery if delivered personally or by courier. A notice or other
communication sent by facsimile transmission will, unless otherwise
stated, be deemed served at the time of transmission unless served on
a day which is not a Business Day or after 5 pm London time in which
case it will be deemed served at 9 am on the following Business Day
provided that any notice or communication served on any Finance
Parties will only be deemed served on receipt by the relevant party.
(c) In proving service of any notice or other communication it will be
sufficient to prove:
50
(i) in the case of a letter, that such letter was properly stamped
or franked, addressed and placed in the post or in the case of
personal delivery, was left at the correct address; and
(ii) in the case of a facsimile transmission, that such facsimile
was duly transmitted to the telex or facsimile number, as
appropriate, of the addressee referred to in paragraph (a)
above.
(d) The address and facsimile number of the Facility Agent as at the date
of this Agreement are:
Barclays Bank PLC
5 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx
X00 0XX
Attn: Xxxx Xxxxxx
Fax: 0000 000 0000
(e) The address and facsimile number of the Project Company as at the
date of this Agreement for the purposes of Clause 19.4 (Procedure for
Transfer) are:
Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxx
Xxxxxx
X0X 0XX
Attn: The General Counsel
Edison First Power Limited
Fax: 0000 000 0000
21.2 Certificates
Any certificate, determination, notification or opinion of any Finance
Parties or group of Finance Parties as to any rate of interest or any
other amount payable under any Finance Document will set out in reasonable
detail the basis of computation of the amount claimed and will be prima
facie evidence of the matters to which it relates.
51
21.3 Confidentiality
Subject to Clause 19.5 (Disclosure of Information), the parties will keep
confidential the Finance Documents and all information which they acquire
under or in connection with the Finance Documents save that such
information may be disclosed:
(a) if so required by law or regulation or, if requested by any regulator
with jurisdiction over any Finance Party or any Affiliate of any
Finance Party;
(b) if (but only to the extent that) it comes into the public domain
(other than as a result of a breach by that party of this Clause
21.3);
(c) to auditors, professional advisers (provided such advisers are under
a professional duty of confidentiality) or rating agencies; or
(d) in connection with any legal proceedings.
The provisions of this Clause 21.3 shall supersede any undertakings with
respect to confidentiality previously given by any Finance Party in favour
of the Borrower or any Affiliate of the Borrower.
22. AMENDMENTS, WAIVERS AND CONSENTS
22.1 Banks
(a) Subject to paragraphs (b) and (c) below, any provision of this
Agreement or any of the other Finance Documents may be amended,
waived, varied or modified and all consents hereunder may be given
with the agreement of the Facility Agent, the Majority Banks, the
Borrower and the Guarantor.
(b) Any amendment, waiver, variation, modification or consent shall
require the unanimous agreement of all of the Banks if it results in:
(i) any change in the Commitment of any Bank;
(ii) any reduction in the Applicable Margin (save as expressly
contemplated by Clause 6.6 (Margin Adjustment));
(iii) any change in any Availability Period or any Repayment Date or
any other date for payment of any sum due, owing or payable to
any Bank;
52
(iv) any reduction in the amount or currency of any payment of
principal, interest, fees, commissions or any other amount
payable under the Finance Documents to any Bank;
(v) any amendment, variation or modification to this Clause
22.1(b), Clause 18 (The Facility Agent), Clause 20.1 (Pro-Rata
payments), Clause 20.3 (Set-Off), , Clause 19.2 (Assignments
and Transfers by the Borrower) or to the definition of
Majority Banks;
(vi) any amendment to Clause 2 of the Guarantee or any release of
the Guarantee.
(c) Any matter which by the terms of the Finance Documents as at the date
hereof is stated to be subject to the consent of all Banks shall not
be waived, amended, varied or modified save with the consent of all
the Banks.
22.2 No Implied Waivers
(a) No failure or delay by any Finance Party in exercising any right,
power or privilege under any of the Finance Documents will operate as
a waiver thereof nor will any single or partial exercise of any
right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
(b) The rights and remedies provided in the Finance Documents are
cumulative and not exclusive of any rights and remedies provided by
law and all such rights and remedies howsoever arising will, save
where expressly provided to the contrary therein, be available to the
Finance Parties severally.
(c) A waiver given or consent granted by the Finance Parties under the
Finance Documents will be effective only if given in writing and then
only in the instance and for the purpose for which it is given.
23. INDEMNITIES
23.1 Ongoing Expenses
The Borrower will pay and reimburse to the Facility Agent all reasonable
and documented costs and expenses (including legal fees and other out-of-
pocket expenses and any value added tax or other similar tax thereon to
the extent that in the reasonable opinion of the Facility Agent such value
added tax or similar tax is or will not be recoverable or creditable
against any obligation of the Facility Agent to account for value added
tax or similar tax) incurred by the Facility Agent in connection with:
53
(a) any variation, amendment, restatement, waiver, consent or suspension
of rights (or any proposal for any of the same) relating to any of
the Finance Documents which is requested by or on behalf of the
Borrower or which becomes necessary as a result of circumstances
affecting the Borrower (except insofar as the same relates to any
assignment or transfer by a Bank); and
(b) the investigation of any Event of Default or Potential Event of
Default.
23.2 Enforcement Expenses
The Borrower will on demand pay and reimburse to each Finance Party all
costs and expenses (including legal fees and other out of pocket expenses
and any value added tax or other similar tax thereon) incurred by such
Finance Party in connection with the preservation, enforcement or the
attempted preservation or enforcement of any of such Finance Party's
rights under any of the Finance Documents except to the extent that the
same are found in a final judgment by a court of competent jurisdiction to
have been incurred in an attempt to enforce rights and remedies that were
pursued by a Finance Party in bad faith and without any reasonable basis
in fact or law.
23.3 Stamp Duties etc
The Borrower will pay and on demand indemnify each Finance Party from and
against any liability for any stamp duty, documentary or registration
taxes or notarial fees which are or may hereafter become payable in
connection with the entry into, performance, execution or enforcement of
any of the Finance Documents (other than a Transfer Certificate) or to
which any of the Finance Documents (other than a Transfer Certificate) may
otherwise be or become subject or give rise. The Borrower will in addition
on demand indemnify each of the Finance Parties from and against any
losses or liabilities which they incur as a result of any delay or
omission by the Borrower to so pay any such duties, taxes or fees.
23.4 General Indemnity
The Borrower will on demand indemnify each of the Finance Parties against
any funding or other cost, loss, expense or liability (including, without
limitation, loss of profit) sustained or incurred by it as a result of:
(a) an Advance not being made by reason of non-fulfilment of any of the
conditions in Clauses 4.1 (Initial Conditions Precedent) or 4.2
(Additional Conditions Precedent);
54
(b) any sum payable by the Borrower under the Finance Documents not being
paid when due (but credit shall be given to the Borrower for any
interest paid when due);
(c) the occurrence of any Event of Default;
(d) the accelerated repayment of the Advances under Clause 17.12
(Cancellation and Repayment); or
(e) the receipt or recovery by any Finance Party (or the Facility Agent
on its behalf) of all or part of any Advance or overdue sum (whether
due to prepayment or otherwise) which is not on the last day of an
Interest Period relating to that Advance or overdue sum.
23.5 Currency Indemnity
Without prejudice to Clause 23.4 (General Indemnity), if:
(a) any amount payable by the Borrower under or in connection with any
Finance Document is received by any Finance Party (or by the Facility
Agent on behalf of any Finance Party) in a currency (the "Payment
Currency") other than that agreed in the relevant Finance Document
(the "Agreed Currency"), whether as a result of any judgment or order
or the enforcement thereof, the liquidation of the Borrower or
otherwise and the amount produced by converting the Payment Currency
so received into the Agreed Currency is less than the relevant amount
of the Agreed Currency; or
(b) any amount payable by the Borrower under or in connection with any
Finance Document has to be converted from the Agreed Currency into
another currency for the purpose of (i) making or filing a claim or
proof against the 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 Finance Document,
then the Borrower will, as an independent obligation, indemnify the
relevant Finance Party for the deficiency and any loss sustained as a
result. Any conversion required will be made at such prevailing rate of
exchange on such date and in such market as is determined by the relevant
Finance Party as being most appropriate for the conversion. The Borrower
will, in addition pay the costs of the conversion.
23.6 Waiver
The Borrower waives any right it may have in any jurisdiction to pay any
amount under any Finance Document in a currency other than that in which
it is expressed to be payable in the relevant Finance Document.
55
24. PARTIAL INVALIDITY
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect in any jurisdiction, that shall not affect
the legality, validity or enforceability of the remaining provisions in
that jurisdiction or that or any other provision in any other
jurisdiction.
25. GOVERNING LAW
This Agreement (and any dispute, controversy, proceedings or claims of
whatever nature arising out of or in any way relating to this Agreement)
shall be governed by and construed in all respects in accordance with
English law.
26. COUNTERPARTS
This Agreement may be executed in any number of counterparts and all such
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS whereof the parties hereto have caused this Agreement to be duly
executed on the date first written above.
56
SCHEDULE 1
THE BANKS
Banks Coal Commitment Capex Commitment
(Pound Sterling) (Pound Sterling)
1. Barclays Bank PLC
5 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Attn: Xxxxxxx Xxxxx 9,080,000 14,869,375
2. Credit Suisse First Xxxxxx
Xxxx Xxxxx Xxxxxx
Xxxxxx X00 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Attn: Xxxxxx Xxxxxxx - Project 9,080,000 14,869,375
Finance
3. Bank of Montreal
000 Xxxxxxxx
Xxxxx 0000
Xxxxxxx
Xxxxx 00000
X.X.X.
Tel: 000 000 000 0000
Fax: 000 000 000 0000
Attn: Xxxxx Xxxxxxx 9,080,000 14,866,250
4. The Governor and Company of the
Bank of Scotland
Corporate Banking Division
Xxxxxxx Xxxx Xxxxx
00 Xxxxxxxxxxx Xxxx
Xxxxxxxxx XX0 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Attn: Ian Garden/Xxxxxx Xxxxx 9,080,000 14,866,250
57
5. Bankgesellschaft Berlin AG, London
Branch
0 Xxxxx Xxxxx
Xxxxxxxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Attn: Xxxxxx Xxxx/Xxxxx Xxxxxxx 9,080,000 14,866,250
6. Bayerische Hypo-und Vereinsbank AG
00 Xxxxxxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Attn: Xxxx Xxxxxxx 9,080,000 14,866,250
7. Bayerische Landesbank Girozentrale-
London Branch
Bavaria House
00/00 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Attn: Xxx Xxxx/Xxxxx Xxxxxxxx 9,080,000 14,866,250
8. Credit Lyonnais
XX Xxx 00, Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Attn: Xxxxxx Xxxxx 9,080,000 14,866,250
58
9. Dexia Project and Public Finance
International Bank
00 Xxxxxx Xxxxxx
Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Attn: Xxxxxxxx Xxxxx 9,080,000 14,866,250
10. Dresdner Bank AG London Branch
PO Box 18075
Xxxxxxxxx Xxxxx
0 Xxxx Xxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Attn: Xxxxx Xxxx/Xxxxxx Xxxxxxxx 9,080,000 14,866,250
11. ING Bank N.V.
HE 0201 Power Finance
Xxxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Tel: 00 00 00 000 0000
Fax: 00 00 00 000 0000
Attn: Xxxxx xx Xxxxx/Han Wetzelaar 9,080,000 14,866,250
12. KBC Bank N.V. London Branch
0/xx/ Xxxxx
Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Attn: Xxxx Xxxxxx 9,080,000 14,866,250
59
13. The Royal Bank of Scotland plc.
Waterhouse Square
000-000 Xxxxxxx
Xxxxxx XX0X 0XX 9,080,000 14,866,250
Tel: 0000 000 0000
Fax: 0000 000 0000
Attn: Xxxxx XxXxxxx
14. Societe Generale London Branch
00 Xxxxx Xxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax 0000 000 0000
Attn: Xxxxxx Xxxxxx 9,080,000 14,866,250
15. The Toronto-Dominion Bank
Triton Court
00-00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Attn: Xxxxxxx Xxxxxx 9,080,000 14,866,250
--------------- ---------------
136,200,000 223,000,000
60
SCHEDULE 2
DOCUMENTARY CONDITIONS PRECEDENT
1. Documentation of Obligors
(a) Copies, certified to be true, complete and up to date copies by a
director or company secretary of each Obligor, of the memorandum and
articles of association or other constitutional documents of each
Obligor.
(b) Copies, certified to be true, complete and up to date copies by a
director or company secretary of each Obligor, of resolutions of the
board of directors of each Obligor approving the execution, delivery
and performance of each of the Finance Documents to which that Obligor
is a party and the terms thereof.
(c) A certificate of a director or company secretary of each Obligor
setting out the names and signatures of the persons authorised to sign
on behalf of that Obligor each of the Finance Documents to which it is
a party and any other document to be delivered pursuant thereto.
2. Guarantee
A duly executed original of the Guarantee.
3. Fee Letters
A duly executed original of the Facility Agent's Fee Letter and the
Arrangers' Fee Letter.
4. Legal Opinions
Legal opinions from:
(a) Shearman & Sterling, English legal advisers to the Banks; and
(b) The Guarantor's in-house counsel and Xxxxxx Xxxxx and Boeckius, legal
advisers to the Guarantor.
5. Accounts
The audited accounts of the Guarantor, certified as being true, complete
and up to date by a director or company secretary of the Guarantor.
61
6. Senior Creditors' Security Trustee
A certificate of the Senior Creditors' Security Trustee setting out the
names and signatures of each of the persons authorised to sign Letter of
Credit Requests and any other related documents on behalf of the Senior
Creditors' Security Trustee.
7. Project Company's capital expenditure programme
Provision of the Project Company's capital expenditure programme.
62
SCHEDULE 3
Form of Request
To: [ ]
(as Facility Agent for the Banks)
Attention:
Date:
From: EME FINANCE UK LIMITED
Dear Sirs,
Coal and Capex Facility Agreement dated [ ] (the "Facility Agreement")
We request [the issue of the [Coal Letter of Credit]/[Capex Letter of Credit] in
the form of Schedule 6 (Letters of Credit) of the Facility Agreement]/[an
Advance] as follows:
[Letter of Credit]
1. Amount:
2. Name of Beneficiary: Edison First Power Limited
3. Issue Date:
4. Termination date:
[Advance]
1. Amount:
2. Drawdown Date:
3. Interest Period:
Such Advance should be paid to [give details of Project Company's revenues
account].
We confirm that:
(i) the representations and warranties made in Clause 14 (Representations and
Warranties) of the Facility Agreement stipulated as being made or repeated
on the date hereof and on the relevant [Issue Date]/[Drawdown Date] are
true and accurate as if made with respect to the facts and circumstances
existing on such date; and
(ii) no Event of Default or Potential Event of Default has occurred and is
continuing or will occur as a result of the [issue of the Letter of
Credit]/[proposed Advance] being made.
63
We attach the documents required by Clause 5.3 (Accompanying Documents) of the
Facility Agreement.
Terms defined in the Facility Agreement shall have the same meanings when used
in this request.
...................
[Authorised Signatory]
for and on behalf of
EME Finance UK Limited
64
SCHEDULE 4
Additional Costs Rate
1. The Additional Costs Rate is in addition to the interest rate to compensate
Banks for the cost of compliance with the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions).
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Facility Agent shall calculate, as a percentage rate, a
rate (the "Additional Costs Rate") for each Bank, in accordance with the
formulae set out below. The Additional Costs Rate will be calculated by the
Facility Agent as a weighted average of the Banks' additional costs rates
(weighted in proportion to the percentage participation of each Bank in the
relevant Advance) and will be expressed as a percentage rate per annum.
3. The additional cost rate for each Bank will be calculated by the Facility
Agent as follows:
AB + C(B-D) + E x 0.01 per cent. per annum
----------------------
100 - (A + C)
Where:
A is the percentage of eligible liabilities (assuming these to be in
excess of any stated minimum) which that Bank is from time to time
required to maintain as an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements.
B is the percentage rate of interest (excluding the Applicable Margin
and the Additional Costs Rate) payable for the relevant Interest
Period on the Advance.
C is the percentage (if any) of eligible liabilities which the Bank is
required from time to time to maintain as interest bearing special
deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England to
the Facility Agent on interest bearing special deposits.
E is the rate of charge payable by that Bank to the Financial Services
Authority pursuant to the Fees Regulations (but, for this purpose,
ignoring any minimum fee required pursuant to the Fees Regulations)
and expressed in pounds per (Pound Sterling)1,000,000 of the Fee Base
of that Bank.
4. For the purposes of this Schedule:
(a) "eligible liabilities" and "special deposits" have the meanings given
to them from time to time under or pursuant to the Bank of England Act
1998 (as may be appropriate) by the Bank of England;
65
(b) "Fee Regulations" means the Banking Supervision (Fees) Regulations
1998 or such other law or regulation as may be in force from time to
time in respect of the payment of fees for banking supervision; and
(c) "Fee Base" has the meaning given to it, and will be calculated in
accordance with, the Fees Regulations.
5. In application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent, will be included in the formula
as 5 and not as 0.05). A negative result obtained by subtracting D from B
shall be taken as zero. The resulting figures shall be rounded to four
decimal places.
6. Each Bank shall supply any information required by the Facility Agent for
the purpose of calculating the above formulae. In particular, but without
limitation, each Bank shall supply the following information in writing on
or prior to the date on which it becomes a Bank:
(a) its jurisdiction of incorporation and the jurisdiction of its Facility
Office; and
(b) such other information that the Agent may reasonably require for such
purpose.
Each Bank shall promptly notify the Agent in writing of any change to the
information provided by it pursuant to this paragraph.
7. The percentages or rates of charge of each Bank for the purpose of A, C and
E above shall be determined by the Facility Agent based upon the
information supplied to it pursuant to paragraph 6 above and on the
assumption that, unless a Bank notifies the Facility Agent to the contrary,
each Bank's obligations in relation to cash ratio deposits, special
deposits and the Fee Regulations are the same as those of a typical bank
from its jurisdiction of incorporation with a Lending Office in the same
jurisdiction as its Lending Office.
The Facility Agent shall have no liability to any person if such
determination results in an additional costs rate which over or under
compensates any Bank and shall be entitled to assume that the information
provided by any Bank pursuant to paragraph 6 above is true and correct in
all respects.
8. The Facility Agent shall distribute the additional amounts received as a
result of the Additional Costs Rate to the Banks on the basis of the
additional costs rate for each Bank, in accordance with the above formulae
and based on the information provided by each Bank pursuant to paragraph 6
above.
9. Any determination by the Facility Agent pursuant to this Schedule in
relation to a formula, the Additional Costs Rate or any amount payable to a
Bank shall, in the absence of manifest error, be conclusive and binding on
all of the parties to this Agreement.
10. The Facility Agent may from time to time, after consultation with the
Borrower and the Banks, determine and notify to all parties any amendments
which are required to be made to any of the formulae set out above in order
to comply with any change in law, regulation or any requirements from time
to time imposed by the Bank of England or the Financial Services Authority
(or, in
66
either case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all the parties to this Agreement.
67
SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
To: [ ] as Facility Agent
and
Edison First Power Limited
Xxxxxxxxx Xxxxx, Xxxxxxxx Xxxxxx
Xxxxxx
X0X 0XX
as beneficiary under the Coal Letter of Credit and Capex Letter of Credit
From: [Existing Bank] and [New Bank] Date: [ ]
EME Finance UK Limited - Coal and Capex Facility Agreement dated [ ], 1999
(the "Facility Agreement")
We refer to Clause 19.4 (Procedure for Transfer) of the Facility Agreement and
to the Coal Letter of Credit and the Capex Letter of Credit. Terms defined in
the Facility Agreement shall have the same meaning when used in this Transfer
Certificate.
1. We [ ] (the "Existing Bank") and [ ] (the "New Bank")
agree to the Existing Bank and the New Bank transferring all the Existing
Bank's rights and obligations referred to in the Schedule in accordance
with Clause 19.4 (Procedure for Transfer) of the Facility Agreement and
with the terms of the Coal Letter of Credit and the Capex Letter of Credit.
2. The specified date for the purposes of Clause 19.4 (a) and (c) (Procedure
for Transfer) of the Facility Agreement and paragraph 8 of each of the Coal
Letter of Credit and the Capex Letter of Credit is [date of transfer].
3. The Facility Office and address for notices of the New Bank for the
purposes of Clause 21.1 (Notices) of the Facility Agreement are set out in
the Schedule.
4. This Transfer Certificate is governed by English law.
68
THE SCHEDULE
Rights and obligations to be transferred
[Details of the rights and obligations of the Existing Bank to be transferred
under the Coal Facility and Coal Letter of Credit and Capex Facility and Capex
Letter of Credit.]
[New Bank]
[Lending Office] [Address for notices]
[Existing Bank] [New Bank] [Facility Agent]
By: By: By:
Date: Date: Date:
Payment Instructions:
Administrative details:
69
SCHEDULE 6
FORM OF LETTERS OF CREDIT
To: Edison First Power Limited
Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxx
Xxxxxx
X0X 0XX
Attention: [ ]
[ ] 1999
Dear Sirs
1. The Banks listed in Schedule A (the "Original Banks") hereby issue an
irrevocable letter of credit in your favour at the request of EME Finance UK
Limited for the aggregate amount equal to the L/C Amount (as defined below)
expiring at [ ] p.m. on [ ].
2. This Letter of Credit is given in connection with a facility agreement dated
[ ] 1999 and made between EME Finance UK Limited as Borrower,
Barclays Capital and Credit Suisse First Boston as Arrangers, the Banks as
defined therein and Barclays Bank PLC as facility agent (the "Facility
Agent") (the "Facility Agreement"). In this Letter of Credit:
"Advance" shall mean the principal amount of each advance made under the
[Coal]/[Capex] Facility (but excluding any Advance deemed made as a
consequence of a drawing being made under this Letter of Credit) notified by
the Facility Agent to you as having been made;
"Banks" means the Original Banks and each New Bank (as defined in paragraph
7) which becomes a party to this Letter of Credit;
"Capex Facility" means the (Pound Sterling)223,000,000 loan and letter of
credit facility made available by the Banks pursuant to the Facility
Agreement;
"Coal Facility" means the (Pound Sterling)136,200,000 loan and letter of
credit facility made available by the Banks pursuant to the Facility
Agreement;
"Commitment" means:
(a) in relation to an Original Bank, the amount set against the name of
that Bank in Schedule A under the heading "Commitment" and the amount
of any other Bank's Commitment acquired by it; and
70
(b) in relation to a Bank which becomes a Bank after the date of this
Letter of Credit, the amount of any other Bank's Commitment acquired
by it under paragraph 7 hereof,
to the extent not cancelled, reduced or transferred under this Letter of
Credit;
"L/C Amount" means, at any time, (Pound Sterling)[223,000,000]/
(Pound Sterling)[136,200,000] less the aggregate of:
(a) all drawings under this Letter of Credit;
(b) Advances; and
(c) Reductions.
"Reduction" means the amount of each reduction of the L/C Amount by you
pursuant to paragraph 10 below;
"Senior Creditors' Security Trustee" means Barclays Bank PLC in its
capacity as security trustee under a secured creditors' security trust and
intercreditor deed dated [ ];
3. A drawing may be requested by you, and will be paid by us, upon
presentation of a request (an "L/C Request") to the Facility Agent in the
form of Schedule B. If the L/C Request is presented by 10.00 a.m. London
time on a London business day then payment will be made on the date of
presentation in immediately available funds to your account with Barclays
Bank PLC number [ ]. Any L/C Request presented after 10.00 a.m. London
time on a London business day will be treated as having been presented by
10.00 a.m. London time on the following London business day. The amount
each Bank is obliged to make available to you, through the Facility Agent,
on presentation of an L/C Request, is the proportion of the amount
requested which its Commitment bears to the total of the Commitments. The
maximum amount which may be drawn by you at any time under this Letter of
Credit shall be the L/C Amount at that time.
4. All payments which fall to be made by the Banks hereunder will be made by
the Banks free and clear of and without deduction for, or on account of,
any set-off or counterclaim.
5. This Letter of Credit is signed by the Facility Agent solely as agent for
each of the Banks and the Facility Agent makes no representation or
warranty, express or implied, concerning, and accepts no responsibility for
the legality, validity, effectiveness, adequacy or enforceability of, this
Letter of Credit or concerning its power to enter into this Letter of
Credit on behalf of any Bank and, accordingly, it will not be held liable
for any cost, loss or expense sustained or incurred by you as a result of
any present or future total or partial invalidity, illegality or
unenforceability affecting this Letter of Credit or the failure by any Bank
to be bound hereby.
6. You may assign or transfer all or any of your rights, benefits and
obligations hereunder to the Senior Creditors' Security Trustee.
71
7. (a) A Bank (the "Existing Bank") may at any time transfer any of its
rights and obligations under this Letter of Credit to another bank or
financial institution (the "New Bank"). An Existing Bank shall
transfer its rights and obligations to a New Bank where the credit
rating of the Existing Bank has fallen below A- as rated by Standard &
Poors Rating Services ("Standard & Poors") or A3 by Xxxxx'x Investor
Services Inc. ("Moody's") unless the Existing Bank is able to provide
cash collateral for all its obligations under this Letter of Credit to
your satisfaction. Your prior consent is required for any such
transfer (unless such transfer is to an affiliate of such Existing
Bank which has a credit rating of A- or above as rated by Standard &
Poors or A3 or above as rated by Moody's or to a New Bank which is
already a Bank), but will not be unreasonably withheld or delayed
where such New Bank has a credit rating of A- or above as rated by
Standard & Poors or A3 or above as rated by Moody's.
(b) A transfer is effected if the Existing Bank and the New Bank deliver
to you, with a copy to the Facility Agent, a duly completed
certificate, substantially in the form of Schedule C (a "Transfer
Certificate"). Such delivery shall take place at least 5 Business Days
prior to the date specified therein.
(c) Each party to this Letter of Credit (other than the Existing Bank and
the New Bank) irrevocably authorises the Facility Agent to execute any
duly completed Transfer Certificate on its behalf.
(d) To the extent that they are expressed to be the subject of the
transfer in the Transfer Certificate:
(i) the Existing Bank and the other parties to this Letter of
Credit (the "existing Parties") will be released from their
obligations to each other (the "discharged obligations");
(ii) the New Bank and the existing parties to this Letter of Credit
will assume obligations towards each other which differ from
the discharged obligations only insofar as they are owed to or
assumed by the New Bank instead of the Existing Bank;
(iii) the rights of the Existing Bank against the existing Parties
and vice versa (the "discharged rights") will be cancelled; and
(iv) the New Bank and the existing Parties will acquire rights
against each other which differ from the discharged rights only
insofar as they are exerciseable by or against the New Bank
instead of the Existing Bank,
on the date specified in the Transfer Certificate.
8. This Letter of Credit shall be governed by, and construed in accordance
with, English law.
72
9. The rights and obligations of the Banks under this Letter of Credit are
several. Failure of a Bank to observe and perform its obligations under
this Letter of Credit shall not result in any other Bank or the Facility
Agent incurring any liability whatsoever.
10. You may, at any time, reduce the L/C Amount by written notice to us which
has been countersigned by the Senior Creditors' Security Trustee.
11. This Letter of Credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500.
-------------------------------------
Barclays Bank PLC as Facility Agent
for and on behalf of the Original Banks
73
Schedule A
THE BANKS
Bank Commitment
(Pound Sterling)
Total [(Pound Sterling)136,200,000] / [(Pound Sterling)223,000,000]
74
Schedule B
Letter of Credit Request
To: [Barclays Bank PLC]
[Address]
[Date]
Dear Sirs
[Coal]/[Capex] Letter of Credit dated
------------------------------------------
Please be advised that we wish to make a drawing under the above mentioned
Letter of Credit as follows:
(a) Amount:
(b) Date of drawing:
(c) Account to which payment should be made:
----------------------------------------
[Authorised Signatory]
for and on behalf of
Edison First Power Limited
[AND/OR]
[Senior Creditors' Security Trustee]
75
Schedule C
FORM OF TRANSFER CERTIFICATE
To: [ ] as Facility Agent
and
Edison First Power Limited
Xxxxxxxxx Xxxxx, Xxxxxxxx Xxxxxx
Xxxxxx
X0X 0XX
as beneficiary under the Coal Letter of Credit and Capex Letter of Credit
From: [Existing Bank] and [New Bank] Date: [ ]
EME Finance UK Limited - Coal and Capex Facility Agreement dated [ ], 1999
(the "Facility Agreement")
We refer to Clause 19.4 (Procedure for Transfers) of the Facility Agreement and
to paragraph 7 of the Coal Letter of Credit and the Capex Letter of Credit.
Terms defined in the Facility Agreement shall have the same meanings when used
in this Transfer Certificate.
1. We [ ] (the "Existing Bank") and [ ] (the "New Bank")
agree to the Existing Bank and the New Bank transferring all the Existing
Bank's rights and obligations referred to in the Schedule in accordance
with Clause 19.4 (Procedure for Transfer) of the Facility Agreement and
paragraph 7 of the Coal Letter of Credit and the Capex Letter of Credit.
2. The specified date for the purposes of Clause 19.4 (a) and (c) (Procedure
for Transfer) of the Facility Agreement and paragraph 7 of each of the Coal
Letter of Credit and the Capex Letter of Credit is [date of transfer].
3. The Facility Office and address for notices of the New Bank for the
purposes of Clause 21.1 (Notices) of the Facility Agreement are set out in
the Schedule.
4. This Transfer Certificate is governed by English law.
76
THE SCHEDULE
Rights and obligations to be transferred
[Details of the rights and obligations of the Existing Bank to be transferred
under the Coal Facility and Capex Facility.]
Coal Letter of Credit and Capex Letter of Credit: Amount of Commitment
transferred: (Pound Sterling)[ ]
[New Bank]
[Lending Office] [Address for notices]
[Existing Bank] [New Bank] [Facility Agent]
By: By: By:
Date: Date: Date:
Payment Instructions:
Administrative details:
77
The Borrower
EME FINANCE UK LIMITED
By: S.G. BRETT
Name:
Title:
The Arrangers
BARCLAYS CAPITAL
By: XXXX XXXX
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By: XXXXX XXXXXX and XXX XXXXXXXX
Name:
Title:
The Original Banks
BARCLAYS BANK PLC
By: XXXX XXXX and XXXXXX XXXX
Name:
Title:
78
CREDIT SUISSE FIRST BOSTON
By: XXXXX XXXXXX and XXX MULLLIGAN
Name:
Title:
BANK OF MONTREAL
By: XXXXXXXX XXXXXXXX
Name:
Title:
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By: XXX XXXXXXXX GARDEN
Name:
Title:
BANKGESELLSCHAFT BERLIN A.G., LONDON BRANCH
By: H.VAN WYK and XXXXXX XXXX
Name:
Title:
BAYERISCHE HYPO-UND VEREINSBANK AG
By: XXXX XXXXXXX and XXXX XXXXXXX
Name:
Title:
00
XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXX XXXXXX BRANCH
By: XXXXXXX XXXX and XXXXXXX XXXXXX
Name:
Title:
CREDIT LYONNAIS
By: XXXXXXXX XXXXXXX
Name:
Title:
DEXIA PROJECT AND PUBLIC FINANCE INTERNATIONAL BANK
By: NICOLAS SOUCHE
Name:
Title:
DRESDNER BANK AG LONDON BRANCH
By: W.A. PEDDER By: DEXTER X.X. XXXXXXXX
Name: Name:
Title: Title:
ING BANK N.V., LONDON BRANCH
By: X.X. XXXXXX and P.H.M. STAAL
Name:
Title:
80
KBC BANK N.V., LONDON BRANCH
By: XXXX XXXXXX and XXXXXXX XXXXX
Name:
Title:
THE ROYAL BANK OF SCOTLAND plc.
By: RAJA X. XXXXXXX
Name:
Title:
SOCIITI GINIRALE, LONDON BRANCH
By: XXXXX XXXXXX
Name:
Title:
THE TORONTO-DOMINION BANK
By: XXXXXX XXXXXXX
Name:
Title:
The Agent
BARCLAYS BANK PLC
By: XXXXXX XXXX
Name:
Title:
81
