EXHIBIT 4(KKK)
19 JANUARY 2001
TXU EUROPE MERCHANT PROPERTIES LIMITED
(as Landlord)
TXU EUROPE MERCHANT GENERATION LIMITED
(as Tenant)
EASTERN GROUP FINANCE LIMITED
(as Trustee)
TXU EUROPE GROUP plc
(as Guarantor)
TXU EUROPE POWER LIMITED
(as Guarantor)
EASTERN ELECTRICITY plc
BARCLAYS BANK PLC
SOCIETE GENERALS
THE ROYAL BANK OF SCOTLAND plc
THE TORONTO-DOMINION BANK
UBS AG
WESTDEUTSCHE LANDESBANK GIROZENTRALE
BANK OF AMERICA INTERNATIONAL LIMITED
(as Banks)
BARCLAYS BANK PLC
(as Agent)
-------------------------------
SUPPLEMENTAL DEED
--------------------------------
TABLE OF CONTENTS
CLAUSE PAGE
1. INTERPRETATION............................................................2
Definitions...............................................................2
2. GENERAL...................................................................2
3. REPRESENTATIONS AND WARRANTIES............................................3
4. PREPAYMENT, REASSIGNMENT AND RELEASE......................................3
Rent Prepayment to Banks..................................................3
Reassignment..............................................................3
Release...................................................................4
5. INTERACTION WITH ASSIGNMENT AND GUARANTEE.................................4
6. INDEMNITY.................................................................5
7. DEEMED INCLUSION OF PROVISIONS............................................5
8. CONTINUATION OF TRANSACTION DOCUMENTS.....................................5
9. CUSTODY...................................................................5
10. COUNTERPARTS..............................................................5
11. GOVERNING LAW.............................................................5
SCHEDULE I.........................................................................6
Part I....................................................................6
Part II...................................................................7
Bank Account Details for Banks............................................7
THIS DEED is made on 19th January 2001
BETWEEN:
TXU EUROPE MERCHANT PROPERTIES LIMITED (formerly Eastern Merchant Properties
Limited) (registered in England and Wales No. 3181383) whose registered office
is at Wherstead Park, Wherstead, Ipswich, Suffolk IP9 2AQ (the Landlord);
TXU EUROPE MERCHANT GENERATION LIMITED (formerly Eastern Merchant Generation
Limited) (registered in England and Wales No. 03116225) whose registered office
is at Wherstead Park, Wherstead, Ipswich, Suffolk IP9 2AQ (the Tenant);
EASTERN GROUP FINANCE LIMITED (registered in England and Wales No. 2937764)
whose registered office is at Wherstead Park, Wherstead, Ipswich, Suffolk IP9
2AQ (the Trustee);
TXU EUROPE GROUP plc (formerly Eastern Group plc) (registered in England and
Wales No. 3247622) whose registered office is at Crown House, 00 Xxxxxxx, Xxxxxx
XX0X 0XX (a Guarantor);
TXU EUROPE POWER LIMITED (formerly Eastern Generation Limited) (registered in
England and Wales No. 2353756) whose registered office is at Wherstead Park,
Wherstead, Ipswvich, Suffolk IP9 2AQ (a Guarantor);
EASTERN ELECTRICITY plc (registered in England Wales No. 2366906) whose
registered office is at Wherstead Park, Wherstead, Ipswich, Suffolk IP9 2AQ;
THE BANK listed in Schedule 1, Part I as Banks (together the Banks);
BARCLAYS BANK PLC (registered in England and Wales No. 1026167) whose registered
office is at 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX as agent (the Agent),
WHEREAS:
(A) This Deed is supplemental to the Finance Documents.
(B) The Tenant wishes to prepay all outstanding Rents on Friday, 19 January
2001 and the Banks and the Agent have agreed, in consideration of such
prepayment to release the Tenant, the Landlord and the Guarantors from
certain of their obligations under the Finance Documents subject to the
conditions contained in this Deed.
Interpretation
Definitions
1.1 In this Deed (including the Recitals), unless the context otherwise
requires, the expressions defined in the Assignment or the Guarantee have the
some meanings and in addition, the following expressions have the following
meanings:
Assignment means the Deed of Assignment of Rents dated 28 October 1996 between
the Landlord, the Trustee, certain of the Banks and the Agent as consented to by
the Tenant and as amended and supplemented prior to the date hereof;
Custodian means Barclays Private Bank and Trust Limited;
Custody Deed means the custody deed dated 28 October 1996 between the Landlord,
the Trustee, certain of the Banks and the Custodian;
Effective Date means the later of (a) Friday, 19 January 2001 or such other date
as the parties may agree in writing and (b) the date on which the Banks receive
all amounts due and payable under this Deed;
Entitlement means in relation to any Bank, the portion of the Prepayment Amount
to which that Bank is entitled; expressed as a percentage and shown in the
column headed "Entitlement" opposite the relevant Bank's name in Part I of
Schedule 1;
Finance Documents means the Assignment and the Guarantee and Finance Document
means either of them;
Guarantee means the Deed of Guarantee and Indemnity dated 28 October 1996
between the Guarantors, the Agent and certain of the Banks, inter alia, as
amended and supplemented prior to the date hereof;
Prepayment means the prepayment of the Aggregate Outstanding Rents and certain
other amounts by the Tenant to the Agent pursuant to clause 4.1;
Prepayment Amount means(pound)191,949,004.56;
Waiver Fee Amount means the Waiver Fee due and payable (together with applicable
VAT) on the Effective Date in accordance with the Waiver Fee Letter;
Waiver Fee Letter means the letter dated 3rd January 2001 from the Agent to
certain of the parties hereto, inter alia.
1.2 The construction provisions of clauses 1.2 and 1.3 of the Guarantee shall
be deemed to be incorporated herein and shall apply to the terms of this Deed.
GENERAL
2.(a) This Deed is supplemental to the Finance Documents, and each Finance
Document shall be read and construed subject to this Deed.
Page 2
(b) This Deed is also supplemental to the Transaction Documents and references
to the Transaction Documents shall be deemed to include a reference to this
Deed.
REPRESENTATIONS AND WARRANTIES
3. Each party to this Deed hereby represents and warrants to each other on the
date hereof:
(a) it is a company duly incorporated and validly existing under the laws of
its jurisdiction of incorporation;
(b) it has power to enter into this Deed and to exercise its rights and perform
its obligations hereunder, and all corporate or other action required to
authorise its execution of this Deed and its performance of its obligations
hereunder has been duly taken;
(c) its execution of this Deed and its exercise of its rights and performance
of its obligations hereunder will not contravene any provision of law,
statute, rule or regulation to which it is subject, or violate any
provision of its Memorandum or Articles of Association or any agreement or
other instrument by which it may be bound in any case where such
contravention or violation could reasonably be expected to have a material
adverse effect on its ability to perform its obligations under this Deed or
the binding nature of such obligations; and
(d) all governmental or other authorisations, approvals or consents (if any)
required by it for the execution and delivery by it of this Deed, for the
exercise by it of its rights and the observance and performance by it of
all of its obligations and duties hereunder have been obtained and are in
full force and effect.
PREPAYMENT, REASSIGNMENT AND RELEASE
Rent Prepayment to Banks
4.1 Notwithstanding anything to the contrary in the Finance Documents, on 19
January 2001 the Tenant shall pay to the Banks in same day funds the
Prepayment Amount and the Waiver Fee Amount.
The Prepayment Amount shall be divided amongst the Banks in accordance with each
Banks respective Entitlement with the amounts the Tenant shall pay to each Bank
being shown in the column headed "Prepayment Amount Portion" in Part I of
Schedule 1. Such payment shall be made to the Banks for the credit of their
respective bank accounts as set out in Part II of Schedule 1.
Reassignment
4.2 In consideration of, and following receipt in full by the Banks of the
Prepayment Amount and the Waiver Fee Amount, the Trustee hereby reassigns with
full title guarantee to the Landlord all the Trustee's right, title and interest
in and to the Rents and in and to the benefit of the Tenant's covenant in each
Lease to pay the Rents falling due on the First Rent Day and thereafter during
the Assignment Period in accordance with such Lease and the right to demand,
accelerate, sue for, recover and give receipt for the Rents and any amount of
Rents received by the Landlord, including, without limitation, pursuant to the
right to demand,
Page 3
accelerate, sue for and recover the Rents, as assigned to the Trustee pursuant
to the Assignment.
Release
4.3 In consideration of the Prepayment and subject to receipt in full by the
Banks of the Prepayment Amount, the Waiver Fee Amount and all other amounts due
under the Finance Documents on the Effective Date (if any), the Banks with
effect from the Effective Date, release and discharge the Tenant, the Trustee,
the Landlord anal the Guarantors from their obligation to pay the Rents to each
Bank.
Interaction with Assignment and Guarantee
5.1 Upon irrevocable payment in full of any amount expressed to be payable
under Clause 4, each Bank agrees that with effect from the Effective Date:
(a) the representations and warranties contained in Clause 3.1 of the
Guarantee shall cease to apply (but without prejudice to any claim arising
in respect of such representations or warranties given on or prior to the
Effective Date);
(b) the covenants contained in sub-Clauses 4.1 (a) to (i), and (k) to (y),
Clauses 4.3, 4.4 and 4.5, 5(b) and (c) and the provisions of Clauses 16.1
(save in relation to any claim arising thereunder as a result of the
circumstances or the occurrence of any of the events specified in Clause
12) 16.2, 16.3, 16.4, 17.1, 17.2, 18.1 and 20, and 21.2 and 21.3 (save in
relation to any claim arising under Xxxxxx 21.2(i) and 21.3(i) in respect
of the period prior to the Effective Date) of the Guarantee shall cease to
apply;
(c) the covenants contained in Clause 4.1(z) and Clause 5(a) of the Guarantee
shall be amended to read as follows:
"4.1(z) procures that there is maintained in accordance with good
industry practice third party liability insurance in respect of
the Properties to the reasonable satisfaction of the Agent
(acting in accordance with the instructions of an Instructing
Group)."
"5(a) to procure that there is maintained in accordance with good
industry practice third party liability insurance in respect of
the Properties to the reasonable satisfaction of the Agent
(acting in accordance with the instructions of an Instructing
Group)";
(d) the representations and warranties contained in Clauses 7 and 8 of the
Assignment shall cease to apply (but without prejudice to any claim
arising in respect of such representations and warranties given on or
prior to the Effective Date); and
(e) the covenants contained in Clauses 5 and 6 of the Assignment shall cease
to apply in respect of the Rents.
5.2 The parties to this Deed agree that Clause 2.5 of the Assignment shall be
disapplied in relation to the receipt by the Banks of the Prepayment Amount and
the Waiver Fee Amount on the Effective Date.
Page 4
Indemnity
6. Each of the Guarantors as principal obligor hereby jointly and severally
agrees irrevocably and unconditionally to indemnify the Agent and each Bank and
each of their Affiliates in full on receipt of a demand served on each of them
in writing, on an after tax basis against all liability, losses, claims, costs,
charges and expenses which are suffered or properly incurred by it or a Relevant
Participant or any of their Affiliates (a loss) and any costs, charges and
expenses to which it or they may be subject or which it or they may properly
incur (a charge) as a consequence of the operation of, or the transactions
contemplated by, this Deed including, without limitation, any loss or charge on
account of funds borrowed, contracted for, allocated or utilised to fund or
hedge any amount payable under any Finance Document or Participation Agreement.
A certificate prepared in good faith by the Agent of amounts payable by the
Guarantor to the Banks under this clause shall be conclusive in the absence of
manifest error.
Deemed Inclusion of Provisions
7. The provisions of Clauses 21.4, 21.6, 21.7, 21.8, 21.9, 21.10, 21.11, 23,
25, 29(iv) and (vi), 30, 31, 32, 33, 35, 36, 37, 40 and 41 of the Guarantee
shall apply to this Deed as if set out in full (mutatis mutandis) but as if
references in those provisions to any Transaction Document were references to
this Deed.
Continuation of Transaction Documents
8. Except as expressly provided is this Deed, the Guarantee and the
Assignment shall continue in full force and effect.
Custody
9. Each of the parties to this Deed agree that this Deed shall constitute a
Custody Document as defined in the Custody Deed and shall be held by the
Custodian in accordance with the terms of the Custody Deed, and the provisions
of the Custody Deed shall apply thereto mutatis mutandis.
Counterparts
10. This Deed may be executed in any number of counterparts each of which when
executed and delivered is an original, but all the counterparts together shall
constitute the same agreement.
Governing Law
11. This Deed is governed by and shall be construed in accordance with English
law.
IN WITNESS whereof this Deed has been duly executed as a deed and delivered on
the date stated at the beginning of the Deed.
Page 5
SCHEDULE I
Part I
Entitlement Prepayment
The Banks (approximate) Amount Portion
Barclays Bank PLC 8.04895007% (pound)15,449,879.53
SocieteGenerale 16.66666667% (pound)31,991,500.76
The Royal Bank of Scotland plc 16.66666667% (pound)31,991,500.76
The Toronto-Dominion Bank 16.00000000% (pound)31,991,500.76
UBS AG 16.66666667% (pound)31,991,500.76
Westdeutsche Landesbank Girozentrale 16.66666667% (pound)31,991,500.76
Bank of America International Limited 8.61771660% (pound)16,541,621.23
Page 6
Part II
Bank Account Details for Banks
-------------------------------------- ----------------------------------------
Banks Account Details
---- ---------------
-------------------------------------------------------------------------------
Barclays Bank PLC A/C No.: 2808 8306
Sort Code : 20-00-34
Bank: Barclays Bank PLC
-------------------------------------------------------------------------------
SocieteGenerale A/C No.: 9029 1382
Sort Code : 20-00-00
Bank: Barclays Bank PLC
-------------------------------------------------------------------------------
The Royal Bank of Scotland plc A/C No.: 8002 8398
Sort Code : 20-00-00
Bank: Barclays Bank PLC
-------------------------------------------------------------------------------
The Toronto-Dominion Bank A/C No.: 8096 5383
Sort Code : 20-00-00
Bank: Barclays Bank PLC
-------------------------------------------------------------------------------
UBS AG A/C No.: 3093 5387
Sort Code : 20-00-00
Bank: Barclays Bank PLC
-------------------------------------------------------------------------------
Westdeutsche Landesbank A/C No.: 1083 3487
Girozentrale Sort Code : 20-00-00
Bank: Barclays Bank PLC
-------------------------------------------------------------------------------
Bank of America International A/C No.: 8069 5394
Limited Sort Code : 20-00-00
Bank: Barclays Bank PLC
-------------------------------------------------------------------------------
Page 7
SIGNED as a DEED by
/s/ X. Xxxxx
-------------------------------------------
As attorney for TXU )
EUROPE MERCHANT PROPERTIES ) /s/ X. Xxxxx
LIMITED in the presence of: )
Witness: /s/ X. Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Occupation: Corporate Manager
Address: BARCLAYS PRIVATE BANK & TRUST LIMITED
P.O. Box No. 00, 00-00 Xxxxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands
SIGNED as a DEED by
/s/ X. Xxxxx
------------------------------------------
As attorney for TXU )
EUROPE MERCHANT GENERATIONS ) /s/ X. Xxxxx
LIMITED in the presence of: )
Witness: /s/ X. Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Occupation: Corporate Manager
Address: BARCLAYS PRIVATE BANK & TRUST LIMITED
P.O. Box No. 00, 00-00 Xxxxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands
SIGNED as a DEED by
/s/ X. Xxxxx
------------------------------------------
As attorney for EASTERN )
GROUP FINANCE LIMITED ) /s/ X. Xxxxx
in the presence of: )
Witness: /s/ X. Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Occupation: Corporate Manager
Address: BARCLAYS PRIVATE BANK & TRUST LIMITED
P.O. Box No. 00, 00-00 Xxxxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands
Page 8
SIGNED as a DEED by
/s/ X. Xxxxx
--------------------------------------
As attorney for TXU )
EUROPE GROUP PLC ) /s/ X. Xxxxx
in the presence of: )
Witness: /s/ X. Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Occupation: Corporate Manager
Address: BARCLAYS PRIVATE BANK & TRUST LIMITED
P.O. Box No. 00, 00-00 Xxxxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands
SIGNED as a DEED by
/s/ X. Xxxxx
--------------------------------------
As attorney for TXU )
EUROPE POWER LIMITED ) /s/ X. Xxxxx
in the presence of: )
Witness: /s/ X. Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Occupation: Corporate Manager
Address: BARCLAYS PRIVATE BANK & TRUST LIMITED
P.O. Box No. 00, 00-00 Xxxxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands
Page 9
SIGNED as a DEED by
/s/ X. Xxxxx
--------------------------------------
As attorney for EASTERN )
ELECTRICITY plc ) /s/ X. Xxxxx
in the presence of: )
Witness: /s/ X. Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Occupation: Corporate Manager
Address: BARCLAYS PRIVATE BANK & TRUST LIMITED
P.O. Box No. 00, 00-00 Xxxxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands
SIGNED as a DEED by
/s/ X. Xxxxxxxxx
--------------------------------------
As attorney for BARCLAYS BANK PLC )
as Agent in the presence of: ) /s/ X. Xxxxxxxxx
Witness: /s/ X. Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Occupation: Corporate Manager
Address: BARCLAYS PRIVATE BANK & TRUST LIMITED
P.O. Box No. 00, 00-00 Xxxxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands
SIGNED as a DEED by
/s/ X. Xxxxxxxxx
--------------------------------------
As attorney for BARCLAYS BANK PLC ) /s/ X. Xxxxxxxxx
as Bank in the presence of: )
Witness: /s/ X. Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Occupation: Corporate Manager
Address: BARCLAYS PRIVATE BANK & TRUST LIMITED
P.O. Box No. 00, 00-00 Xxxxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands
Page 10
SIGNED as a DEED by
/s/ X. Xxxxxxxxx
----------------------------------------
As attorney for SOCIETE GENERALE ) /s/ X. Xxxxxxxxx
in the presence of: )
Witness: /s/ X. Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Occupation: Corporate Manager
Address: BARCLAYS PRIVATE BANK & TRUST LIMITED
P.O. Box No. 00, 00-00 Xxxxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands
SIGNED as a DEED by
/s/ X. Xxxxxxxxx
----------------------------------------
As attorney for THE ROYAL BANK OF ) /s/ X. Xxxxxxxxx
SCOTLAND PLC in the presence of: )
Witness: /s/ X. Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Occupation: Corporate Manager
Address: BARCLAYS PRIVATE BANK & TRUST LIMITED
P.O. Box No. 00, 00-00 Xxxxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands
SIGNED as a DEED by
/s/ X. Xxxxxxxxx
----------------------------------------
As attorney for TORONTO-DOMINION BANK ) /s/ X. Xxxxxxxxx
in the presence of: )
Witness: /s/ X. Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Occupation: Corporate Manager
Address: BARCLAYS PRIVATE BANK & TRUST LIMITED
P.O. Box No. 00, 00-00 Xxxxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands
Page 11
SIGNED as a DEED by
/s/ X. Xxxxxxxxx
----------------------------------------
As attorney for UBS AG ) /s/ X. Xxxxxxxxx
in the presence of: )
Witness: /s/ X. Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Occupation: Corporate Manager
Address: BARCLAYS PRIVATE BANK & TRUST LIMITED
P.O. Box No. 00, 00-00 Xxxxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands
SIGNED as a DEED by
/s/ X. Xxxxxxxxx
----------------------------------------
As attorney for WESTDEUTSCHE ) /s/ X. Xxxxxxxxx
LANDESBANK GIROZENTRALE )
in the presence of:
Witness: /s/ X. Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Occupation: Corporate Manager
Address: BARCLAYS PRIVATE BANK & TRUST LIMITED
P.O. Box No. 00, 00-00 Xxxxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands
SIGNED as a DEED by
/s/ X. Xxxxxxx-Xxxxxxxxxxx
----------------------------------------
As attorney for BANK OF AMERICA ) /s/ X. Xxxxxxx-Xxxxxxxxxxx
INTERNATIONAL LIMITED )
in the presence of:
Witness: /s/ X. Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Occupation: Corporate Manager
Address: BARCLAYS PRIVATE BANK & TRUST LIMITED
P.O. Box No. 00, 00-00 Xxxxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands
Page 12
TXU Europe Group plc (formerly Eastern Group plc) 00-00 Xxxxx Xxxxxx
XXX Europe Merchant Properties Limited St Helier
(formerly Eastern Merchant Generation Limited) Jersey JE4 8PU
Eastern Group Finance Limited Channel Islands
TXU Europe Power Limited (formerly Eastern Generation Limited) Tel 00000 000000
Eastern Electricity plc Fax 00000 000000
The Banks (as set out in the Supplemental Deed)
Barclays Bank PLC (as Agent)
BARCLAYS
c/o Barclays Private Bank & Trust Limited
00/00 Xxxxx Xxxxxx
Xx Xxxxxx, Xxxxxx
XX0 0XX
Our ref CH/RLS
Dear Sirs
TXU Europe Merchant Properties Limited
Rent Factoring Transaction dated 28 October 1996
We refer to the Supplemental Deed dated 19 January 2001 (the "Supplemental
Deed") between TXU Europe Group plc, TXU Europe Merchant Properties Limited, TXU
Europe Merchant Generation Limited, Eastern Group Finance Limited, TXU Europe
Power Limited, Eastern Electricity plc, the Banks (as set out in the
Supplemental Deed) and Barclays Bank PLC as Agent under the Guarantee and
Indemnity (the "Guarantee and Indemnity") dated 28 October 1996 and entered into
in respect of certain rent factoring arrangements concluded by, inter alia, TXU
Europe Merchant Properties Limited, pursuant to which, among other things,
certain changes were requested to the Guarantee and Indemnity in order to allow
the Tenant to prepay all outstanding Rents on 19 January 2001.
We confirm that (i) we have received the original Supplemental Deed executed on
behalf of the above named parties and (ii) the originals of the Supplemental
Deed and this letter (together with "Documents") will be held in Jersey by
Barclays Private Bank & Trust Limited on behalf of the parties to the Documents
on the terms, mutatis mutandis, of the Custody Deed (the "Custody Deed") dated
28 October 1996 (as amended) between TXU Europe Merchant Properties Limited,
Eastern Group Finance Limited, Barclays Bank PLC, The Royal Bank of Scotland
plc, Societe Generale, The Toronto-Dominion Bank, UBS AG, Westdeutsche
Landesbank Girozentrale, Bank of America International Limited and Barclays
Private Bank & Trust Limited as if TXU Europe Group plc, TXU Europe Power
Limited, Eastern Electricity Plc and TXU Europe Merchant Generation Limited were
party to the Custody Deed and as if the Documents were Custody Documents as
defined therein.
/s/ X. Xxxxxxxx
Yours faithfully
for and behalf of
Barclays Private Bank & Trust Limited
Authorised Official
The Industrial Bank Of Japan, Limited
London Branch
Xxxxxxx House
Xxx Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX
Tel: 000-0000 0000 Telex: 886939 Fax: 000-0000 0000
direct tel: +44-20-7815.2217 direct fax: +44-20-7815.2222
e-mail: x.xxxxxxxx@xxx.xx.xx
10 October 2001
Xx Xxxx Xxxxxx
Deputy Group Treasurer
TXU Europe
PO Box 40
Wherstead Park
Wherstead
Ipswich
Suffolk, IP9 2AQ
Xx Xxxx Xxxxxx
Manager, Energy & Project Finance
Corporate Banking Europe
The Bank of Nova Scotia
Scotia House
00 Xxxxxxxx Xxxxxx
Xxxxxx, XX0X 0XX
Gentlemen
TXU Europe Merchant Generation/TXU Europe Merchant Properties
(pound)500 million Prepayment Facility dated I July 1996
(as amended by an Amendment and Restatement Agreement dated 8 August 1996
and the Deferred Premium Settlement Deed dated 28 October 1996)
---------------------------------------------------------------
Enclosed please find your originals of the Letter of Release of Charges
completed by the Parties on 27 September 2001 for your records.
Should you have any questions concerning the attached please let me know.
With kind regards
/s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
Senior Manger, European Agency Dept
TXU Europe Group PIC
Wherstead Park
PO Box 40
Wherstead Ipsvwich
Suffolk IP9 2AQ
Web: xxxx://xxx.xxx-xxxxxx.xxx
For the attention of: 27 September 2001
--------------------
Loans Administration
The Industrial Bank of Japan Limited
Xxxxxxx House
Xxx Xxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
as Agent for itself and for the other Banks and Participants
Dear Sirs,
TXU Europe Merchant Generation Limited ("MGL") and TXU Europe
Merchant Properties Limited ("MPL") (together the "Borrowers")
under a (pound)500,000,000 Prepayment Facility Agreement dated
1st July, 1996 as amended and restated by an amendment and
restatement agreement dated 8th August, 1996 and as further
amended by a Deferred Premium Settlement Deed between the
Borrowers, Eastern Electricity plc, The Industrial Bank of Japan,
Limited (for itself as Bank and Participant and as Agent and
Arranger) and The Bank of Nova Scotia and Societe Generale in
their respective capacities as Bank and Participant dated 28th
October, 1996 and as further amended by a Letter of Agreement
dated 29th March, 2001 between the Borrowers and The Industrial
Bank of Japan, Limited (for itself as Bank and Participant and as
Agent for the Banks and Participants) (the "Facility Agreement")
1. Introduction
We refer to:
(a) the Facility Agreement;
(b) the Irrevocable Payment Direction Deed between National
Power plc, Eastern Electricity plc (formerly Eastern Group
plc), MPL and The Industrial Bank of Japan, Limited dated
27th June, 1996; and
(c) (i) Charge on Cash between MPL and Societe Generale dated
28th October, 1996, (ii) Charge on Cash between MPL and The
Bank of Nova Scotia dated 28th October, 1996, and (iii)
Charge on Cash between MPL and The Industrial Bank o(pound)
Japan, Limited dated 28th October, 1996, (each a "Charge on
Cash" and together the "Charges on Cash"),
(together, the "Documents").
Terms defined in the Documents shall, except as otherwise
expressly provided herein or the context otherwise requires,
have the same meaning in this letter.
2. Application of Deposit Moneys and release of Charges on
Cash
We agree that:
(a) notwithstanding anything contained in Clause 21.1
(Payment) of the Facility Agreement, each Bank (as Bank
and Participant) shall be unconditionally and
irrevocably permitted (and is unconditionally and
irrevocably authorised by MPL to) on 31st December,
2001 (the "Discharge Date") to apply all of the Deposit
Moneys (as defined in each Charge on Cash to which it
is a party) the subject of the Charge on Cash to which
it is a party so as to discharge all amounts due to
that Bank from the Borrowers under the Documents. For
the avoidance of doubt, the amount to be applied on the
Discharge Date shall be at least equal to the amount
the Agent would have received on the date of payment in
respect of the First Element of the Acceleration Sum if
the Acceleration Sum Payment Date were to occur on that
date, adjusted as described in Clause 9.1(b) of the
Facility Agreement, or as the case may be 9.2(b); and
(b) subject to written confirmation by the Agent to the
Borrowers on or after the Discharge Date, following
application of the Deposit Moneys (as defined in each
Charge on Cash to which it is a party) in accordance
with paragraph (a) above, the Secured Liabilities (as
defined in the Charge on Cash to which it is a party)
shall have been discharged in full; and
(c) upon the expiry of the respective Security Period (but
not otherwise), if requested by MPL each Bank shall, at
the expense of MPL, execute a deed of release (or any
other relevant release document reasonably requested by
MPL) in respect off the Charge on Cash to which it is a
party.
3. Representations
Each of MGL and MPL represent and warrant to each Bank and
Participant that:
(i) it has the corporate power to enter and perform, and
has taken all necessary action to authorise the entry
into, performance and delivery of this letter; and
(ii) it has taken all corporate action necessary to
authorise the execution by it of this letter and this
letter constitutes a legal, valid and binding
obligation on it, enforceable against it in accordance
with its terms.
4. Costs and Expenses
MPL shall forthwith on demand pay to the Agent for the
benefit of the Agent, the Banks and the Participants the
amount of all costs and expenses (including legal fees) and
any VAT thereon incurred in connection with the negotiation,
preparation, printing and execution of this letter.
5. Finance Documents
This letter is a Finance Document.
6. Continued Effectiveness of Finance Documents
The entry into and the performance of this letter by the
parties hereto shall not operate as a waiver of any of the
Agent's, Bank's, Participant's or The Industrial Bank of
Japan, Limited's rights under the Facility Agreement, IPDD
or the Charges on Cash, as the case may be, and all such
agreements shall remain in full force and effect except to
the extent expressly adjusted by this letter.
This letter may be executed in any number of counterparts,
and this has the same effect as if the signatures on the
counterparts were on a single copy of this letter.
Please confirm your agreement to the terms of this letter by
signing and returning to us the enclosed copy of this
letter.
A person who is not a party to this letter has no rights
under the Contracts (Rights of Third Parties) Act 1999 to
enforce any term of this letter. This letter is governed by
English law.
Yours faithfully,
/s/
------------------------------------
for and on behalf of
TXU Europe Merchant Properties Limited
------------------------------------
for and on behalf of
TXU Europe Merchant Generation Limited
Acknowledgement
We agree to the above
Date: 27 September 2001
/s/ X. X. Xxxxxxxx
--------------------------------------------------
for and on behalf of
The Industrial Bank of Japan, Limited
as agent for itself and the
other Banks and Participants
We agree to the above.
Dated: 27 September 2001
/s/ X. X. Xxxxxxx
--------------------------------------------------
for and on behalf of
Societe Generale
We agree to the above
Date: 27 September 2001
/s/
--------------------------------------------------
for and on behalf of
The Bank of Nova Scotia
