EXHIBIT 99(b)(3)
EXECUTION COPY
FACILITY AGREEMENT
DATED 3 FEBRUARY 1998
L2,275,000,000
TERM LOAN FACILITY
L450,000,000
REVOLVING CREDIT FACILITY
between
PACIFICORP SERVICES LIMITED
PACIFICORP FINANCE (UK) LIMITED
PACIFICORP ACQUISITIONS
as Guarantors
PACIFICORP ACQUISITIONS
as Borrower
CITIBANK, ▇.▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇.▇. ▇▇▇▇▇▇ SECURITIES LTD.
as Arrangers
CITIBANK, ▇.▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS, ▇.▇.
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
as Original Banks
CITIBANK INTERNATIONAL PLC
as Facility Agent
CITIBANK, N.A.
as Security Agent
CITIBANK, N.A.
as LC Bank
THIS FACILITY AGREEMENT IS ENTERED INTO WITH THE BENEFIT AND SUBJECT TO THE
TERMS OF AN INTERCREDITOR AGREEMENT AS REFERRED TO HEREIN
▇▇▇▇▇▇▇▇ Chance
London
CONTENTS
CLAUSE PAGE NO.
1. Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Facilities and Related Matters. . . . . . . . . . . . . . . . . . . . . . . . 32
3. Purpose and Responsibility. . . . . . . . . . . . . . . . . . . . . . . . . . 36
4. Conditions Precedent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
5. Advances and Documentary Credits. . . . . . . . . . . . . . . . . . . . . . . 39
6. Optional Currencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
7. Cancellation of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . 45
8. Repayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9. Prepayment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10. Interest Periods. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11. Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
12. Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
13. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
14. Market Disruption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
15. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
16. Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
17. Mitigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
18. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
19. Additional Borrowers, Guarantors and Security . . . . . . . . . . . . . . . . 65
20. Representations and Warranties. . . . . . . . . . . . . . . . . . . . . . . . 68
21. Undertakings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
22. The Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
23. Financial Ratios. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
24. Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100
25. Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .109
26. Agents, Arrangers and Banks . . . . . . . . . . . . . . . . . . . . . . . . .111
27. Fees, Expenses and Stamp Taxes. . . . . . . . . . . . . . . . . . . . . . . .117
28. Waivers, Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . .119
29. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .120
30. Assignments, Transfers and Substitutions. . . . . . . . . . . . . . . . . . .120
31. Set-Off and Redistribution. . . . . . . . . . . . . . . . . . . . . . . . . .125
32. Governing Law and Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . .127
33. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .127
34. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .128
THE FIRST SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .130
Part I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .130
Borrowers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .130
Part II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .131
Guarantors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .131
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Part III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .132
Facility Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .132
THE SECOND SCHEDULE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133
Banks' Commitments and Notice Details . . . . . . . . . . . . . . . . . . . .133
THE THIRD SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .134
Forms of Request. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .134
THE FOURTH SCHEDULE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135
Substitution Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . .135
THE FIFTH SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .138
Calculation of Additional Cost. . . . . . . . . . . . . . . . . . . . . . . .138
THE SIXTH SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .140
Part I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .140
Borrower Accession Agreement . . . . . . . . . . . . . . . . . . . . . . . .140
Part II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .143
Guarantor Accession Agreement . . . . . . . . . . . . . . . . . . . . . . . .143
THE SEVENTH SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .146
Part I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .146
Documentary Conditions Precedent. . . . . . . . . . . . . . . . . . . . . . .146
Part II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147
Additional Borrower/Guarantor Documentary Conditions Precedent. . . . . . . .147
Part III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147
Additional Guarantors and Chargors. . . . . . . . . . . . . . . . . . . . . .147
THE EIGHTH SCHEDULE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .148
Terms of Banks' Indemnity to LC Bank. . . . . . . . . . . . . . . . . . . . .148
THE NINTH SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150
Reservations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150
THE TENTH SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .152
Encumbrances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .152
THE ELEVENTH SCHEDULE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .153
Economic and Monetary Union . . . . . . . . . . . . . . . . . . . . . . . . .153
THE TWELFTH SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154
Required Distributions Schedule . . . . . . . . . . . . . . . . . . . . .154
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THIS FACILITY AGREEMENT dated 3 February 1998
BETWEEN:
(1) PACIFICORP SERVICES LIMITED, a company incorporated in England and Wales
(No. 3366016) ("SERVICES");
(2) PACIFICORP ACQUISITIONS, a company incorporated in England and Wales (No.
3386442) ("PA");
(3) PACIFICORP FINANCE (UK) LIMITED, a company incorporated in England and
Wales (No. 3365681) ("FINANCE");
(4) CITIBANK, N.A., ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL and ▇.▇. ▇▇▇▇▇▇ SECURITIES LTD.
as Arrangers (in this capacity the "ARRANGERS");
(5) CITIBANK, N.A., ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS, L.P. and ▇▇▇▇▇▇ GUARANTY
TRUST COMPANY OF NEW YORK as original lenders (in this capacity the
"ORIGINAL BANKS");
(6) CITIBANK INTERNATIONAL PLC as facility agent for the Banks (in this
capacity the "FACILITY AGENT");
(7) CITIBANK, N.A. as security agent and trustee for the Banks (in this
capacity the "SECURITY AGENT"); and
(8) CITIBANK, N.A. as LC Bank (as defined below).
WHEREAS pursuant to arrangements made by the Arrangers and upon and subject to
the terms of this Agreement, the Original Banks (as defined above) have agreed
to make available a term loan facility aggregating L2,275,000,000 to PA and,
upon their accession hereto as Additional Borrowers, TEG and certain of its
Subsidiaries and a revolving credit facility of L450,000,000 to the Borrowers.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINED TERMS In this Agreement:-
"ACCOUNTING DATE" means each 30th June, 30th September, 31st December and 31st
March, falling after the date of this Agreement, save as any such date may be
adjusted to avoid an Accounting Date falling on a day which is not a Business
Day and/or to ensure that all Accounting Dates fall on the same day of the
relevant weeks.
"ACCOUNTING PERIOD" means any period of approximately three months or one year
ending on an
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Accounting Date for which Accounts are required to be prepared for the purposes
of this Agreement.
"ACCOUNTS" means from time to time:-
(a) the latest audited consolidated annual accounts of the PA Group together
with a Reconciliation Statement in relation thereto;
(b) the latest unaudited consolidated quarterly accounts of the PA Group
together with a Reconciliation Statement in relation thereto;
(c) the consolidated unaudited accounts of the PA Group prepared on a pro forma
basis which are referred to in Clause 21.2(a)(vi);
(d) any other audited or unaudited consolidated or unconsolidated accounts (if
any) of the PA Group or any Material Subsidiary,
delivered or required to be delivered to the Facility Agent pursuant to this
Agreement, or such of the foregoing as the context requires.
"ACT" means the Electricity ▇▇▇ ▇▇▇▇ and, unless the context otherwise requires,
all subordinate legislation made pursuant thereto.
"ADDITIONAL BORROWER" means TEG and any wholly owned subsidiary of TEG, in each
case upon it becoming, and any other entity which becomes, party to this
Agreement as a Borrower pursuant to a Borrower Accession Agreement.
"ADDITIONAL COST" in relation to each Advance or overdue amount denominated in
Sterling means, for the Interest Period relating to that Advance or overdue
amount the cost as calculated by the Facility Agent in accordance with the Fifth
Schedule imputed to each Bank participating in such Advance or overdue amount of
compliance with the mandatory liquid assets requirements of the Bank of England
during that Interest Period, expressed as a percentage rate per annum.
"ADDITIONAL GUARANTOR" means any member of the PA Group which becomes party to
this Agreement as a Guarantor pursuant to a Guarantor Accession Agreement.
"ADJUSTED CAPITAL AND RESERVES" means the amount (including any share premium)
for the time being paid up or credited as paid up on the issued share capital of
PA,
PLUS the outstanding principal amount of any Subordinated Debt which is
owed by a member of the PA Group to one of its Affiliates;
PLUS the outstanding principal, capital, nominal or similar amount of any
issue of Hybrid Preferred Securities made by a member of the PA Group;
PLUS the amount standing to the credit (or, as the case may be, MINUS the
amount standing to the
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debit) of the capital and revenue reserves of the PA Group and (to the
extent created as a consequence of and consistent with an evaluation of any
assets of the PA Group or the TEG Group made by the Director General and as
such evaluation is adjusted from time to time) the revaluation reserves of
the TEG Group or the PA Group;
PLUS any amount standing to the credit or MINUS any amount standing to the
debit of the consolidated profit and loss account of the PA Group;
PLUS the amount of goodwill arising upon and in respect of the acquisition
of the Shares and/or Offer Costs;
MINUS any Distributions or other distribution declared or made by PA or any
of its Subsidiaries (other than to another member of the PA Group), to the
extent only that those reserves have not been reduced on account thereof
and PLUS any repayment or refund of any Distribution or other distribution
effectively deducted (whether by reason of the preceding minus item or by
reduction in reserves), to the extent only that reserves have not been
increased on account of such repayment or refund;
MINUS amounts attributable to the interests (if any) of outside holders of
issued share capital (other than Hybrid Preferred Securities) in any member
of the PA Group other than PA itself;
and for the purposes of the foregoing, no item shall be effectively deducted or
added more than once, all items shall be calculated on a consolidated basis and
(subject only as may be required in order to reflect the express inclusion or
exclusion of items as specified in this definition) in accordance with the
Applicable Accounting Principles and, where the calculation is being made as at
the end of any Accounting Period, shall be determined from the balance sheet
forming part of the Accounts for that Accounting Period and Hybrid Preferred
Securities shall be ignored to the extent that were they not ignored they would
constitute more than 10% of Adjusted Capital and Reserves.
"ADJUSTED NET INCOME" for any quarterly Accounting Period of PA means the sum of
(i) the net profit (after tax) of the PA Group for such period, determined on a
consolidated basis and in accordance with the Applicable Accounting Principles
and as determined from the consolidated Accounts of the PA Group for such
quarterly Accounting Period and (ii) any interest in respect of Subordinated
Debt taken into account in the net profit (after tax) of the PA Group for such
quarterly Accounting Period adjusted for the amount by which the tax payable by
the PA Group has been reduced by virtue of such interest.
"ADVANCE" means the principal amount of each borrowing under this Agreement from
the Tranche 1 Commitments (a "TRANCHE 1 ADVANCE" and, if from the Tranche 1A
Commitments, a "TRANCHE 1A ADVANCE" and, if from the Tranche 1B Commitments, a
"TRANCHE 1B ADVANCE") or the Tranche 2 Commitments (a "TRANCHE 2 ADVANCE") and
any amount resulting from the splitting thereof pursuant to Clause 10.2 or, in
each case, the principal amount of such borrowing outstanding from time to time.
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"AFFILIATE" for the purposes of this Agreement:
(a) means a Subsidiary or a holding company (as defined in Section 736 of
the Companies Act 1985) of a person and any other Subsidiary of that
holding company; and
(b) ▇▇▇▇▇▇▇ ▇▇▇▇▇ International Bank and ▇▇▇▇▇▇▇ Sachs Credit Partners,
L.P. will be treated as Affiliates of each other.
"AGENT" means:
(a) when designated "FACILITY", Citibank International plc or any of its
successors pursuant to Clause 26.14;
(b) when designated "SECURITY", Citibank, N.A. or any of its successors
pursuant to Clause 26.14 and any corresponding provision of any Security
Document; and
(c) without any such designation, the Facility Agent or the Security Agent, as
the context requires.
"AGENT'S SPOT RATE OF EXCHANGE" with respect to any Optional Currency on any day
means the spot rate of exchange of the Facility Agent (as determined by the
Facility Agent) for the purchase of the appropriate amount of such Optional
Currency with Sterling in the London Foreign Exchange Market in the ordinary
course of business at or about 10.00 a.m. on the day in question for delivery
three Business Days thereafter.
"ANNOUNCEMENT DATE" means the date on which the Press Release is issued.
"APPLICABLE ACCOUNTING PRINCIPLES" means, subject to Clause 21.2(e), accounting
principles and practices, which at the date hereof are generally accepted in the
United States of America and consistently applied and consistent in all material
respects (other than the absence from the Model of notes) with the accounting
principles and practices applied in the preparation of the Model, and any
variation to such accounting principles and practices which is not material or,
if material, has been agreed in accordance with Clause 21.2(e).
"APPLICABLE TAXES" has the meaning given to it in Clause 13.1.
"ASSET SPLIT" means together:
(a) the transfer by Peabody Investments to PA of the entire issued share
capital of Peabody Holdings in exchange for payments by PA and the transfer
thereof by PA to Powercoal in exchange for the extinguishment of the PA
Note; and
(b) the accession by Peabody Investments as Subordinated Creditor to the
Intercreditor Agreement with respect to the PA/Peabody Note,
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as contemplated in the Structure Memorandum.
"AUDITORS" means such firm of independent public accountants of international
standing recognised and authorised by the Institute of Chartered Accountants of
England and Wales which is appointed by PA to audit the consolidated annual
accounts of PA.
"AUSTRALIAN DOLLARS" means the lawful currency for the time being of Australia.
"AUTHORISED SIGNATORY" in relation to any Obligor and any communication to be
made or document to be executed or certified by that Obligor means, at any time,
any person:
(a) who is at such time duly authorised by a resolution of the board of
directors of that Obligor or a committee thereof or by virtue of his
appointment by that Obligor to a particular office to make that
communication or to execute or certify that document on behalf of that
Obligor and in respect of whom the Facility Agent has received a
certificate of a director or the secretary or an assistant secretary of
that Obligor setting out the name and signature of that person and
confirming that person's authority so to act; and
(b) in respect of whom no notice has been received by the Facility Agent from
that Obligor to the effect that such person is no longer an Authorised
Signatory for that Obligor.
"AVAILABLE FACILITY AMOUNT" means, at any time, the amount of the Tranche 2
Commitments, less the Original Sterling Amount of the outstanding Tranche 2
Utilisations at such time taking into account any Tranche 2 Utilisations
scheduled to be made, repaid or prepaid by assuming that the same occurs when
due.
"AVAILABILITY PERIOD" means the period from opening of business in London on the
date of this Agreement to:
(a) when designated "TRANCHE 1", close of business in London on whichever is
the earlier of (i) the date 200 days after the Announcement Date, (ii) the
later of (A) the date three months after the Unconditional Date and (B) the
date falling forty nine days after the date on which PA is obliged pursuant
to Clause 21.10(n) to implement the procedures referred to therein, and
(iii) the date 200 days after the date hereof;
(b) when designated "TRANCHE 2", close of business in London on whichever is
the earlier of (i) (if no Tranche 1 Advance is drawn at all) the expiry of
the Tranche 1 Availability Period, and (ii) the fifth anniversary of the
date hereof;
or in either case such later date as all the Banks may agree in writing on or
after the date hereof, provided that the Tranche 1 Availability Period and the
Tranche 2 Availability Period, if not already terminated, shall terminate on the
date on which the Offer lapses or is withdrawn.
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"BANK" means each of the following:
(a) each party whose name is set out in the Second Schedule;
(b) each bank to which rights and/or obligations under this Agreement are
assigned or transferred pursuant to Clause 30 or which assumes rights and
obligations pursuant to a Substitution Certificate; and
(c) any successor or successors in title to any of the foregoing;
provided that upon (i) termination in full of all the Commitments of any Bank,
and (ii) irrevocable payment in full of all amounts of principal, interest, fees
and all amounts arising pursuant to Clause 5.5 and 25.2(c) which may be or
become payable to such Bank under the Finance Documents, such Bank shall not be
regarded as being a Bank for the purposes of determining whether any provision
of any of the Finance Documents requiring consultation with or the consent or
approval of or instructions from the Banks or any of them or the Majority Banks
or the Majority Offer Banks has been complied with unless the Commitments of all
other Banks have been terminated in full on the date on which such Bank's
Commitments terminated.
"BASE FINANCIAL STATEMENTS" means the audited annual consolidated accounts of
TEG for and as at the end of the financial year of TEG ended 31 March 1997.
"BORROWER" means PA and each Additional Borrower.
"BORROWER ACCESSION AGREEMENT" means an agreement substantially in the form of
Part I of the Sixth Schedule made pursuant to Clause 19.1.
"BORROWING" means any indebtedness for, or for interest or other charges
relating to, or otherwise in respect of or pursuant to:
(a) moneys borrowed or raised, including, without limitation, (i) monies raised
by the sale of receivables or other financial assets on terms and to the
extent that recourse may be had to the vendor (or any other member of the
Group) in the event of non-payment of such receivables or financial assets
when due (other than recourse as to title and any requirement to repurchase
receivables which do not meet the eligibility criteria for inclusion in the
disposal or securitisation (other than on grounds of non-payment or
insolvency)), and (ii) monies raised under acceptance credit facilities and
through the issue of bonds, notes, debentures, bills, loan stocks and other
debt securities (including any debt security convertible, but not at the
relevant time converted, into share capital);
(b) the outstanding acquisition cost of assets or services to the extent
payable on deferred payment terms after the time of acquisition or
possession thereof by the party liable (whether or not evidenced by any
bond, note, debenture, loan stock or other debt security), excluding
retentions or trade credit (whether in respect of assets or services) which
are customary in the trade
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concerned carried on in the normal course and not entered into primarily as
a means of raising finance;
(c) moneys received in consideration for the supply of goods and/or services to
the extent received more than six months before the due date for such
supply (but excluding any liability in respect of bona fide advance
payments and deposits received from customers unless so received pursuant
to a transaction entered into primarily as a means of raising finance);
(d) leases, agreements or instruments which are treated as finance leases in
accordance with the Applicable Accounting Principles (other than the
amounts payable in respect of either of the generation lease arrangements
in force as at the date hereof between National Power plc and any member of
the TEG Group and Powergen plc and any member of the TEG Group if at any
time they should be treated as a finance lease);
(e) (i) any guarantee, indemnity, letter of credit or other similar legally
binding instrument to assure payment of, or against loss in respect of
non-payment of, any of the indebtedness specified in this definition
(other than in (f) below) and any counter-indemnity in respect of any
thereof; and/or
(ii) any legally binding agreement or other instrument not falling within
paragraph (i) above entered into in connection with any of the
indebtedness specified in this definition (other than in (f) below)
requiring, or giving any person the right (contingently or otherwise)
to require, that any other person invest in, make advances to,
purchase assets of or maintain the solvency or financial condition of
any other person;
(f) for the purpose of Clause 24.1(e), any Derivative Transaction; and
(g) transactions which involve or have the commercial effect of the borrowing
of commodities as part of an arrangement for or in substitution for the
raising of finance, the value of indebtedness concerned for this purpose
being the sum which must be paid and/or the value in money terms of the
commodities which may be delivered by the "borrower" to, or to the order
of, the "lender";
provided that in computing an amount of Borrowings of any person or persons for
the purposes of Clause 21.4(b) and the definitions of Consolidated Net Total
Borrowings and Consolidated Total Net Interest Payable in Clause 1.1 double
counting shall be avoided and:
(i) any interest, dividends, commission, fees or other like financing
charges, shall be excluded, save in each case to the extent capitalised;
(ii) the outstanding amount of (A) any Subordinated Debt owed to an Affiliate
of the borrower thereof, (B) any Hybrid Preferred Securities (to the
extent included in Adjusted Capital and Reserves), and (C) any Project
Finance Borrowings, shall be excluded;
(iii) (in the case of paragraph (d)) only the capitalised value (as determined
in accordance with the Applicable Accounting Principles) of any items
falling thereunder shall be included;
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(iv) any item falling within paragraph (e) which is in respect of any sum
excluded by item (i) of this proviso shall be excluded;
(v) any item falling within paragraph (e)(ii) shall be included only to the
extent that the same has been or (in accordance with the Applicable
Accounting Principles) ought to be given a value in the latest or next
Accounts;
(vi) any Borrowing issued at a discount shall be valued for the purposes of
this definition by reference to the issue price together with any
applicable discount required under the Applicable Accounting Principles
to be reflected in the relevant person's most recently published
financial statements; and
(vii) all obligations and liabilities in respect of Derivative Transactions
(other than any Hedging Documents and any form of energy related
Derivative Transactions and any hedging agreement that is designed and
used solely to protect the Borrower against fluctuations in currency
exchange rates and not for speculation) shall be included to the extent
the Net Termination Value of such Derivative Transactions at any time
exceeds L100,000,000.
"BORROWINGS LIST" means a list delivered to the Facility Agent as a condition
precedent hereto initialled on behalf of Services and the Facility Agent for the
purposes of identification, identifying (a) all facilities (whether committed or
uncommitted and whether or not utilised by the company or companies entitled so
to do) estimated to be in place as at 31st March 1998 and in respect of which
any utilisation thereunder constitutes or would constitute a Borrowing or
obligation of any member of the TEG Group, (b) which of those facilities are
expected to have been utilised as at such date and the approximate extent of
such utilisations and indicating any such Borrowings or obligations which, to
the extent outstanding on the Unconditional Date would be in default on the
Unconditional Date or thereafter as a result of the consummation of those
matters and things contemplated by the Transaction Documents (or any of them),
(c) the Refinancing Debt, and (d) the member of the Group which (or, where more
than one member is identified in respect of any particular Refinancing Debt,
whichever of those members is selected by PA to be the member which), subject to
becoming a Borrower hereunder, is to be the Borrower of any funds borrowed under
the Facility for the refinancing of the Refinancing Debt.
"BUSINESS DAY" means:
(a) a day (other than a Saturday or Sunday) on which banks are open for
business in London; and
(b) (in respect of a day on which a payment or other transaction in an
Optional Currency is required under this Agreement) a day (not being a
Saturday or Sunday) on which banks and foreign exchange markets are open
for business in:
(i) London;
(ii) the principal financial centre of the country of that currency,
or, if there is more than one relevant country, the countries
designated by the Facility Agent; and
-8-
(iii) the principal financial centre of the country of the place of
payment of the transaction of that Optional Currency, or, if more
than one relevant country, the countries designated by the
Facility Agent.
"CASH" means any credit balances on any deposit, savings, current or other
account and any cash in hand.
"CASH EQUIVALENT INVESTMENTS" means:
(a) debt securities denominated in Sterling or US Dollars or Australian Dollars
issued by the Government of the United Kingdom or the United States of
America or Australia (as the case may be) where such debt securities have
not more than 12 months to final maturity and are not convertible into any
other form of security;
(b) debt securities denominated in Sterling or US Dollars or Australian Dollars
which have not more than 12 months to final maturity, are not convertible
into any other form of security, are rated P2 or higher by ▇▇▇▇▇'▇ Investor
Services Inc. or A2 or higher by Standard & Poor's Ratings Group and are
not issued or guaranteed by any member of the Group; and
(c) certificates of deposit denominated in Sterling or US Dollars or Australian
Dollars having not more than 12 months to final maturity issued by a bank
incorporated in or having a branch in the United Kingdom or the United
States of America or Australia (as the case may be) and rated P2 or higher
by ▇▇▇▇▇'▇ Investor Services Inc. or A2 or higher by Standard & Poor's
Ratings Group.
"CHIEF FINANCIAL OFFICER" means the finance director or chief financial officer
of PA from time to time or in his absence his deputy (being an Authorised
Signatory of PA).
"CITIZENS" means Citizens Power LLC and/or any or all of its Subsidiaries and/or
any or all of their respective assets.
"CODE" means The City Code on Takeovers and Mergers.
"COMMITMENT" in relation to a Bank means an amount appearing and designated as
such against that Bank's name in the Second Schedule or in the Substitution
Certificate or other document by which it became party to or acquired rights
under this Agreement (being a "TRANCHE 1 COMMITMENT" or a "TRANCHE 2 COMMITMENT"
as therein indicated and, if designated "1A" the amount so designated and, if
designated "1B", the amount so designated), in each case as reduced or increased
by substitution or transfer pursuant to Clause 30 and any Substitution
Certificates to which such Bank is party, and to the extent not cancelled,
reduced or terminated under this Agreement.
"CONSOLIDATED EBITDA" for any period comprising an annual Accounting Period or
four (taking into account the provisions of Clause 23.2) consecutive quarterly
Accounting Periods of PA (taken together as one period) means the profit of the
PA Group for such period:
BEFORE DEDUCTING all depreciation and other amortisation (including,
without limitation,
-9-
amortisation of goodwill arising from and upon the acquisition of the
Shares and amortisation of Offer Costs and amortisation of any prepayment
made of lease rentals arising pursuant to the generation lease arrangements
in force as at the date hereof between National Power plc and a member of
the TEG Group and between Powergen Plc and a member of the TEG Group);
BEFORE TAKING INTO ACCOUNT all extraordinary items (whether positive or
negative);
BEFORE DEDUCTING advance corporation tax, mainstream corporation tax,
windfall, occasional or non-recurring or recurring taxes and taxes imposed
on the income, gains or turnover of a company by virtue of it being a
company which falls within a specified class and their equivalents in any
relevant jurisdiction;
BEFORE TAKING INTO ACCOUNT Consolidated Total Net Interest Payable for such
period;
BEFORE DEDUCTING any Offer Costs;
AFTER DEDUCTING any gain over and ADDING back any loss by reference to book
value of the PA Group arising on the sale, lease or other disposal of any
asset (other than on the sale of trading stock) during such period and any
gain or loss arising on revaluation of any asset during such period, in
each case to the extent that it would otherwise be taken into account,
and for the purposes of the foregoing no item shall be effectively deducted,
credited or otherwise taken into account more than once in this calculation, all
items shall be determined on a consolidated basis and (subject only as may be
required in order to reflect the express inclusion or exclusion of items as
specified in this definition) in accordance with the Applicable Accounting
Principles and as determined from the consolidated Accounts of the PA Group for
such annual Accounting Period or for the relevant Accounting Periods falling
within such period.
"CONSOLIDATED NET TOTAL BORROWINGS" at any time means the aggregate at that time
of the Borrowings of the members of the PA Group from sources external to the PA
Group (giving effect to the proviso to the definition of Borrowings in Clause
1.1),
LESS the PA Group's Cash (excluding the cash referred to in item 2 of the
Tenth Schedule) and Cash Equivalent Investments except to the extent that
such Cash or Cash Equivalent Investments cannot be legally remitted at that
time to a member of the PA Group in the United Kingdom, the United States
of America or Australia;
calculated on a consolidated basis and (subject only as may be required in order
to reflect the express inclusion or exclusion of items as specified herein
and/or in the definition of Borrowings in Clause 1.1) in accordance with the
Applicable Accounting Principles and, where the calculation is being made as at
the end of any Accounting Period for which a consolidated balance sheet of the
PA Group has been delivered to the Facility Agent, as determined from that
balance sheet together with a Reconciliation Statement in relation thereto.
"CONSOLIDATED TOTAL NET INTEREST PAYABLE" for any period comprising an annual
Accounting Period or
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four (taking into account the provisions of Clause 23.2) consecutive quarterly
Accounting Periods (taken together as one period) of PA means the Interest
accrued during such period on Borrowings of any member or members of the PA
Group from sources external to the PA Group (giving effect to the proviso to the
definition of Borrowings in Clause 1.1) (whether or not paid during or deferred
for payment after such period but excluding interest capitalised in accordance
with the Applicable Accounting Principles) adjusted to take account of any
amount constituting Interest receivable by any member or members of the PA Group
under interest rate and/or currency hedging agreements or instruments, LESS
Interest (other than Interest under interest rate and/or currency hedging
agreements or instruments already taken into account as aforesaid) accrued
during such period in favour of members of the PA Group from external sources,
all determined on a consolidated basis and (subject only as may be required in
order to reflect the express inclusion or exclusion of items as specified in
this definition) in accordance with the Applicable Accounting Principles and as
shown in the consolidated Accounts of the PA Group for such annual Accounting
Period or for the Accounting Periods falling within such period.
"DANGEROUS SUBSTANCE" means any radioactive emissions, noise, any natural or
artificial substance (whether in the form of a solid, liquid, gas or vapour) the
generation, transportation, storage, treatment, use or disposal of which
(whether alone or in combination with any other substance) including (without
limitation) any controlled, special, hazardous, toxic, radioactive or dangerous
substance or waste, gives rise to a risk of causing harm to man or any other
living organism or damaging the Environment or public health or welfare.
"DEBENTURE" means the mortgage debenture of even date herewith made between
Services, Finance, PA and the Security Agent as supplemented by any deeds of
accession or other instrument supplemental thereto.
"DEFAULT" means (a) any Event of Default or (b) any event which, with the giving
of notice and/or the expiry of any grace or cure period stated in any Finance
Document would be or become an Event of Default, provided that any such event
which by reason of express provisions in any Finance Document requires the
satisfaction of a condition as to materiality (including, without limitation,
the existence or absence of an opinion or determination as to materiality)
before it may become an Event of Default shall not be a Default unless that
condition is satisfied.
"DERIVATIVE TRANSACTIONS" means any rate swap transactions, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"DIRECTOR-GENERAL" means the person appointed from time to time by the Secretary
of State to hold office as the Director General of Electricity Supply for the
purpose of the Act.
"DIRECTOR GENERAL OF GAS SUPPLY" means the person appointed from time to time by
the Secretary of State to hold office as the Director General of Gas Supply for
the purpose of the Gas Act.
-11-
"DISTRIBUTIONS" bears the meaning given to that term in Clause 21.6.
"DISTRIBUTION BUSINESS" means the business of EE, or any successor undertaking
to that business within the PA Group, in or ancillary to the distribution
(whether for its own account or that of any other party) of electricity through
the distribution system of EE or, as the case may be, such successor and
includes any business providing connections to such distribution system.
"DOCUMENTARY CREDIT" means any letter of credit, guarantee or bond issued or to
be issued pursuant to Clause 5.4, in each case as varied from time to time.
"EE" means Eastern Electricity plc.
"ENCUMBRANCE" means any mortgage, pledge, lien, charge, assignment for the
purpose of providing security, hypothecation, security interest or other
arrangement having the effect of providing security (including, without
limitation, the deposit of monies or property with a person with the primary
intention of affording such person a right of set-off or lien as a form of
security).
"ENERGYCO" means PacifiCorp Energyco an unlimited company incorporated under the
laws of England and Wales (No. 3335442).
"ENERGYCO FACILITY AGREEMENT" means a credit agreement dated on or around the
date hereof between PacifiCorp Group Holdings Company, EnergyCo, the Lenders
named therein, Citibank, N.A. as paying agent, Citicorp USA, Inc. as collateral
agent and Citicorp Securities, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners, L.P. and
▇.▇. ▇▇▇▇▇▇ Securities Inc. as arrangers.
"ENERGYCO LENDERS" means the Lenders (as defined in the EnergyCo Facility
Agreement) from time to time.
"ENERGYCO/SERVICES LOAN AGREEMENT" means the loan arrangements entered into or
to be entered into between Services and EnergyCo pursuant to which EnergyCo
shall lend to Services an amount as more fully described in the Structure
Memorandum.
"ENVIRONMENT" means all, or any of, the following media, the air (including,
without limitation, the air within buildings and the air within other natural or
man-made structures above or below ground), water (including, without
limitation, ground and surface water) and land (including, without limitation,
surface and sub-surface soil).
"ENVIRONMENTAL CLAIM" means any claim by any person:
(a) in respect of any loss or liability suffered or incurred by that person as
a result of or in connection with any violation of Environmental Law; or
(b) that arises as a result of or in connection with Environmental
Contamination and that could give rise to any remedy or penalty (whether
interim or final) that may be enforced or assessed by private or public
legal action or administrative order or proceedings, including without
limitation
-12-
any such claim arising from injury to persons, property or natural
resources.
"ENVIRONMENTAL CONTAMINATION" means each of the following and their
consequences:
(a) any release, emission, leakage or spillage of any Dangerous Substance at or
from any site owned, occupied or used by any member of the Services Group
into any part of the Environment; or
(b) any accident, fire, explosion or sudden event at any site owned, occupied
or used by any member of the Services Group which is directly or indirectly
caused by or attributable to any Dangerous Substance; or
(c) any other pollution of the Environment.
"ENVIRONMENTAL LAW" means all applicable laws (including, without limitation,
common law), regulations, directing codes of practice, circulars, guidance
notices and the like having legal effect (whether in the United Kingdom or
elsewhere) concerning pollution or the protection of human health, the
Environment, the conditions of the work place or the generation, transportation,
storage, treatment or disposal of Dangerous Substances.
"ENVIRONMENTAL LICENCE" means any permit, licence, authorisation, consent or
other approval required by any Environmental Law.
"EVENT OF DEFAULT" means, subject to Clause 24.3, any of the events specified in
Clause 24.1.
"FACILITY" means:
(a) when designated "TRANCHE 1", the term loan facilities referred to in
Clauses 2.1(a) and (b), being divided into the Tranche 1A Facility
(referred in Clause 2.1(a)) and the Tranche 1B Facility (referred in Clause
2.1(b)), as indicated therein;
(b) when designated "TRANCHE 2", the revolving credit facility referred to in
Clause 2.1(c);
(c) without any such designation, the Tranche 1 Facility or the Tranche 2
Facility, as the context requires,
and "FACILITIES" means all of them.
"FACILITY OFFICE" in relation to a Bank means:
(a) the office of that Bank whose address appears under its name in the Second
Schedule or is specified for this purpose in the schedule to the
Substitution Certificate or in any other document by which such Bank became
party to or acquired rights under this Agreement; and/or
(b) any (and each) other office notified by that Bank to the Facility Agent in
accordance with Clause 30.6 as the office through which that Bank will
participate in the Facilities or any of them.
-13-
"FEE LETTERS" means the letters referred to in Clause 27.2.
"FINAL REPAYMENT DATE" means the fifth anniversary of the date hereof.
"FINANCE DOCUMENTS" means this Agreement and any Documentary Credit issued
hereunder, the Fee Letters, the Substitution Certificates, the Borrower
Accession Agreements, the Guarantor Accession Agreements, the Debenture, the
Hedging Documents, the Intercreditor Agreement, the EnergyCo/Services Loan
Agreement, the Services/Finance Loan Agreement, the PA Note and any other
document designated as such by the Facility Agent and Services.
"FINANCE PARTY" means each Arranger, each Bank, the LC Bank, the Security Agent
and the Facility Agent (together the "FINANCE PARTIES").
"FIXED DOLLAR EQUIVALENT" in relation to any amount denominated in Sterling
means the equivalent hereof in Dollars at an exchange rate as set out in a
letter between the Facility Agent and Services of even date.
"FIXED STERLING EQUIVALENT" in relation to any amount denominated in Dollars
means the equivalent thereof in Sterling at an exchange rate as set out in a
letter between the Facility Agent and Services of even date.
"GAS ACT" means the Gas ▇▇▇ ▇▇▇▇ (as amended by the Gas Act 1995).
"GAS FRAMEWORK AGREEMENT" means an agreement dated 1st March, 1996 and entered
into between British Gas Transco and Eastern Natural Gas (Retail) Limited.
"GENERATION BUSINESS" means the business of TEG and its Subsidiaries in or
ancillary to the generation (whether for its own account or that of any other
party) of electricity.
"GROUP" means:
(a) when designated "SERVICES", Services and its Subsidiaries from time to
time;
(b) when designated "PA", PA and its Subsidiaries from time to time;
(c) without such designation, the PA Group or the Services Group, as the
context so requires; and
(d) when designated "TEG", TEG and its Subsidiaries from time to time.
"GUARANTOR" means each of Services, Finance, PA and each Additional Guarantor.
"GUARANTOR ACCESSION AGREEMENT" means an agreement substantially in the form of
Part II of the Sixth Schedule made pursuant to Clause 19.2.
"HEDGING DOCUMENTS" means any and all interest rate swap and/or interest rate
cap and/or other interest
-14-
rate hedging agreements entered into or committed to be entered into by any
member of the PA Group in relation to the risk management of PA Group's floating
rate interest exposure as have been heretofore (and/or as may hereafter be)
agreed in writing between Services and the Facility Agent to constitute the
Hedging Documents, including without limitation, and whether or not so further
agreed in writing those contemplated by Clause 4.1(d).
"HOLDING COMPANY" means, in relation to a body corporate, any other body
corporate of which it is a Subsidiary.
"HYBRID PREFERRED SECURITIES" means any securities, permanent debt obligations
or similar instruments or arrangements (each in this definition referred to as
"preferred securities") issued by a Hybrid Preferred Securities Subsidiary,
where such preferred securities have the following characteristics:
(i) such Hybrid Preferred Securities Subsidiary lends substantially all of
the proceeds from the issuance of such preferred securities to a
member of the Services Group in exchange for Subordinated Debt issued
by a member of the Services Group;
(ii) such preferred securities contain terms providing for the deferral of
payments corresponding to provisions providing for the deferral of
interest payments on such Subordinated Debt; and
(iii) the relevant member of the Services Group makes periodic interest
payments on such Subordinated Debt, which interest payments are
in turn used by the Hybrid Preferred Securities Subsidiary to
make corresponding payments to the holders of the preferred
securities.
"HYBRID PREFERRED SECURITIES SUBSIDIARY" means any person (i) all of the common
equity interest of which is owned (either directly or indirectly) through one or
more wholly-owned members of the Services Group at all times, (ii) that has been
formed for the purpose of issuing Hybrid Preferred Securities, and (iii)
substantially all of the assets of which consist at all times of Subordinated
Debt issued by members of the Services Group and payments made from time to time
on such Subordinated Debt.
"INFORMATION MEMORANDUM" means an information memorandum relating to the
Services Group as, when and if agreed between Services and the Arrangers for use
in the syndication of the Facility.
"INTERCREDITOR AGREEMENT" means an agreement in the agreed form made or to be
made between Services, Finance, PA, the Subordinated Creditors, the Senior
Creditors, the Hedging Banks, the Facility Agent and the Security Agent (in each
case as defined therein).
"INTEREST" means:
(a) interest and amounts in the nature of interest accrued (including, without
limitation, the interest elements of finance leases and interest and
dividend payments accrued and any other regular payment, other than in
respect of principal or capital, accrued in respect of any Borrowing);
-15-
(b) prepayment penalties or premiums incurred in repaying or prepaying any
Borrowing;
(c) discount fees and acceptance fees payable or deducted in respect of any
Borrowing (including all fees payable in connection with any letter of
credit, guarantee or acceptance); and
(d) any other costs, expenses and deductions of the like effect and any net
payment (or, if appropriate in the context, minus any net receipt) under
any interest rate hedging agreement or instrument, taking into account any
premiums payable for the same and the interest element of any net payment
(or, if appropriate in the context, minus the interest element of any
receipt) under any currency hedging instrument or arrangement (plus or
minus any accrued exchange gains or losses with respect to such interest
element).
For the avoidance of doubt, "INTEREST" includes commitment, utilisation and non-
utilisation fees (including, without limitation, those payable hereunder) but
excludes agent's and front-end, management, arrangement and participation fees
with respect to any Borrowing (including, without limitation, those payable
hereunder) and includes any up-front premium or front-end fee payable pursuant
to any interest rate hedging agreement or instrument.
"INTEREST DATE" means, in relation to any Advance or any overdue amount, the
last day of an Interest Period relating thereto.
"INTEREST PERIOD" means, in relation to any Advance, each (or the) period
determined in accordance with Clause 10 or Clause 5.2(f) respectively, and, in
relation to any overdue amount, each period determined in accordance with Clause
11.3.
"LC BANK" means Citibank, N.A. and/or any other bank which becomes an LC Bank
pursuant to Clause 5.8.
"LIBOR" in relation to any Advance or overdue amount for any Interest Period
relative thereto, means:
(i) the annual rate of interest which appears on Telerate page 3750 or any
equivalent successor to such page, as appropriate (as determined by the
Facility Agent) (the "TELERATE SCREEN") at or about 11.00 a.m. (London
time) on (in the case of an Advance in Sterling) the first Business Day of
or (in the case of an Advance in an Optional Currency) the second Business
Day prior to the commencement of, such Interest Period, as being the
interest rate offered in the London Interbank Market (in the case of
Sterling) or London Interbank Eurocurrency Market (in the case of an
Optional Currency) for Sterling or such Optional Currency (as appropriate)
deposits for delivery on the first day of such Interest Period and for a
period comparable to such Interest Period; and
(ii) (if the relevant rate does not appear on the Telerate Screen for the
purposes of paragraph (i) or the Facility Agent determines that no rate for
a period of comparable duration to the relevant Interest Period appears on
the Telerate Screen), the arithmetic mean (rounded upwards, if necessary,
to four decimal places) of the respective rates, as supplied to the
Facility Agent at its request, quoted by the Reference Banks (or if there
is then only one Reference Bank, the rate quoted by that Reference Bank) to
leading banks in the ordinary course of business in the London Interbank
-16-
Market (in the case of an Advance denominated in Sterling) or London
Interbank Eurocurrency Market (in the case of an Advance denominated in an
Optional Currency) at or about 11.00 a.m. on (in the case of Sterling) the
first Business Day of or (in the case of an Advance denominated in an
Optional Currency) the second Business Day prior to the commencement of,
such Interest Period for the offering of deposits in Sterling or such
Optional Currency (as applicable) for a period comparable to its Interest
Period and in an amount comparable to the amount of such Advance, provided
that if any of the Reference Banks shall be unable or otherwise fails so to
supply such offered rate by 1.00 p.m. on the required date, "LIBOR" for the
relevant Interest Period shall be determined on the basis of the quotations
of the remaining Reference Banks.
"LICENCE" means any Public Electricity Supply Licence or Electricity Generation
Licence issued pursuant to Section 6(1) of the Act to a member of the Services
Group as modified or supplemented from time to time and if any such Licence is
split by or with the consent of the Director General into more than one new
licence, each of such new licences.
"LICENCEHOLDER"means at any time a member of the Services Group which then holds
a Licence.
"LICENCE UNDERTAKING" means any and each written undertaking or assurance given
in connection with the Offer by any one or more of Services, PA or TEG or any
Affiliate of any of them to the Director General or the Director General of Gas
Supply or the Secretary of State concerning the management and/or ownership of
and/or other matters concerning TEG or any other member of the TEG Group once it
has become a Subsidiary of Services.
"MAJORITY BANKS" means at any time:
(a) whilst no Utilisation is outstanding, a Bank or Banks the aggregate amount
of whose Commitments at the relevant time represents by value more than
sixty-six and two-thirds per cent. (662/3%) of the Total Commitments at
such time;
(b) if a Utilisation is then outstanding, a Bank or Banks the aggregate of
whose participations in the Utilisations and aggregate potential liability
under Utilisations outstanding at such time represents by value more than
sixty-six and two-thirds per cent. (662/3%) of the aggregate of all the
Utilisations and all the Outstanding Liability Amounts of all Utilisations
outstanding at such time;
provided that whilst the Original Banks are the only Banks, the term "MAJORITY
BANKS" shall mean all of the Banks together.
"MAJORITY OFFER BANKS" means at any time Banks the aggregate amount of whose
Commitments at the relevant time represents by value more than fifty per cent.
(50%) of the Total Commitments at such time, provided that such Banks include
all of the Original Banks.
"MARGIN" means one point three per cent (1.30%) per annum, provided that if at
any time after the date falling six months after the date of the first
Utilisation Date, the consolidated Accounts of the PA Group most recently
delivered to the Facility Agent (whether before or after that date) pursuant to
Clauses 21.2(a)(i) or 21.2(a)(ii) as the case may be, and the reports and
certificates relating thereto delivered
-17-
pursuant to Clause 21.2(a)(iii) or 21.2(a)(iv) (as the case may be) disclose
that the percentage of Consolidated Net Total Borrowings to the sum of Adjusted
Capital and Reserves and Consolidated Net Total Borrowings of the PA Group as at
the last day of the Accounting Period in respect of which such Accounts were
delivered is within the ratios set out in column 1 below:
(1) (2)
% Margin (p.a.)
(a) Greater than 75% 1.30%
(b) Equal to or less than 75% but
greater than 70% 1.10%
(c) Equal to or less than 70% but
greater than 65% 0.90%
(d) Equal to or less than 65% but
greater than 60% 0.70%
(e) Equal to or less than 60% 0.50%
then (subject as mentioned below), the Margin shall be the percentage per annum
set out in Column 2 above opposite such ratio, in each case during (but only
during) the period from (and including) the date on which the Facility Agent has
received the relevant Accounts pursuant to Clause 21.2(a)(i) and the reports and
certificates relating thereto pursuant to Clause 21.2(a)(iii) or has received
Accounts pursuant to Clause 21.2(a)(ii) and the certificates relating thereto
pursuant to Clause 21.2(a)(iv), as the case may be, until (but excluding) the
earlier of the following dates:
(a) the date on which the Facility Agent next receives the relevant Accounts
for an annual Accounting Period pursuant to Clause 21.2(a)(i) and a report
and certificates relating thereto pursuant to Clause 21.2(a)(iii);
(b) the date on which the Facility Agent receives the relevant Accounts for the
next succeeding quarterly Accounting Period of the PA Group pursuant to
Clause 21.2(a)(ii) and a certificate relating thereto pursuant to Clause
21.2(a)(iv);
(c) the latest date (the "LATEST DATE") by which the Facility Agent should have
received any such Accounts and certificates in accordance with the terms of
such Clauses where the Facility Agent has not received the same by such
date; and
(d) the date (falling on or after the first day of such period) on which the
Facility Agent gives notice pursuant to Clause 24.2 declaring that an Event
of Default has occurred,
-18-
Provided that:
(i) if the Margin has been reduced in reliance on unaudited Accounts (and
corresponding certificate) for the quarterly Accounting Periods in any
annual Accounting Period and the audited Accounts (and corresponding report
and certificate) do not justify that reduction, such reduction shall be
reversed with retrospective effect so that subject as provided in this
definition the Margin shall be that justified by the audited Accounts and
amounts calculated by reference to the reduced Margin (whether or not
already paid) shall be recalculated by reference to the Margin justified by
such audited Account; and
(ii) if the Margin has been increased as a result of the occurrence of (c) or
(d) above then upon the Facility Agent confirming in writing to the Banks
and Services that such Event of Default has been cured to the satisfaction
of the Banks (acting reasonably) then as at the date of such confirmation
the Margin shall be recalculated by reference to the Accounts and
certificate received in respect of the last quarterly Accounting Period
pursuant to Clauses 21.2(a)(ii) and 21.2(a)(iv), but such recalculation
shall not have any retrospective effect.
"MATCHING AMOUNT" means, with respect to any Tranche 1A Advance requested to be
made hereunder pursuant to a Request, an amount in cash to be lent by Powercoal
to PA on the terms of the PA Note equal to the Fixed Dollar Equivalent of the
Matching Amount Percentage of the Requested Amount for that Tranche 1A Advance.
"MATCHING AMOUNT PERCENTAGE" means, the percentage specified as such in a letter
between the Facility Agent and Services of even date (or such other percentage
as Services and the Facility Agent after consultation with the Banks may agree
in writing, provided that the Facility Agent shall not without the prior consent
of the Majority Banks agree any percentage which differs from that specified in
figures in the letter by more than 0.5).
"MATERIAL ADVERSE EFFECT" means any effect which is or is reasonably likely to
have:
(i) a material adverse effect on the ability of any Obligor which is also a
Material Subsidiary to perform its obligations under the Finance Documents
(taken as a whole); and/or
(ii) (where the context so admits) a material impairment of the ability of the
Obligors to perform their obligations under the Finance Documents to which
they are a party or a material impairment of the rights of or benefits
available to the Finance Parties under the Finance Documents
excluding in each case as a direct result of changes of price levels or pricing
in respect of the supply and/or distribution of electricity pursuant to the
terms of any Licence.
-19-
"MATERIAL SUBSIDIARY" means, at any time, each Obligor (other than Services)
and, on and from the Unconditional Date, each Licenceholder other than a
Licenceholder whose Licence relates solely to the generation of electricity,
together with:
(i) on and from the Unconditional Date until the date from which paragraph (ii)
below applies:
(a) TEG;
(b) EE;
(c) Eastern Merchant Property Limited;
(d) Eastern Power and Energy Trading Limited;
(e) Eastern Group Finance Limited;
(f) Eastern Merchant Generation Limited; or
(ii) (from the date on which the Facility Agent first receives Accounts pursuant
to Clause 21.2(a)(ii) and (vi)), any Subsidiary of PA (other than any
Project Finance Subsidiary):
(I) (A) whose profits before tax (on a consolidated basis if it has
Subsidiaries (excluding any profits from any Project Finance
Subsidiary) and for the latest period comprising an annual Accounting
Period of PA or four consecutive quarterly Accounting Periods of PA
(taken together as one period) for which consolidated Accounts of the
PA Group have been delivered to the Facility Agent) on ordinary
activities or (B) whose gross assets (excluding any attributable to
any Project Finance Subsidiary and excluding goodwill) represent 5% or
more of the consolidated profits before tax (excluding any profits
from any Project Finance Subsidiary) on ordinary activities of the PA
Group for such period or, as the case may be, consolidated gross
assets (excluding any attributable to any Project Finance Subsidiary
and excluding goodwill) of the PA Group, in each case as calculated by
reference to the latest consolidated Accounts of the PA Group
delivered to the Facility Agent adjusted in such manner as the
auditors of PA may determine (which determination shall be conclusive
in the absence of manifest error) to reflect the profits (or losses)
before tax (excluding any profits from any Project Finance Subsidiary)
on ordinary activities and consolidated gross assets (excluding any
attributable to any Project Finance Subsidiary and excluding goodwill)
of any person which has become or ceased to be a member of the PA
Group since the end of the financial period to which the latest
financial statements of the PA Group relate; or
(II) to which is transferred (after the end of the financial period to
which the latest consolidated financial statements of the PA Group
relate) all or substantially all of the business, undertaking or
assets of a Subsidiary which immediately prior to such transfer is a
Material Subsidiary whereupon the transferor Subsidiary shall cease to
be a Material
-20-
Subsidiary under this sub-Clause (ii) upon the completion of such
transfer.
"MODEL" means the economic projections and base assumptions concerning the PA
Group prepared by PacifiCorp in the agreed form.
"NEGATIVE TERMINATION AMOUNT" means, with respect to any arrangement falling
within paragraph (f) of the definition of Borrowing in Clause 1.1., the amount
(if any) that would be required to be paid by the relevant member of the PA
Group if such arrangement were terminated by reason of a default by it or other
termination event relating to the arrangement. The Negative Termination Amount
of any such arrangement at any date shall be determined (a) as of the end of the
most recent quarterly Accounting Period for which accounts have been delivered
pursuant to Clause 21.2 if such arrangement was then outstanding or (b) as at
the date such arrangement is entered into if it is entered into after the end of
such quarterly Accounting Period; Provided, however, that if an agreement
between the member of the PA Group and the relevant counterparty provides that,
upon any such termination by such counterparty, one or more other arrangements
falling within paragraph (f) of the definition of Borrowing in Clause 1.1 (if
any then exist) between such member of the PA Group and such counterparty would
also terminate and the amount (if any) payable by such member of the PA Group
would be a net amount reflecting the termination of all arrangements falling
within paragraph (f) of the definition of Borrowing in Clause 1.1 so terminated,
then the Negative Termination Amount of all such arrangements subject to such
netting shall be, at any date, a single amount equal to such net amount (if any)
payable by the member of the PA Group determined as of the later of (a) the end
of the most recent quarterly Accounting Period for which accounts have been
delivered pursuant to Clause 21.2 or (b) the date on which the most recent
arrangement subject to such netting was entered into.
"NET PROCEEDS" means:
(a) the consideration received by any member of the Services Group (other than
a Project Finance Subsidiary) in respect of the disposal to any person who
is not a member of the Services Group of all or any part of its business,
undertaking or assets (including the amount of any intercompany debt repaid
to continuing members of the Group other than a Project Finance
Subsidiary), net of all Taxes applicable on, or to any gain resulting from,
the disposal and of all reasonable costs, fees and expenses incurred by
members of the Services Group in arranging and effecting that disposal;
(b) the proceeds of any equity subscription in the capital of Services made
after the date hereof and not otherwise contemplated in the Structure
Memorandum (other than any equity subscription made by EnergyCo to the
extent permitted by Clause 21.6(e)); and/or
(c) the proceeds of any claim for loss or destruction of or damage to the
property of a member of the Services Group (other than a Project Finance
Subsidiary) made by a member of the Services Group (other than a Project
Finance Subsidiary) under any insurance policy save where Services notifies
the Facility Agent in writing that such proceeds are to be applied in
reinstating the property concerned or purchasing like replacement property,
Provided that to the extent such consideration is received by the relevant
member of the Services Group
-21-
other than in cash, the Net Proceeds in respect of such consideration shall be
deemed to arise on the date on which that consideration is converted into cash.
"NET TERMINATION VALUE" shall mean with respect to all Derivative Transactions
(other than any Hedging Documents, any form of energy related Derivative
Transaction and any hedging agreement that is designed and used solely to
protect the Borrower against fluctuations in currency exchange rates and not for
speculation), the difference between (a) the aggregate amounts (if any) that
would be required to be paid by any member of the PA Group if such Derivative
Transactions were terminated by reason of a default relating to any member of
the PA Group, and (b) the aggregate amounts (if any) that any member of the PA
Group would be entitled to receive if such Derivative Transactions were
terminated by reason of a default relating to any member of the PA Group. The
Net Termination Value shall be determined (a) as of the end of the most recent
quarterly Accounting Period ended on or prior to such date if such Derivative
Transaction was then outstanding or (b) as of the date such Derivative
Transaction is entered into if it is entered into after the end of such fiscal
quarter.
"NETWORK CODE" means the Network Code Principal Document dated 1st March, 1996
(as modified from time to time).
"OBLIGOR" means each Borrower and each Guarantor.
"OFFER" means the offer for the Shares to be made by ▇▇▇▇▇▇▇ ▇▇▇▇▇ International
on behalf of PA substantially on the terms and conditions referred to in the
Press Release, as the same may be amended, varied, renewed or waived in
compliance with Clause 22 (other than Clause 22(a)(i)(C), (ii) or (iii) or
22(d)).
"OFFER ACCOUNT" means the account in the name of PA opened with Citibank, N.A.
on or before the Unconditional Date for the purposes of effecting the
acquisition of the Shares.
"OFFER COSTS" means all banking, brokerage, foreign exchange hedging,
accounting, legal, public relations and other fees and commissions,
out-of-pocket costs and expenses and stamp, registration, transfer and similar
taxes incurred by or on behalf of Services or any Subsidiary thereof (including
any member of the TEG Group which becomes such a Subsidiary pursuant to the
Offer) in connection with the negotiation, preparation, execution and
implementation of the Transaction Documents or otherwise in connection with the
Offer (including any refinancing referred to in Clause 3.1(a)(ii)).
"OFFER DOCUMENT" means the document to be delivered to the shareholders of TEG
containing the formal Offer.
"OFFER TERMINATION DATE" means the earliest date (as notified by PA to the
Facility Agent in writing) on which all of the following have occurred:
(a) all payments in respect of acceptances of the cash alternative in the Offer
have been made in full;
(b) no further such acceptances are possible; and
-22-
(c) all procedures pursuant to section 428 et seq. Companies ▇▇▇ ▇▇▇▇ which are
capable of being implemented have been completed and all payments pursuant
thereto to shareholders in TEG have been made in full.
"OPEN MARKET SHARES" means the shares (if any) in the capital of TEG purchased
by PGH (or any Affiliate thereof) prior to the Unconditional Date (including any
such shares represented by TEG's American Depositary Shares).
"OPTIONAL CURRENCY" means any freely available and transferable eurocurrency.
"OPTION SCHEMES" means any employee share save or share option scheme, long term
incentive plan, employee benefit trust, savings plan or other employee share
scheme of TEG or any of its Subsidiaries as in effect at the Unconditional Date.
"OPTIONHOLDERS" means holders for the time being of options issued under or
participants in or beneficiaries under any of the Option Schemes.
"ORIGINAL STERLING AMOUNT" means in relation to any amount:
(a) (if denominated in Sterling) the principal amount which is, or is to be
outstanding, drawn or issued; or
(b) (if denominated in an Optional Currency) the Sterling Equivalent of the
principal amount which is, or is to be outstanding, drawn or issued,
calculated, in the case of an Advance, three Business Days prior to the
Utilisation Date for that Utilisation and in the case of a Documentary
Credit, on the Utilisation Date for that Utilisation.
"OUTSTANDING LIABILITY AMOUNT" in relation to any Documentary Credit at any time
means the maximum amount for which the LC Bank or the Banks, as the case may be,
could be actually and/or contingently liable thereunder less the aggregate of
(i) all amounts thereof repaid or prepaid hereunder and (ii) all amounts (if
any) paid out by the LC Bank (or the Banks) thereunder for which the LC Bank
and/or the Banks have been reimbursed by the Obligors (whether or not out of the
proceeds of a Tranche 2 Advance).
"PA NOTE" means the loan note issued or to be issued by PA to Powercoal in the
agreed form as contemplated by the Structure Memorandum evidencing the
Powercoal/PA Loan.
"PA/PEABODY NOTE" means the loan note evidencing the debt owed by PA to Peabody
Global or Peabody Investments incurred pursuant to the Asset Split.
"PACIFICORP" means PacifiCorp, an Oregon corporation incorporated on 11 August
1987.
"PANEL" means The Panel on Takeovers and Mergers.
"PEABODY GLOBAL" means Peabody Global Investments, Inc., a Delaware corporation.
-23-
"PEABODY HOLDINGS" means Peabody Holding Company Inc., a New York corporation,
and each of its subsidiaries.
"PEABODY INVESTMENTS" means Peabody Investments Inc., a Delaware corporation.
"PEABODY GROUP" means Citizens and Peabody Holdings.
"PGH" means PacifiCorp Group Holdings Company, a Delaware corporation
incorporated on 3 July 1984 (formerly known as PacifiCorp Holdings, Inc.)
"POOLING AND SETTLEMENT AGREEMENT" means an agreement dated 30th March, 1990
made by TEG with the National Grid Company plc and others setting out the rules
and procedures for the operation of an electricity trading pool and of a
settlement system (and, while the same has effect, the "INITIAL SETTLEMENT
AGREEMENT" also dated 30th March, 1990 and made between the same parties), as
amended from time to time.
"POWERCOAL" means PacifiCorp Powercoal LLC, a limited liability company
organised on 10 June 1997 under the laws of Oregon.
"POWERCOAL FACILITY AGREEMENT" means a credit agreement dated on or around the
date hereof between Powercoal, the Lenders (as defined therein), Citibank, N.A.
as paying agent, swingline lender and issuing bank and Citicorp USA Inc. as
collateral agent.
"POWERCOAL INTERCREDITOR AGREEMENT" means an agreement in the agreed form
entered into by certain of the parties hereto and certain of the parties to the
Powercoal Facility Agreement.
"POWERCOAL LENDERS" means the Lenders (as defined in the Powercoal Facility
Agreement) from time to time.
"POWERCOAL LOAN" means, at any time, all amounts outstanding at that time upon
and subject to the terms of the Powercoal Facility Agreement.
"POWERCOAL/PA LOAN" means the loan made by Powercoal to PA from funds advanced
to Powercoal under the Powercoal Facility Agreement to assist PA in funding its
purchase of the Shares pursuant to the Offer.
"PRESS RELEASE" means the agreed form of press release by which the Offer is
announced.
"PROJECT FINANCE BORROWINGS" means any indebtedness of a type referred to in any
of paragraphs (a)-(g) of the definition of "Borrowing" in this Clause 1.1 which
finances or otherwise relates to the acquisition, development, ownership and/or
operation of an asset or combination of assets whether directly or indirectly:
(a) which is incurred by a Project Finance Subsidiary; or
-24-
(b) in respect of which the person or persons to whom such Borrowing is or may
be owed by the relevant debtor (whether or not a member of the PA Group)
has or have no recourse whatsoever to any member of the PA Group (other
than to a Project Finance Subsidiary) for the repayment thereof other than:
(i) recourse to such debtor for amounts limited to the cash flow or net
cash flow (other than historic cash flow or historic net cash flow)
from such asset or assets; and/or
(ii) recourse to such debtor for the purpose only of enabling amounts to
be claimed in respect of such Borrowing in an enforcement of any
Encumbrance given by such debtor over such asset or assets or the
income, cash flow or other proceeds deriving therefrom (or given by
any shareholder or the like in the debtor over its shares or like
interest in the capital of the debtor) to secure such Borrowing or
to secure any recourse referred to in (iii) below, Provided that
(I) the extent of such recourse to such debtor is limited solely to
the amount of any recoveries made on any such enforcement, and (II)
such person or persons are not entitled, by virtue of any right or
claim arising out of or in connection with such Borrowing, to
commence proceedings for the winding up or dissolution of the
debtor or to appoint or procure the appointment of any receiver,
trustee or similar person or officer in respect of the debtor or
any of its assets (save only for the assets the subject of such
Encumbrance); and/or
(iii) recourse (I) to such debtor generally, or directly or indirectly to
a member of the PA Group, under any form of assurance, undertaking
or support, which recourse is limited to a claim for damages (other
than liquidated damages and damages required to be calculated in a
specific way) for breach of an obligation (not being a payment
obligation or an obligation to procure payment by another or an
indemnity in respect thereof or any obligation to comply or procure
compliance by another with any financial ratios or other tests of
financial condition) by the person against whom such recourse is
available; and/or (II) to shares and/or any other ownership
interest in or loans to and/or the assets of such debtor and/or any
Project Finance Subsidiary owned by a member of the Services Group.
"PROJECT FINANCE SUBSIDIARY" means any person:
(a) whose principal assets and business are constituted by the ownership,
acquisition, development and/or operation of any asset or combination of
assets whether directly or indirectly;
(b) none of whose Borrowings in respect of the financing of the ownership,
acquisition, development and/or operation of any such asset benefits from
any recourse whatsoever to any member of the Services Group (other than
such person or another Project Finance Subsidiary) in respect of the
repayment thereof, except as expressly referred to in paragraph (b)(iii) of
the definition of "Project Finance Borrowings" in this Clause 1.1; and
(c) which has been designated as such by Services or a Subsidiary of Services
by written notice to the Facility Agent provided that Services or a
Subsidiary of Services may give written notice to the
-25-
Facility Agent at any time that any Project Finance Subsidiary is no longer
a Project Finance Subsidiary, whereupon it shall cease to be a Project
Finance Subsidiary.
"RECOGNISED BANK" means at any time a person which:
(a) is a bank as defined in Section 840A of the Income and Corporation Taxes
Act 1988 (or any statutory re-enactment or modification thereof, in
substantially the same form and content as at the date hereof) which is
beneficially entitled to and within the charge to United Kingdom
corporation tax as regards any interest received by it under this
Agreement; or
(b) if at any time Section 349 or Section 840A of the Income and Corporation
Taxes Act 1988 (or a statutory re-enactment or modification thereof, in
substantially the same form and context as at the date hereof) shall not be
in full force and effect, is either (where no amendment to this definition
is agreed with the intention of restoring the economic position of the
parties hereunder as regards the applicability of United Kingdom
withholding taxes) a bank carrying on through its Facility Office a bona
fide banking business in the United Kingdom which is beneficially entitled
to and is within the charge to United Kingdom corporation tax as regards
any interest payable or paid to it under this Agreement or (if such an
amendment is agreed) a bank qualifying for the purposes of any replacement
tax legislation so that interest hereunder may be paid to it without
deduction of United Kingdom income tax; or
(c) is acting from outside the United Kingdom and is resident (as defined in
the appropriate double taxation treaty) in a jurisdiction outside the
United Kingdom with which, at the time it becomes a party to this
Agreement, the United Kingdom has an appropriate double taxation treaty and
at such time such treaty provides under its terms for complete exemption
from United Kingdom income tax on United Kingdom source interest for an
entity such as itself when acting through the branch through which it is
acting for the purposes of this Agreement, and such entity has made at the
date on which it becomes a Bank hereunder the appropriate application to
the appropriate tax authority under such treaty for such exemption (such
entity being referred to herein as a "TREATY BANK").
"RECONCILIATION STATEMENT" in respect of any Accounts, means a statement signed
(in respect of audited consolidated Annual Accounts) by the Auditors or, (in
respect of unaudited consolidated quarterly Accounts) the Chief Financial
Officer describing (a) any changes which would be required to be made to such
Accounts and the treatment of any item therein (including, without limitation
any necessary change in the treatment of goodwill) to conform such Accounts to
the Applicable Accounting Principles and setting out the effects of such changes
(if any) on the items therein, and (b) any departure from the Applicable
Accounting Principles in the preparation of such Accounts and either stating
that such departure has not altered any of the numerical information required
for the purpose of establishing whether or not PA is in compliance with its
obligations under Clause 23.1 or (if it has altered such information) setting
out the effects of such alteration in reasonable detail.
"REFERENCE BANKS" means the principal London offices of Citibank, N.A. and
▇▇▇▇▇▇ Guaranty Trust Company of New York and/or of such other Banks (if any) as
may become Reference Banks pursuant to Clause 30.5.
-26-
"REFINANCING DEBT" means all Borrowings or obligations set out in the Borrowings
List which are indicated on that list as being likely to be in default as at the
Unconditional Date or thereafter as a result of the consummation of those
matters and things contemplated by the Transaction Documents (or any of them)
occurring or which PA has indicated on that list may be refinanced in accordance
with the provisions of Clause 21.9.
"RENT FACTORING AGREEMENT" means the Deed of Assignment of Rents dated 28th
October 1996 made between Eastern Merchant Properties Limited, Eastern Group
Finance Limited, certain banks and Barclays Bank PLC (as agent).
"REQUEST" means a request, substantially in the form of the Third Schedule (as
appropriate), made by a Borrower to the Facility Agent for a Utilisation.
"RESERVATIONS" means the qualifications and reservations set out in the Ninth
Schedule.
"ROLLOVER ADVANCE" bears the meaning given to that term in Clause 4.3(a).
"SECRETARY OF STATE" means the Secretary of State as referred to in the Act.
"SECURITY DOCUMENTS" means the Debenture of even date herewith executed by
Finance, Services and PA, together with such other documents (if any) as may be
required to be entered into by any Obligor pursuant to the terms of any Finance
Documents.
"SENIOR CREDITOR" has the meaning given to it in the Intercreditor Agreement.
"SERVICES/FINANCE LOAN AGREEMENT" means the loan arrangements entered into or to
be entered into between Services and Finance pursuant to which Services shall
lend to Finance Subordinated Debt as more fully referred to in the Structure
Memorandum.
"SHARES" means existing unconditionally allotted or issued and fully paid shares
in TEG and any further shares in TEG which are unconditionally allotted or
issued before the date on which the Offer ceases to be open for acceptances (or
such earlier date as Services and the Banks may, subject to the Code, agree)
upon the exercise of any options granted under the Option Schemes or otherwise
including any such shares represented by TEG's American Depositary Shares.
"STERLING" and "L" means the lawful currency for the time being of the United
Kingdom.
"STERLING EQUIVALENT" means, in relation to an amount expressed or denominated
in an Optional Currency, the equivalent thereof in Sterling converted at the
Agent's Spot Rate of Exchange on the date of the relevant calculation (and if
used in relation to an amount expressed or denominated in Sterling, such
amount).
"STRUCTURE MEMORANDUM" means the memorandum in the agreed form entitled
"Financing the Acquisition of The Energy Group PLC" prepared by Stoel Rives
L.L.P..
-27-
"SUBORDINATED CREDITOR" bears the meaning given to that term in the
Intercreditor Agreement.
"SUBORDINATED DEBT" means:
(i) the PA Note;
(ii) any unsecured loans to Services or Finance or by Services or Finance to PA
which in each case (a) have a maturity falling after the Final Repayment
Date, (b) are not capable of acceleration whilst any amount of principal,
interest, fees or breakage costs may be or become payable by any member of
the PA Group hereunder or any of the Commitments remain in effect and (c)
are subordinated (as regards priority of payment, ranking, rights of
enforcement and all other rights) as to principal, interest and all other
amounts payable on or in respect thereof and any and all claims (including
for damages) related thereto, to all amounts which may be or become payable
by the member of the PA Group to any Finance Party under the Finance
Documents on the terms set out in the Intercreditor Agreement; and
(iii) any unsecured loan to PA, EE or a Hybrid Preferred Securities
Subsidiary that has:
(a) no principal payments due on a date that is earlier than twenty-four
months after the Final Repayment Date,
(b) provisions permitting the borrower thereof to defer the payment of
interest in certain circumstances,
(c) a fixed interest rate which, in the good faith judgment of the Chief
Financial Officer of PA, is consistent with the market at the time of
issuance for similar loans, and
(d) subordination provisions that are reasonably satisfactory to the
Majority Banks,
and any securities (and any guarantee by PA, EE or that Hybrid Preferred
Securities Subsidiary of any securities) issued in connection with that
loan.
"SUBSIDIARY" means:
(a) a subsidiary as defined in Section 736 of the Companies ▇▇▇ ▇▇▇▇, as
amended (and "WHOLLY OWNED SUBSIDIARY" shall have the meaning ascribed
thereto in such Section); and
(b) a subsidiary undertaking as defined in Section 258 of the Companies ▇▇▇
▇▇▇▇, as amended or, in either case, any statutory re-enactment or
replacement thereof,
but, in each case, shall exclude any member of the Peabody Group.
"SUBSTITUTION CERTIFICATE" has the meaning ascribed to it in Clause 30.4
(together the "SUBSTITUTION CERTIFICATES"), and references to "SUBSTITUTES"
shall be construed as references to persons becoming party
-28-
to this Agreement pursuant to Substitution Certificates.
"SYNDICATION DATE" means the earlier of the date specified by the Facility Agent
as the date on which primary syndication of the Facilities is completed and the
date falling 6 months after the Unconditional Date.
"TAXES" means all income and other taxes and levies, imposts, duties, charges,
deductions and withholdings in the nature or on account of tax together with
interest thereon and penalties with respect thereto, if any, and any payments
made on or in respect thereof, and "TAX" and "TAXATION" shall be construed
accordingly.
"TAX SHARING AGREEMENT" means an Agreement in agreed form made or to be made
between EnergyCo and members of the PA Group relating to the surrender of UK
Corporation tax for group relief purposes.
"TEG" means The Energy Group PLC a company incorporated under the laws of
England and Wales.
"TOTAL COMMITMENTS" means at any time the aggregate amount of the Commitments of
the Banks at such time.
"TRANSACTION DOCUMENTS" means the Finance Documents and when executed the Tax
Sharing Agreement.
"TREATY BANK" is defined in the definition of Recognised Bank.
"UNCONDITIONAL DATE" means the date upon which the Offer becomes or is declared
unconditional in all respects without any breach of Clause 22 (other than Clause
22(a)(i)(C), (ii) or (iii) or 22(d)).
"US DOLLARS" and "$" means the lawful currency for the time being of the United
States of America.
"UTILISATION" means a utilisation of a Facility under this Agreement, being,
when designated "TRANCHE 1", a utilisation of the Tranche 1 Facility and when
designated "TRANCHE 2", a utilisation of the Tranche 2 Facility.
"UTILISATION DATE" means in relation to each Utilisation, the date specified as
such in the relative Request therefor or, on and after the making and/or issue
thereof pursuant to such Request, the date on which it was made and/or issued.
"WAIVER LETTER" means any letter or other document setting out the terms (if
any) upon which (a) compliance with any provision of any Finance Document is
waived, or (b) any amendment to or variation of or departure from the terms of
any Finance Document is approved, or (c) any consent or approval required or
requested to be given is given, in each case by the Facility Agent with the
agreement of the Majority Banks or if so required by the terms of this Agreement
or any other Finance Document, Majority Offer Banks or all of the Banks.
-29-
1.2 CONSTRUCTION In this Agreement, save where the context otherwise requires:
(a) references to documents being in the "AGREED FORM" means documents
either (i) substantially in a form previously agreed in writing by or
on behalf of the Facility Agent and Services, or (ii) substantially in
a form initialled by or on behalf of Services and the Facility Agent
on or prior to the date hereof for the purposes of identification, or
(iii) in a form substantially as set out in any Schedule to any
Finance Document, or (iv) with respect only to the Offer Document, in
a form which reflects and is consistent in all material respects with
the terms of the Press Release, or (v) (if not falling within (i) to
(iv) above) in form and substance satisfactory to the Original Banks
acting reasonably provided that a reference to the Press Release being
in the "AGREED FORM" shall mean the Press Release in form and
substance satisfactory to the Original Banks acting reasonably;
(b) references to "ASSETS" shall include revenues and the right thereto
and property and rights of every kind, present, future and contingent
and whether tangible or intangible (including uncalled share capital)
references to "SHARES" shall include stock;
(c) the expressions "HEREOF", "HEREIN", "HEREUNDER" and similar
expressions shall be construed as references to this Agreement as a
whole (including all Schedules) and shall not be limited to the
particular Clause or provision in which the relevant expression
appears, and references to "THIS AGREEMENT" and all like indications
shall include references to this Agreement as supplemented by the
Borrower Accession Agreements, Guarantor Accession Agreements, the
Substitution Certificates, the Waiver Letters and any other agreement
or instrument supplementing or amending this Agreement;
(d) references to "INDEBTEDNESS" shall be construed so as to include any
obligation or liability (whether present or future, actual or
contingent) for the payment, repayment or redemption of any obligation
expressed by reference to monetary value or quantity or value of
commodities (whether such obligation is performable by the payment of
money or in some other way);
(e) references to a "PERSON" shall be construed as a reference to any
person, firm, company, corporation, government, state or agency of a
state or any association or partnership (whether or not having
separate legal personality) of two or more of the foregoing;
(f) references to any of the Transaction Documents and any other agreement
or instrument shall be construed as a reference to the same as
amended, varied, supplemented or novated from time to time (including,
where relevant, by any Borrower Accession Agreement and/or Guarantor
Accession Agreement and/or Substitution Certificate);
(g) unless otherwise specified, references to Clauses and Schedules are
references to, respectively, clauses of and schedules to this
Agreement;
(h) words importing the singular shall include the plural and vice versa;
-30-
(i) references (by whatever term, including by name) to Services, PA, TEG,
each Obligor, the Arrangers, each Bank, the LC Bank, each Reference
Bank, the Facility Agent, the Security Agent, or any other person
referred to in this Agreement shall, where relevant and subject as
otherwise provided in this Agreement, be deemed to be references to or
to include, as appropriate, their respective successors, replacements
and assigns, transferees and substitutes permitted by the terms of the
relevant Finance Documents (including any person into or with which
any other person is merged or consolidated, whether by winding-up or
otherwise and, where relevant, as permitted by Clause 21.10(b));
(j) reference to a time of day is, unless otherwise stated, a reference to
London time and references to a "MONTH" are references to a period
starting on a particular day in a calendar month and ending on the
numerically corresponding day in the next calendar month provided that
if a period starts on the last day in a calendar month or if there is
no numerically corresponding day in the month in which the relevant
period ends, that period shall, save as otherwise provided in this
Agreement, end on the last day in such later month (and references to
"MONTHS" shall be construed accordingly);
(k) the contents page of, and headings in, this Agreement are for
convenience only and shall be ignored in construing this Agreement;
(l) all references to statutes and other legislation include all
re-enactments and amendments of those statutes and that legislation;
(m) an outstanding Documentary Credit is "REPAID" or "PREPAID" by
providing (in accordance with the terms hereof) cash cover therefor in
the same currency as that in which such Documentary Credit is
denominated or expressed to be payable, by reducing (in accordance
with the terms hereof) the Outstanding Liability Amount of such
Documentary Credit or by cancelling such Documentary Credit and
returning the original to the LC Bank or the Facility Agent on behalf
of the Banks or providing other evidence (in form and substance
satisfactory to the LC Bank or, as the case may be, Facility Agent)
that no further liability exists thereunder; references to
Utilisations being repaid or prepaid are to be construed accordingly
insofar as those Utilisations involve Documentary Credits;
(n) an amount "OUTSTANDING" at any time under or in respect of a
Documentary Credit (or the "PRINCIPAL AMOUNT" thereof at any time) is
the Outstanding Liability Amount of such a Documentary Credit and a
"DRAWING" under the Tranche 2 Facility includes the issue of a
Documentary Credit and each provision of this Agreement which contains
reference to the concepts contained in this paragraph (n) shall be
construed accordingly;
(o) any reference to "CERTIFICATE", "CERTIFICATION" (or any like term) in
relation to an amount shall be a reference to a certificate containing
such detail as is reasonably necessary in order to determine how such
amount was calculated; and
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(p) any reference to a document being "CERTIFIED" means a document
certified by an Authorised Signatory of the party providing the
document, or by lawyers acting on his behalf, as being genuine and in
full force and effect and, if a copy, a true and complete copy of the
original.
1.3 ECONOMIC AND MONETARY UNION DEFINITIONS In the Eleventh Schedule and in
any other provision of this Agreement to which reference is made in the Eleventh
Schedule expressly or impliedly, the following terms have the following
meanings.
"COMMENCEMENT OF THE THIRD STAGE OF EMU" means commencement of the third stage
of EMU as contemplated by the Treaty on European Union or circumstances which
(in the opinion of the Majority Banks, acting reasonably) have substantially
the same effect and result in substantially the same consequences.
"EMU" means Economic and Monetary Union as contemplated in the Treaty on
European Union.
"EMU LEGISLATION" means legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European
currency (whether known as the euro or otherwise), being in part the
implementation of the third stage of EMU.
"EURO" means the single currency of participating member states of the European
Union.
"EURO UNIT" means the currency unit of the euro.
"NATIONAL CURRENCY UNIT" means the unit of currency (other than a euro unit) of
a participating member state.
"PARTICIPATING MEMBER STATE" means each state so described in any EMU
legislation.
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of 25 March 1957, as amended
by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty (which was signed at
Maastricht on 1 February 1992 and came into force on 1 November 1993) and as
further amended from time to time.
2. FACILITIES AND RELATED MATTERS
2.1 FACILITIES Subject to the terms of this Agreement, and in reliance upon
the representations and warranties set out in Clause 20.1 as repeated from time
to time pursuant to Clause 20.2, the ▇▇▇▇▇ ▇▇▇▇▇ to the relevant Borrowers the
following facilities:
(a) TRANCHE 1A FACILITY a term loan facility whereby, subject as
aforesaid, the Banks, when requested by PA and/or (after becoming a
Borrower hereunder pursuant to a Borrower Accession Agreement) TEG or
any of TEG's Subsidiaries pursuant to a Request, will make Tranche 1A
Advances denominated in Sterling to PA, TEG or any of TEG's
Subsidiaries (as the case may be) during the Tranche 1 Availability
Period in an aggregate principal amount not exceeding the aggregate
Tranche 1A Commitments;
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(b) TRANCHE 1B FACILITY a term loan facility whereby, subject as
aforesaid, the Banks, when requested by PA and/or (after becoming a
Borrower hereunder pursuant to a Borrower Accession Agreement) TEG or
any of TEG's Subsidiaries pursuant to a Request will make Tranche 1B
Advances denominated in Sterling to PA, TEG or any of TEG's
Subsidiaries (as the case may be) during the Tranche 1 Availability
Period in an aggregate principal amount not exceeding the aggregate
Tranche 1B Commitments; and
(c) TRANCHE 2 FACILITY a revolving credit facility whereby, subject as
aforesaid, the Banks, when requested by a Borrower pursuant to a
Request, during the Tranche 2 Availability Period will make to the
Borrower specified in or giving such Request Tranche 2 Advances or
issue, or procure the LC Bank to issue for the account of such
Borrower, Documentary Credits denominated in Sterling and/or an
Optional Currency or Optional Currencies up to an aggregate principal
amount not exceeding at any one time the Original Sterling Amount
equal to the aggregate Tranche 2 Commitments at such time.
2.2 LIMITATIONS Subject to the terms of this Agreement unless otherwise agreed
by the Facility Agent and the Banks:
(a) no Utilisation of any Facility may be made before the Unconditional
Date;
(b) Tranche 1A Utilisations may be made only by PA and/or (upon it
becoming a Borrower pursuant to a Borrower Accession Agreement) TEG or
any Subsidiary of TEG;
(c) Tranche 1B Utilisations may be made only by PA and/or (upon it
becoming a Borrower pursuant to a Borrower Accession Agreement) TEG or
any Subsidiary of TEG;
(d) without prejudice to the provisions of Clause 10.4(d), PA will use its
reasonable endeavours to ensure that the number of additional
Utilisations shall be controlled and that no more than 20 Tranche 1A
and 10 Tranche 1B Utilisations are made;
(e) the aggregate Original Sterling Amount of the outstanding Tranche 2
Utilisations at any time may not exceed the Tranche 2 Commitments then
in effect; and
(f) no Tranche 2 Utilisation may be made before there has been (or unless
there is on the same day occurring) a drawing of the Tranche 1
Commitments and no more than 10 Tranche 2 Advances may be outstanding
at any time.
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2.3 NATURE OF THE BANKS' RIGHTS AND OBLIGATIONS HEREUNDER
(a) BANKS' COMMITMENTS No Bank is obliged to participate in the making of
any Utilisation (i) in the case of a Tranche 1 Advance, in an amount
exceeding its undrawn Tranche 1 Commitment, and (ii) in the case of a
Tranche 2 Utilisation, if to do so would cause the aggregate of the
Original Sterling Amounts of its participations in the Tranche 2
Utilisations outstanding under this Agreement to exceed its Tranche 2
Commitment (provided that for the purpose of this Clause 2.3(a) its
participation in an outstanding Documentary Credit issued by the LC
Bank shall be its maximum potential liability under Clause 5.6 in
respect of such Documentary Credit).
(b) OBLIGATIONS SEVERAL The obligations of each Finance Party under the
Finance Documents are several. The failure of a Finance Party to
carry out its obligations under this Agreement shall not relieve any
other party of its obligations under any Finance Document. No Finance
Party shall be responsible for the obligations of any other Finance
Party under the Finance Documents.
(c) AGENTS NOT RESPONSIBLE The Facility Agent and the Security Agent, in
their capacities as such, shall not be responsible for the
non-performance by any Bank of its obligations under this Agreement.
(d) RIGHTS SEVERAL The obligations of each Obligor to the Finance Parties
under the Finance Documents are owed to each of them as separate and
independent obligations. Each Finance Party may, except as otherwise
stated herein, separately enforce its rights hereunder without joining
in any other Finance Party.
2.4 NATURE OF BORROWERS' RIGHTS AND OBLIGATIONS HEREUNDER
(a) RIGHTS AND OBLIGATIONS The obligations of the Borrowers under this
Agreement in their capacities as such shall be separate and
independent and not joint and several, and PA and not the other
Borrowers (save in their capacities as Guarantors) shall be liable
for:
(i) payment of all amounts becoming due under Clause 15 to the extent
that such amounts are not referable to Utilisations made by or to
monies received or receivable from a particular Borrower or are
not otherwise in the reasonable opinion of the Facility Agent
referable to a particular Borrower; and
(ii) payment of all amounts due under Clause 25, to the extent that in
the reasonable opinion of the Facility Agent such amounts are not
referable to a particular Borrower.
(b) FACILITY AGENT'S DETERMINATION The written determination of the
Facility Agent acting reasonably with regard to any matter which,
according to Clause 2.4(a), is to be determined according to its
reasonable opinion shall be conclusive save in the case of
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manifest error. No person shall have any recourse to the Facility
Agent in relation to any such determination if it proves to be the
case that its opinion was incorrect unless the Facility Agent was
grossly negligent or fraudulent in making any such determination.
(c) SERVICES AS OBLIGORS' AGENT Any and each Obligor (other than
Services) by and upon its execution of this Agreement or a Borrower
Accession Agreement or a Guarantor Accession Agreement, irrevocably
appoints Services to act on its behalf as its agent in relation to the
Finance Documents and irrevocably authorises Services on its behalf to
give all notices and instructions (including Requests) to execute on
its behalf any Borrower Accession Agreement or Guarantor Accession
Agreement and to make such agreements capable of being given or made
by such Obligor notwithstanding that they may affect such Obligor,
without further reference to or the consent of such Obligor and such
Obligor shall be bound thereby as though such Obligor itself had given
such notices and instructions (including, without limitation, any
Requests) or executed or made such agreements.
(d) SERVICES' ACTS BINDING Every act, omission, agreement, undertaking,
settlement, waiver, notice or other communication given or made by
Services under this Agreement, or in connection with this Agreement
(whether or not known to any other Obligor and whether occurring
before or after such other Obligor became an Obligor under this
Agreement) shall be binding for all purposes on all the Obligors as if
the Obligors had expressly concurred with the same. In the event of
any conflict between any notices or other communications of Services
and any other Obligor, those of Services shall prevail.
2.5 CHANGE OF CURRENCY AND ECONOMIC AND MONETARY UNION
(a) If more than one currency or currency unit are at the same time
recognised by the central bank of any country as the lawful currency
of that country, then:
(i) any reference in the Finance Documents to, and any obligations
arising under the Finance Documents, in the currency of that
country shall be translated into, or paid in, the currency or
currency unit of that country designated by the Facility Agent
acting reasonably; and
(ii) any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency unit
into the other, rounded up or down by the Facility Agent acting
reasonably.
(b) If a change in any currency of a country occurs, this Agreement will
be amended to the extent the Facility Agent specifies (after
consultation with Services), to be necessary to reflect the change in
currency and to put the Banks and the Obligors in the same position,
so far as possible, that they would have been in if no change in
currency had occurred provided that if, in the reasonable opinion of
the Facility Agent it is possible only to put one or the other (but
not both) of the Banks and the Obligors into such position, the
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Facility Agent shall be entitled to that extent to give priority to
putting the Banks into that position.
(c) The provisions of the Eleventh Schedule shall apply to the terms and
conditions of this Agreement.
2.6 MARGIN STOCK
(a) Clauses 9.3, 21.3(a) and 21.3(c)(i) shall each be disapplied with
respect to the Shares or TEG's American Depositary Shares (or any of
them) and any proceeds arising from a disposal thereof until the
delisting from The New York Stock Exchange of TEG's American
Depositary Shares.
(b) Upon the occurrence of the event set out in paragraph (a) above this
Clause shall be of no effect and the provisions of Clauses 9.3,
21.3(a) and 21.3(c)(i) shall apply to its fullest extent with respect
to the Shares.
(c) Whilst Clause 2.6(a) applies to the terms of this Agreement:
(i) PA shall not be permitted to dispose of the Shares or TEG's
American Depositary Shares (or any of them) other than:
(A) on arm's length terms, for fair market value; and
(B) for cash consideration payable to it on the date of such
disposal; and
(ii) the proceeds arising from any disposal of the Shares or TEG's
American Depositary Shares (or any of them) shall be held by PA
in Cash or Cash Equivalent Investments.
3. PURPOSE AND RESPONSIBILITY
3.1 PURPOSE
(a) The proceeds of each Utilisation shall be applied only in or towards
financing the following:
(i) in the case of Tranche 1A Advances to finance:
(A) the acquisition by PA of Shares (I) pursuant to the Offer
and (II) by way of open market purchases after the
Unconditional Date and whilst the Offer is continuing;
(B) payments by PA, TEG or any of its Subsidiaries to the
Optionholders under proposals with respect to the Option
Schemes put to them in
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connection with the Offer;
(C) the consideration payable pursuant to the operation by PA
with respect to the Shares of the procedures contained in
Sections 428-430 of the Companies Act, 1985; and
(D) to the extent (if at all) permitted pursuant to Clause 3.2,
any of the purposes to which the proceeds of Tranche 1B
Advances may be applied in accordance with Clause
3.1(a)(ii).
(ii) in the case of Tranche 1B Advances, to finance:
(A) the refinancing of the Refinancing Debt by PA, TEG and its
Subsidiaries in accordance with Clause 21.9;
(B) the payment of Offer Costs; and
(C) to the extent (if at all) permitted pursuant to Clause 3.3,
any of the purposes to which the proceeds of Tranche 2
Advances may be applied in accordance with Clause
3.1(a)(iii);
(iii) in the case of Tranche 2 Utilisations to finance:
(A) the general working capital requirements of the Borrowers
and their Subsidiaries (subject always to the other terms of
this Agreement);
(B) other general corporate purposes of the Borrowers and their
Subsidiaries permitted under the terms of this Agreement;
and
(C) the refinancing of the Refinancing Debt by PA, TEG and its
Subsidiaries in accordance with Clause 21.9.
(b) Each Borrower undertakes that the proceeds of each Utilisation by it
shall be used only for the purposes permitted for such Utilisations by
Clause 3.1(a), and that no Utilisation in any event shall be used in
any way which would be illegal under, or would cause the invalidity or
unenforceability (in each case in whole or in part) of any Finance
Document under, any applicable law (including, without limitation,
section 151 of the Companies Act 1985).
3.2 ADDITIONAL PURPOSE - TRANCHE 1A ADVANCES If, at any time after the
Unconditional Date, Services gives written notice to the Facility Agent
requesting that this Clause 3.2 should come into operation and demonstrating to
the reasonable satisfaction of the Majority Offer Banks that, after 100% of the
Shares have been acquired by PA and the consideration therefor has been paid in
full and all payments to be made to the Optionholders have been made in full, an
amount (the "1A SURPLUS") of the Tranche 1A Commitments will remain undrawn,
then from and after the later of (i) the date of such notice; and (ii) the
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date on which the Facility Agent confirms to Services that the Majority Offer
Banks are so satisfied (such confirmation to be given promptly upon their being
so satisfied), the 1A Surplus shall be redesignated, at Services' option, as
part of the Tranche 1B Commitments and/or the Tranche 2 Commitments and may be
utilised accordingly.
3.3 ADDITIONAL PURPOSE - TRANCHE 1B ADVANCES If at any time after the
Unconditional Date, Services gives written notice to the Facility Agent
requesting that this Clause 3.3 should come into operation, any amount of the
Tranche 1B Commitments which then remains undrawn, shall from and after the date
of such notice be redesignated as part of the Tranche 2 Commitments and may be
utilised accordingly.
3.4 RESPONSIBILITY Without prejudice to the foregoing and the remaining
provisions of this Agreement, none of the Finance Parties shall be bound to
enquire as to the use or application of the proceeds of any Utilisation, nor
shall any of them be responsible for or for the consequences of such use or
application.
4. CONDITIONS PRECEDENT
4.1 CONDITIONS PRECEDENT TO FIRST UTILISATION The obligations of each Finance
Party to Services and each Borrower under this Agreement with respect to the
making of any Utilisations hereunder are subject to the conditions precedent
that on or before the date of the first Utilisation hereunder:
(a) DOCUMENTS The Facility Agent shall have received all of the documents
listed in Part I of the Seventh Schedule in the agreed form and each
of the documents referred to in Part I of the Seventh Schedule as
being certified shall be certified by or on behalf of the relevant
Obligor as being a true and complete copy, and in full force and
effect as at the date such document is required to be delivered.
(b) EQUITY
(i) the Open Market Shares have been transferred to and are
unconditionally owned by PA;
(ii) an aggregate amount of at least the Sterling amount specified in
the letter between the Facility Agent and Services of even date
(or the Fixed Dollar Equivalent of such amount to the extent not
deposited in Sterling) (less an amount equal to the aggregate of
all sums expended in the purchase of Open Market Shares) has been
deposited into the Offer Account and (save to the extent already
so applied) is standing to the credit of the Offer Account and
available for application in financing the acquisition of Shares
pursuant to the Offer and by way of open market purchase after
the Unconditional Date, and whilst the Offer is continuing.
As to satisfaction of the condition in paragraph (i) above, the
certificate of an Authorised Signatory of Services shall be prima
facie evidence.
(c) OFFER The Offer shall have become or been declared unconditional in
all respects without
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PA having declared the Offer or permitted the Offer to become so
unconditional in circumstances where any provision of Clause 22 (other
than Clause 22(a)(i)(C), (ii) or (iii) or 22(d)) is breached thereby.
(d) HEDGING PA and the Facility Agent shall have agreed in writing (in
the form of a letter) the extent and type of the interest rate hedging
arrangements the terms of which are to be documented by the Hedging
Documents.
4.2 FURTHER CONDITIONS PRECEDENT Subject to the provisions of Clauses 24.3
and 24.4, the obligations of each Finance Party with respect to the making of
any Utilisation the proceeds of which are to be applied for any of the purposes
set out in:
(A) Clause 3.1(a)(i) (other than 3.1(a)(i)(A)(II)); and
(B) 3.1(a)(ii)(A) and 3.1(a)(iii)(C),
are subject to the further conditions precedent that both at the date of the
Request for and at the Utilisation Date for such Utilisation:
(a) (i) no breach of Clause 22 (other than Clause 22(a)(i)(C), (ii) or
(iii) or (d)) shall have occurred and be continuing which has
not been waived by a Waiver Letter; and
(ii) all of the representations and warranties in Clause 20.1 (a),
(b), (c), d(i) and (ii), (n) and (p) are true and correct in
all material respects (as if then made) ignoring any
references to Subsidiaries (other than PA), TEG, its
Subsidiaries and their respective businesses and assets; and
(iii) no Event of Default falling within any of paragraphs (f) to
(l) inclusive of Clause 24.1 (other than (k) or, insofar as it
relates to (k), (l)) has occurred and is continuing with
respect to Services, Finance or PA and has not been waived by
a Waiver Letter; and
(b) the Facility Agent (acting reasonably) is satisfied that with respect
to the making of a Tranche 1A Advance an advance in an amount at least
equal to the Matching Amount with respect thereto has been or will be
advanced by Powercoal to PA on the terms of the PA Note on or prior to
the making of such Tranche 1A Advance.
4.3 FURTHER CONDITIONS PRECEDENT Subject to the provisions of Clause 24.3 and
24.4 the obligations of the Finance Parties in respect of each Utilisation
(other than one to which the conditions in Clause 4.2 apply) are subject to the
further conditions precedent that both at the date of the Request for and at the
Utilisation Date for such Utilisation:
(a) other than in respect of each Utilisation by the drawing of one or
more Tranche 2 Advances by a Borrower to the extent that the Original
Sterling Amount thereof does not
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exceed the Original Sterling Amount of one or more Tranche 2 Advances
made in the same currency to such Borrower which is or are repaid on
such Utilisation Date by such Borrower (a "ROLLOVER ADVANCE"), no
Event of Default shall have occurred and be continuing which has been
declared pursuant to Clause 24.2 and not been waived; and
(b) (other than in respect of a Rollover Advance) (i) no Default shall
have occurred and be continuing or would result from the making of
such Utilisation which has not been waived pursuant to a Waiver
Letter, and (ii) the representations and warranties in Clause 20.1 of
this Agreement to be repeated on those dates are correct in all
material respects and will be correct in all material respects
immediately after the making of such Utilisation except to any extent
waived pursuant to a Waiver Letter.
5. ADVANCES AND DOCUMENTARY CREDITS
5.1 DELIVERY OF REQUEST
(a) Subject to the terms of this Agreement, PA or (upon its accession as a
Borrower pursuant to a Borrower Accession Agreement) any Borrower may
request a Utilisation by delivering to the Facility Agent by facsimile
transmission (provided that the original is sent to the Facility
Agent) or letter, (in the case of a Documentary Credit or an Advance
to be denominated in Sterling) prior to 10.00 a.m. on the Business Day
before the proposed Utilisation Date or (in the case of a Documentary
Credit or an Advance to be denominated in an Optional Currency) prior
to 10.00 a.m. on the third Business Day before the proposed
Utilisation Date (or in any such case at such later time and/or date
as may be agreed by the Facility Agent in writing), a duly completed
Request.
(b) No Request for the issuance of a Documentary Credit may be delivered
to the Facility Agent until the form of that Documentary Credit has
been agreed by the Facility Agent, Services, the beneficiary and
either the LC Bank or (in the case of a Documentary Credit to be
issued severally by the Banks) the Banks. No request for the issuance
of a Documentary Credit without a fixed tenor and fixed amount may be
made. Documentary Credits shall only be issued subject to and in
accordance with all applicable laws and regulations and the Uniform
Customs and Practice as referred to in Clause 5.5(b), as in force from
time to time.
5.2 FORM OF REQUEST Each Request shall specify:
(a) the Borrower in relation thereto (being, in the case of a Tranche 1A
Advance to be applied in financing the acquisition of Shares, PA and,
in the case of any other ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇, ▇▇, ▇▇▇ or any of TEG's
Subsidiaries (upon (in the case of TEG or any of its Subsidiaries) it
becoming a Borrower pursuant to a Borrower Accession Agreement) or, in
the case of any Tranche 2 Utilisation, any Borrower);
(b) whether the Utilisation is a Tranche 1A Advance, a Tranche 1B Advance,
a Tranche 2 Advance or a Tranche 2 Utilisation by way of Documentary
Credit (and, if in the case of
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a Utilisation by way of Documentary Credit, the type of Documentary
Credit to be issued);
(c) the proposed Utilisation Date, which shall be a Business Day falling
during the applicable Availability Period and complying with any other
applicable provisions of this Agreement;
(d) in the case of a Tranche 2 Utilisation, the currency of the Advance or
Documentary Credit requested (being, in each case, Sterling or an
Optional Currency);
(e) the principal amount of the Utilisation (the "REQUESTED AMOUNT")
being, in the case of a Tranche 1 Advance or a Tranche 2 Advance to be
denominated in Sterling an amount of not less than L10,000,000 in the
case of a Tranche 1 Advance or L20,000,000 in the case of a Tranche 2
Advance to be denominated in Sterling and in the case of a Tranche 2
Utilisation to be denominated in an Optional Currency, an amount equal
to not less than the Sterling Equivalent of L20,000,000, and in the
case of a Tranche 2 Utilisation by way of Letter of Credit, a Sterling
Equivalent of at least L2,000,000, provided always that no Request
Amount for a Tranche 2 Utilisation may exceed the then Available
Facility Amount;
(f) the duration of its (or, in the case of a Tranche 1 Advance, its
first) Interest Period, in the manner required by and subject to the
terms of Clause 10;
(g) in the case of a Documentary Credit, the name and address of the
beneficiary, the beneficiary's receiving bank account and reasonable
details of the liabilities payment of which is to be assured by the
Documentary Credit, as well as the expiry date of the Documentary
Credit (which shall be less than one year from the Utilisation Date
therefor unless the Facility Agent shall otherwise agree); and
(h) in the case of an Advance (other than a Rollover Advance), unless
previously notified to the Facility Agent in writing and not revoked,
the details of the bank and account to which the proceeds of the
proposed Advance are to be made available.
Subject to the terms of this Agreement, each Request shall be irrevocable
and the Borrower named in the same shall be bound to borrow an Advance in
accordance with such Request. The Facility Agent shall promptly notify
each Bank of each Request.
5.3 PARTICIPATIONS IN ADVANCES Subject to the terms of this Agreement each
Bank shall, on the date specified in any Request for an Advance, make available
to the Facility Agent for the account of the relevant Borrower the amount of its
participation in that Advance in the proportion (applied to the Requested
Amount) which its Commitment bearing the same Tranche designation as such
Advance bears to the aggregate amount of the Commitments having such
designation. All such amounts shall be made available to the Facility Agent in
accordance with Clause 12.1 for disbursement to or to the order of the relevant
Borrower in accordance with the provisions of this Agreement.
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5.4 ISSUE OF DOCUMENTARY CREDITS
(a) Subject to the terms of this Agreement, on the proposed Utilisation
Date, either the LC Bank or the Facility Agent (on behalf of all the
Banks severally in proportion to their Tranche 2 Commitments) will
issue, in the form approved (in accordance with Clause 5.1(b)), a
Documentary Credit as specified in the relevant Request by delivering
the same to or to the order of the beneficiary Provided that where the
Facility Agent is to issue the LC on behalf of all the Banks
severally, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International Bank (or any Affiliate thereof)
may arrange for another Bank (or any Affiliate of any Bank) to fulfil
its several obligations in respect thereof (and such arrangement shall
constitute a utilisation of the Tranche 2 Commitment of ▇▇▇▇▇▇▇ Sachs
International Bank (or Affiliate) as if it had undertaken the
obligations itself provided further if arrangements cannot be made
with another Bank (or Affiliate), ▇▇▇▇▇▇▇ ▇▇▇▇▇ International Bank (or
an Affiliate) may make an Advance of a corresponding amount in place
of such several Documentary Credit obligation.
(b) The LC Bank shall not be obliged to issue a Documentary Credit if it
has not approved the identity of any assignee or transferee of or
substitute for any Bank with respect to its Tranche 2 Commitment or
any part thereof, in which case such Documentary Credit will be issued
by the Facility Agent on behalf of the Banks severally in proportion
to their Tranche 2 Commitments.
5.5 COUNTER-INDEMNITY FROM ACCOUNT PARTY
(a) Without prejudice to Clause 5.6, the Borrower for whose account any
Documentary Credit is opened or issued (the "ACCOUNT PARTY") will
indemnify and hold harmless and keep each Finance Party indemnified
and held harmless from and against all liabilities, losses, damages,
claims and costs which such Finance Party may suffer or incur in
connection with such Documentary Credit and any payment made pursuant
to it, except to the extent that any such liability, loss, damage,
claim or cost results from such Finance Party's negligence or wilful
misconduct.
(b) Each Account Party irrevocably directs each Finance Party to pay
without further confirmation or investigation from or by it any demand
appearing or purporting to be validly made pursuant to any Documentary
Credit. Where any Documentary Credit calls for certificates or other
documents each Finance Party may assume, without investigation, that
the certificates or documents tendered are duly signed by the person
by whom they appear to be signed and are genuine and correct. Without
prejudice to the rights under the Uniform Customs and Practice for
Documentary Credits (1993 Revision) (ICC Publication No. 500) (which
shall apply in relation to all Documentary Credits issued under this
Agreement), the relevant Account Party agrees to reimburse each
Finance Party forthwith on written demand for any amounts paid by such
Finance Party pursuant to any such demand in the currency paid by such
Finance Party, together with interest on such amounts at a rate
determined in accordance with Clause 11.3 from the date such
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amounts are paid by such Finance Party until reimbursement as
aforesaid.
(c) The obligations of each Account Party under this Clause 5.5 shall not
be impaired by (a) any waiver or time granted to or by any Finance
Party, (b) any release or dealings with any rights or security by any
Finance Party (including, without limitation, under the Finance
Documents), (c) any invalidity of any Documentary Credit, or (d) any
other circumstances which might impair such obligations.
(d) So long as any amount is or is capable of becoming outstanding by any
Obligor to any of the Finance Parties under any of the Finance
Documents or any Commitment is in force, no Account Party shall by
virtue of any payment made by it pursuant to this Clause 5.5 or by
virtue of any realisation of security made in respect of its
obligations under this Clause 5.5, claim or exercise any right of
subrogation, contribution or indemnity against any member of the
Services Group in competition with any Finance Party.
5.6 BANKS' COUNTER-GUARANTEE
(a) Each Bank as primary obligor guarantees to the LC Bank, on demand by
the LC Bank from time to time, the due performance by each Account
Party in relation to each Documentary Credit issued by the LC Bank, of
its obligations under Clause 5.5, provided that the liability of each
Bank in relation to any particular default in performance of such
obligations by such Account Party shall not exceed such Bank's pro
rata share (being the proportion which its Tranche 2 Commitment bears
to the aggregate of the Tranche 2 Commitments at the date the
Documentary Credit was issued) of the amount in default.
(b) The LC Bank shall promptly notify the Facility Agent and Services of
any demand served on it under any Documentary Credit and each payment
made pursuant thereto and of any failure by any Account Party in
performing its obligations under Clause 5.5.
(c) The guarantees of each of the Banks contained in this Clause 5.6 shall
be as supplemented by the terms set out in the Eighth Schedule. The
provisions of Clauses 12.1, 13.2 and 13.3 shall apply, mutatis
mutandis, in relation to payments to be made by each Bank to the LC
Bank pursuant to this Clause.
(d) Each Obligor agrees that, to the extent that any Bank makes any
payment to the LC Bank pursuant to this Clause 5.6, that Bank will
thereupon be subrogated to any rights the LC Bank may then have
against any Obligor in respect of the amount so paid by that Bank, and
each Account Party will indemnify such Bank in respect of the amount
so paid by that Bank. Each Account Party shall also indemnify that
Bank against all costs and expenses incurred by that Bank in
recovering or attempting to recover any amount pursuant to its rights
of subrogation referred to above.
5.7 LC BANK'S POSITION To the extent not inconsistent with the LC Bank acting
as principal and not as agent in issuing and agreeing to issue any Documentary
Credit under this Agreement, the provisions of Clause 26 excluding or
restricting liability and responsibility shall apply mutatis mutandis for the
benefit
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of the LC Bank in its relations with the Banks and each Account Party.
5.8 CHANGE OF LC BANK
(a) The Facility Agent, with the prior approval of Services and the
Majority Banks, may designate any Bank (with such Bank's consent) as a
replacement LC Bank, but not with respect to Documentary Credits
already issued by an existing LC Bank.
(b) The LC Bank may resign at any time on giving not less than 3 months'
prior written notice to the Facility Agent and Services to expire on
or after the first anniversary of the Unconditional Date if (i)
Services and the Majority Banks consent, or (ii) there is in the
reasonable opinion of the LC Bank an actual or potential conflict of
interest in it continuing to act as LC Bank, or (iii) it ceases to
have a Commitment in effect.
(c) If the LC Bank does so resign and no replacement is so appointed, any
Documentary Credit to be issued in accordance with the terms of this
Agreement will be issued by the Facility Agent on behalf of the Banks
severally in proportion to their respective Tranche 2 Commitments as
in effect at the date of issue.
6. OPTIONAL CURRENCIES
6.1 SELECTION OF OPTIONAL CURRENCY The relevant Borrower shall, in relation to
any Tranche 2 Advance or Documentary Credit in the Request therefor, specify an
Optional Currency in which it wishes that Advance or Documentary Credit to be
denominated and the Facility Agent shall promptly notify the Banks of that
notice.
6.2 NOTIFICATION OF AGENT'S SPOT RATE OF EXCHANGE If a Tranche 2 Advance or
Documentary Credit is to be denominated or issued in an Optional Currency, the
Facility Agent shall promptly notify the relevant Borrower and the Banks of the
applicable Agent's Spot Rate of Exchange, the Optional Currency amount and the
Sterling Equivalent of such Tranche 2 Advance as soon as practicable after they
are ascertained.
6.3 DETERMINATION OF CURRENCY If a Bank (the "DETERMINING BANK") gives notice
to the Agent (which shall promptly notify the relevant Borrower) before 10.00
a.m. at least two Business Days prior to the Utilisation Date relative to any
Tranche 2 Advance to be denominated in an Optional Currency certifying in that
notice that by reason of circumstances affecting the London interbank
eurocurrency market deposits in the currency specified in the relevant Request
of an amount of not less than its participation in such Advance will not be
readily available to it in the London interbank eurocurrency market for the (or
the first) Interest Period relative to such Advance, such certification being
conclusive against the relevant Borrower, then the relevant Borrower may by
notice to the Facility Agent before 11.00 a.m. on the second Business Day prior
to the proposed Utilisation Date specify that the Determining Bank's portion of
such Tranche 2 Advance shall be denominated in Sterling (if not initially
requested) or another Optional Currency, and in the absence of such notice from
the relevant Borrower by such time the Determining Bank's portion of such
Advance shall be denominated in Sterling. Such changes shall be deemed to be
made to the definition of LIBOR as the Facility Agent may reasonably determine
to be
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necessary for the purpose of determining LIBOR to apply to the Determining
Bank's portion of such Advance and notify to the relevant Borrower and the
Banks.
6.4 REVOCATION OF CURRENCY If prior to 10.30 a.m. on the second Business Day
prior to the proposed Utilisation Date there shall occur any changes in national
or international, financial, political or economic conditions, currency
availability, currency exchange rates or exchange controls which, in the
reasonable opinion (which shall be conclusive) of the Facility Agent after
consultation with the Reference Banks, render it impracticable for any Advance
to be denominated in the Optional Currency concerned, the Facility Agent shall
give notice to the relevant Borrower to that effect before 11.00 a.m. two
Business Days prior to the Utilisation Date for the making of that Advance. In
that event the relevant Advance shall be denominated in Sterling unless the
relevant Borrower, the Facility Agent and the Banks agree that it shall be
denominated in another Optional Currency (in which case, for the purpose only of
determining LIBOR to apply to that Advance, such changes shall be deemed to be
made to the definition of LIBOR as the Facility Agent may reasonably determine
and notify to the relevant Borrower and the Banks).
6.5 AMOUNT Subject as otherwise provided in this Agreement if a Tranche 2
Advance is to be made in an Optional Currency, each Bank will make available to
the Facility Agent an amount in that Optional Currency equal to its
participation in such Requested Amount in the proportion which its Commitment
bears to the Total Commitments.
7. CANCELLATION OF COMMITMENTS
7.1 TRANCHE 1 COMMITMENTS Any part of the Tranche 1 Commitments not borrowed
hereunder shall be cancelled automatically at the close of business in London on
the expiry of the Tranche 1 Availability Period.
7.2 TRANCHE 2 COMMITMENTS The Tranche 2 Commitments shall be cancelled at
close of business in London on the last day of the Tranche 2 Availability
Period.
7.3 VOLUNTARY CANCELLATION Services may, on giving not less than three
Business Days' prior written notice to the Facility Agent (which shall promptly
give notice of the same to the Banks) at any time cancel or reduce the Tranche 1
Commitments or the Tranche 2 Commitments in whole or in part (but, if in part,
by a minimum of L20,000,000 and in whole multiples of L2,500,000 in each case)
without incurring any penalty or other cost, provided that such cancellation or
reduction may only be effected to the extent of the amount of the Tranche 1
Commitments or Tranche 2 Commitments (as the case may be) undrawn on the date
therefor taking into account any repayment or prepayment of any Utilisation due
to be made on that date. Any such notice by Services shall be irrevocable and
shall specify the date upon which the reduction is to become effective and the
amount of the reduction.
7.4 REDUCTION CONSEQUENT ON REPAYMENT OR PREPAYMENT
(a) Subject to Clause 7.4(b), the Tranche 1 Commitments shall be reduced
and cancelled (such reduction being applied pro rata as between the
Tranche 1 Commitments of all of the Banks), by the amount of any
repayment or prepayment of any Tranche 1 Advance made pursuant to any
provision of this Agreement.
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(b) Each Bank's Tranche 1 Commitment shall be reduced and cancelled by the
amount of any prepayment of that Bank's participation in any Tranche 1
Advance made pursuant to any of Clauses 13.6, 14.5, 15.2 or 16.
7.5 LIMITATIONS Save as expressly provided in this Agreement any amount of the
Commitments cancelled or otherwise extinguished under this Agreement may not be
reinstated. Save as expressly provided in this Agreement none of the
Commitments may be reduced or cancelled under this Agreement.
8. REPAYMENT
8.1 REPAYMENT OF THE TRANCHE 1 ADVANCES Each Borrower, subject to the
application of Clause 9, shall repay the Tranche 1 Advances made to it in full
on the Final Repayment Date.
8.2 REPAYMENT OF THE TRANCHE 2 UTILISATIONS Each Borrower shall repay the full
amount of each Tranche 2 Advance made to it on the last day of the Interest
Period relating to that Tranche 2 Advance, provided always that each Tranche 2
Utilisation then outstanding shall be repaid in full on the Final Repayment
Date.
9. PREPAYMENT
9.1 PROHIBITION No Borrower may prepay all or any part of any Utilisation
except as expressly provided in this Agreement.
9.2 VOLUNTARY PREPAYMENT
(a) Subject to Clause 9.2(b), Services, on giving not less than five
Business Days' prior written notice to the Facility Agent (which shall
promptly give notice of the same to the Banks) specifying, inter alia,
the amount and date for prepayment and identifying the Utilisation
concerned, may procure that any Utilisation is prepaid at any time in
whole or in part by the Borrower by which it was made, provided that
any prepayment shall be (if in part) in the case of a Tranche 1
Advance or a Tranche 2 Utilisation of an amount which is at least
L20,000,000 (or its equivalent in other currencies, in the case of a
Tranche 2 Utilisation) (and, if more, a whole multiple of L2,500,000).
(b) Any such prepayment and any prepayment pursuant to Clause 9.3 shall be
applied pro rata against the participations of the Banks in the
Utilisation prepaid.
9.3 MANDATORY PREPAYMENT FROM NET PROCEEDS Subject to Clause 9.4 below, if:
(a) any of the assets, business or undertaking of any member of the
Services Group are disposed of; or
(b) any insurance proceeds are recovered by a member of the Group which
represent Net Proceeds,
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(c) any funds are received by Services which represent the proceeds of an
equity subscription in it (other than any equity subscription made by
EnergyCo to the extent permitted by Clause 21.6(e)); or
(d) prior to the Asset Split and if thereafter on the date of receipt of
funds: (i) the amount of the Total Commitments exceeds 75% of the
amount of the Total Commitments as at the date hereof, or (ii) PA does
not have senior long term debt ratings of BBB+ or better (from
Standard & Poors Ratings Group) and Baa1 or better (from ▇▇▇▇▇'▇
Investor Services Inc.), any funds are received by any member of the
Services Group which represent the proceeds of any Hybrid Preferred
Securities,
subject to the proviso set out below unless the Majority Banks shall otherwise
consent in writing, Services shall apply, or shall procure that there shall be
applied, promptly an amount equal to the Net Proceeds arising from the disposal
or recovery or subscription in or towards prepayment of the Utilisations in
accordance with this Clause 9, Provided that the foregoing shall not apply:
(i) to Net Proceeds arising from a disposal of trading stock or a
supply of services, gas and/or electricity, in each case in the
ordinary course of trading; or
(ii) to Net Proceeds arising from a disposal of assets not constituting
trading stock which are to be replaced by other assets being
acquired for use for like purposes and are so replaced within three
months of the date of such disposal (save to the extent the Net
Proceeds exceed the acquisition cost of those other assets); or
(iii) to Net Proceeds arising from any disposal permitted by Clause 21.3
(a) or (c)(ii)(A), (D), (E), (G), (I) or (J); or
(iv) to Net Proceeds arising from any insurance recovery where Net
Proceeds arising out of the same or related claims do not exceed
L25,000,000 in the aggregate and/or (with respect only to any
excess) Services confirms such excess Net Proceeds are to be
applied in the reinstatement of the asset in respect of which such
recovery was made or purchasing a like replacement asset; or
(v) to Net Proceeds arising from a transfer or other disposal of assets
by a Licenceholder pursuant to the securitisation of electricity
receivables; or
(vi) to Net Proceeds arising after the Unconditional Date of any
sale-and-leaseback arrangements up to a maximum aggregate amount of
L75,000,000 (or its equivalent in other currencies); or
(vii) to Net Proceeds arising as a result of any disposal referred to in
the Structure Memorandum and carried out as contemplated therein;
or
(viii) to Net Proceeds arising from disposals (other than those falling
within paragraphs (i) to
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(vii) above and (ix) below) made during any annual Accounting
Period the aggregate consideration for which (taken together) does
not exceed an amount equal to ten per cent. (10%) of the
consolidated gross assets of the PA Group shown in the audited
Accounts of the PA Group most recently delivered to the Facility
Agent pursuant to Clause 21.2(a)(i)(I) (or, at any time prior to
the delivery of such Accounts, of the TEG Group shown in the Base
Financial Statements) provided and to the extent that such Net
Proceeds are applied within one year of receipt in or towards
acquiring other assets to be used in the course of the PA Group's
business without any breach of Clause 21.10(a); or
(ix) to 50% of the Net Proceeds arising from any other disposals which
do not fall to be dealt with under paragraphs (i) to (viii) above
provided and to the extent that such 50% portion of the Net
Proceeds is applied within one year of receipt in or towards
acquiring other assets to be used in the course of the PA Group's
business carried on without breaching Clause 21.10(a).
9.4 AVAILABILITY OF NET PROCEEDS Where:
(i) applicable law and/or the terms of a licence of a member of the PA
Group restrict the ability of a member of the PA Group to make Net
Proceeds available;
(ii) a member of the PA Group is prohibited by section 151 et seq.
Companies ▇▇▇ ▇▇▇▇ from applying Net Proceeds; or
(iii) Net Proceeds cannot be remitted to any of Australia, USA or United
Kingdom,
in each case for the purpose of funding any prepayment required pursuant to
Clause 9.3 consequent on the receipt of those Net Proceeds, then such prepayment
shall only be required to be made when and to the extent that those Net Proceeds
can be made available for such purpose without breaking the terms of such
licence or such law. Services will and will procure that the relevant member of
the PA Group will use all reasonable endeavours to obtain as soon as reasonably
practicable any consent or complete any procedure which may be required under
the terms of such licence or such law (as the case may be) in order for such Net
Proceeds to be so made available.
9.5 GENERAL PROVISIONS RELATING TO PREPAYMENT
(a) Any notice of prepayment given under this Agreement shall be
irrevocable, and Services or the Borrower named in such notice shall
be bound to prepay (or, in the case of Services, to procure
prepayment) in accordance with such notice.
(b) Amounts repaid and prepaid in respect of any Tranche 1 Advance under
any provision of this Agreement may not be reborrowed hereunder.
(c) Amounts repaid or prepaid pursuant to Clause 8.2 or 9.2 in respect of
Tranche 2 Utilisations may, prior to the Final Repayment Date but
subject to the terms of this Agreement, be redrawn as Tranche 2
Utilisations. Any amounts repaid or prepaid in
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respect of Tranche 2 Utilisations under any other provision of this
Agreement may not be redrawn.
(d) Any prepayment of any Advance under any provision of this Agreement
shall be made together with interest accrued on the amount prepaid,
but (subject to Clause 25.2(c)), without premium or penalty.
9.6 ORDER OF APPLICATION The amount required to be applied in prepayment
pursuant to Clauses 9.3 and 9.4 shall be applied as follows:
(a) first, in prepayment of the Tranche 1 Utilisations until repaid or
prepaid in full;
(b) second, against the Tranche 2 Advances (pro rata) in prepayment
thereof (and cancellation of the corresponding amount of the Tranche 2
Commitments); and
(c) third, against the Tranche 2 Utilisations not otherwise prepaid in
accordance with (b) above, in prepayment thereof (and cancellation of
the corresponding amount of the Tranche 2 Commitments).
9.7 DATE OF PREPAYMENT
(a) If any Obligor becomes obliged to prepay or procure the prepayment of
any amount under Clauses 9.3 or 9.4 the prepayment shall be made on
the next Interest Date relating to the Advance to be repaid (or
forthwith in the case of an outstanding Documentary Credit) and
pending such application shall be deposited in an interest bearing
blocked account (the "BLOCKED ACCOUNT") in the name of the relevant
Borrower held with the Facility Agent, unless Services by not less
than 5 Business Days' written notice to the Facility Agent has
specified that an immediate prepayment is to be made in which case the
prepayment shall be made on or within 5 Business Days after the date
of such recovery, disposal, claim, sale or subscription, as the case
may be.
(b) So long as any Utilisation remains outstanding or any of the
Commitments are available for utilisation (whether or not subject to
conditions precedent), no amount shall be withdrawn from any Blocked
Account except for immediate application in making any required
prepayment or accelerated repayment or as provided in (c) below.
(c) The Facility Agent or the relevant Obligor shall be entitled (but not
obliged) to apply the whole or any part of the sums standing to the
credit of any Blocked Account in the name of any Obligor in or towards
payment of any unpaid sums at any time due from the Obligor under this
Agreement.
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10. INTEREST PERIODS
10.1 SELECTION AND AGREEMENT The relevant Borrower shall give notice to the
Facility Agent not later than (in the case of any Advance denominated in
Sterling) 10.00 a.m. on the Business Day prior to, or (in the case of any
Advance denominated in an Optional Currency) three Business Days prior to the
commencement of each (or the) Interest Period relative to any Advance made
hereunder (or in the Request therefor in the case of the first Interest Period
relative to any Tranche 1 Advance or the Interest Period in the case of any
Tranche 2 Advance) specifying the duration of such Interest Period, which in the
case of any Tranche 1 Advance or Tranche 2 Advance shall be of one, two, three
or six months, or in each case such other duration as may be agreed (or deemed
agreed in accordance with Clause 10.4(c)) by the Facility Agent after
consultation with the Reference Banks or as may be required in order to comply
with Clause 10.3 (provided that if such duration is over six months then the
Facility Agent may only agree with the unanimous consent of the Banks
participating in such Advance and Provided further that with respect to any
Interest Period commencing prior to the earlier of (i) the date on which the
Facility Agent notifies Services that the general syndication of the Facilities
has been completed (which the Facility Agent shall do promptly upon it being so
completed) and (ii) six months of the Unconditional Date, such Interest Periods
shall, subject to Clause 10.4(c) be of one month's duration unless the Facility
Agent and Services otherwise agree). If the relevant Borrower fails to specify
the duration of an Interest Period for any Advance the duration of that Interest
Period shall be three months subject as otherwise required in order to comply
with any other provision of this Agreement.
10.2 SPLITTING Subject to Clause 10.4(d), the relevant Borrower may, in any
notice given pursuant to Clause 10.1 (or in any Request therefor) split any
Tranche 1 Advance into any number of separate Tranche 1 Advances (each having an
Interest Period of a different duration, separately designated in such notice or
Request), provided that each such separate Advance must be of a minimum amount
of L20,000,000. Each Advance resulting from any such splitting shall continue
as a separate Advance unless and until consolidated with another Advance having
the same Tranche designation.
10.3 RESTRICTIONS ON SELECTION
(a) Each Borrower shall use its reasonable endeavours to ensure the
selection by it of the duration of Interest Periods pursuant to Clause
10.1 so that the Final Repayment Date will also be an Interest Date
relative to all outstanding Advances.
(b) If it appears to the Facility Agent in good faith that the
requirements of paragraph (a) above will not be met by a Borrower's
selection of any Interest Period, the Facility Agent, on behalf of and
after consultation with that Borrower, may (but shall not be obliged
to) select a different duration for such Interest Period (which shall
prevail over that selected by that Borrower) in order to facilitate
the meeting of such requirements.
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10.4 DURATION AND CONSOLIDATION
(a) The first (or the) Interest Period relative to each Advance shall
commence on its Utilisation Date and end on the last day of the period
selected or provided for in accordance with this Clause. Any
subsequent Interest Periods in relation to a Tranche 1 Advance shall
commence on the expiry of the immediately preceding Interest Period
relating thereto and end on the last day of the period so selected or
provided therefor. If any Interest Period for any Advance would
otherwise end on a day which is not a Business Day, such Interest
Period shall end instead on the next Business Day.
(b) If any Interest Period relating to any Tranche 1 Advance expires on an
Interest Date relative to (respectively) another Tranche 1 Advance
then, with effect from such Interest Date, such Tranche 1 Advances,
subject to Clauses 10.1, 10.2 and 10.3, shall be aggregated and
consolidated to form (respectively) a single Tranche 1 Advance.
(c) Any Borrower in its Request for a Tranche 1 Advance shall be entitled
to specify that the first Interest Period in respect of such Tranche 1
Advance shall be of a period (the "SHORT PERIOD") other than one, two,
three or six months (but in any event a period greater than 14 days
but not exceeding six months) and where the last day of the period
selected is an Interest Date relative to another Tranche 1 Advance
then the Facility Agent and the Reference Banks shall be deemed to
have agreed that the first Interest Period in respect of such Advance
shall be the Short Period.
(d) PA shall use its reasonable endeavours to procure (i) that the Tranche
1 Advances shall be aggregated and consolidated to form not more than
20 Tranche 1A Advances and five Tranche 1B Advances outstanding at any
one time; and (ii) that until the earlier of the date 6 months after
the date of the first Utilisation and the conclusion of general
syndication, Interest Periods for all Advances shall be selected so as
to facilitate so far as possible syndication and the effecting of all
transfers pursuant thereto on Interest Dates relative to the
outstanding Advances.
10.5 NOTIFICATION The Facility Agent will notify the relevant Banks and
Services and (if different) the relevant Borrower of the duration of each
Interest Period relating to each Advance promptly after ascertaining the same.
11. INTEREST
11.1 RATE The rate of interest applicable to each Advance for each (or the)
Interest Period relative to it shall be the rate per annum determined by the
Facility Agent to be the aggregate of:
(a) the Margin;
(b) LIBOR relative to such Advance for such Interest Period; and
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(c) the Additional Cost, if any, relative to such Advance from time to
time during such Interest Period.
11.2 DUE DATES Save as otherwise provided herein, interest accrued on each
Advance for each Interest Period relative thereto shall be paid by the Borrower
in respect of such Advance in the currency of the Advance relative thereto in
arrear on the last day of such Interest Period and also, in the case of an
Interest Period of a duration exceeding six months, on the last day of each
consecutive period of six months from the first day of such Interest Period.
11.3 DEFAULT INTEREST If any Obligor fails to pay any amount payable by it
under this Agreement on the due date therefor, such Obligor, on demand by the
Facility Agent from time to time, shall pay interest on such overdue amount
(including overdue default interest) in the currency in which such overdue
amount is for the time being denominated from the due date up to the date of
actual payment, both before and after judgment, at a rate determined by the
Facility Agent to be one per cent. (1%) per annum above that which would be
payable if such overdue amount constituted, during the period of non-payment
thereof, an Advance made to such Obligor in the same currency as the overdue
amount for successive Interest Periods of such duration of up to three months as
the Facility Agent, after consultation with Services to the extent practicable
in the circumstances, may designate from time to time. Such rate shall be
determined or redetermined on the first Business Day of each such Interest
Period. In calculating the amount of default interest due from the Guarantor in
respect of any overdue amount due from any Borrower, the amount of default
interest accrued due from such Borrower and the amount of overdue default
interest accrued due from the Guarantor shall not be double counted.
11.4 BANK BASIS Interest shall accrue from day to day, and be computed on the
basis of a year of 365 days (or, where customary in the relevant financial
market, 360 days in respect of interest on Advances made in an Optional
Currency) for the actual number of days elapsed.
11.5 DETERMINATION CONCLUSIVE; NOTIFICATION Each determination of a rate of
interest by the Facility Agent under this Agreement shall, in the absence of
manifest error, be conclusive and shall be promptly notified to Services, the
relevant Borrower and the Banks.
12. PAYMENTS
12.1 FUNDS, PLACE AND CURRENCY Payment under this Agreement to the Facility
Agent shall be made in freely transferable funds for same day value on the due
date at such times and in such manner as the Facility Agent may specify to the
party concerned as being customary at the time for the settlement of
transactions in the currency in which the amount concerned is denominated to
such account of the Facility Agent at such bank or office as the Facility Agent
shall designate by at least three Business Days' notice to the party liable.
12.2 APPLICATION Each payment received by the Facility Agent for the account of
another person pursuant to Clause 12.1 shall:
(a) in the case of a payment received for the account of any Borrower, be
made available by the Facility Agent to that Borrower by application,
on the date and in the funds of receipt:
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(i) first, in or towards payment of any amounts then due and payable
(and unpaid) by that Borrower under this Agreement; and
(ii) second, in payment to such account as that Borrower shall have
properly designated for the purpose in the relevant Request or
otherwise in writing; and
(b) in the case of any other payment, be made available by the Facility
Agent to the person for whose account the payment was received (in the
case of a Bank, for the account of its Facility Office) on the date
and in the currency and funds of receipt to such account of the person
with the office or bank in the country of the currency concerned as
that person shall have previously notified to the Facility Agent for
the purposes of this Agreement.
The Facility Agent (or the Security Agent in the case of monies received
pursuant to the Security Documents) shall promptly distribute monies received
for the account of the Banks among the Banks pro rata to their respective
entitlements and in the funds and currency of receipt, provided that the
Facility Agent or Security Agent (as the case may be) may deduct therefrom any
amount due to the Facility Agent pursuant to Clause 12.4 or 31.2.
12.3 CURRENCY
(a) Interest accrued under this Agreement shall be payable in the currency
in which the relevant amount in respect of which it has accrued was
denominated during the period of accrual.
(b) The principal of each Advance shall be repaid or prepaid in the
currency in which it is denominated.
12.4 RECOVERY OF PAYMENTS Unless the Facility Agent shall have received notice
from a Bank or Borrower not later than (in the case of any Sterling amount) 3.00
p.m. on the Business Day prior to, or (in the case of any amount denominated in
an Optional Currency) 11.00 a.m. on the second Business Day prior to the date
upon which such Bank or Borrower (the "PARTY LIABLE") is to pay an amount to the
Facility Agent for transfer to any Borrower or any Bank respectively (the
"PAYEE") that the Party Liable does not intend to make that amount available to
the Facility Agent on the due date, the Facility Agent may assume that the Party
Liable has paid that amount to the Facility Agent on that date in accordance
with this Agreement. In reliance upon that assumption, the Facility Agent may
(but shall not be obliged to) make available to the Payee(s) a corresponding
sum. If that amount is not in fact so made available to the Facility Agent, the
Payee(s) shall forthwith on demand repay that sum to the Facility Agent together
with interest on such sum until its repayment at a rate determined by the
Facility Agent to reflect its cost of funds incurred in making available the
corresponding amount to that Payee(s) (any such determination to be conclusive
in the absence of manifest error). The Facility Agent may make a demand on a
Borrower as Payee only if and to the extent that the Facility Agent has demanded
the appropriate funds from the relevant Bank and those funds have not been paid
by that Bank forthwith after the demand. The provisions of this Clause are
without prejudice to any rights the Facility Agent and the Payee may have
against the Party Liable.
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12.5 NON-BUSINESS DAYS Whenever any payment under any Finance Document shall
become due on a day which is not a Business Day, the due date for that payment
shall be extended to the next Business Day. During any such extension of the
due date for payment of any principal, interest shall be payable on such
principal at the rate payable on the original due date.
12.6 APPROPRIATIONS Other than in the case of prepayment to a specific Bank
permitted by the terms of this Agreement, in the case of a partial payment by
any Obligor of amounts due and payable under any Finance Document, the Facility
Agent, or as the case may be, the Security Agent may appropriate such payment
towards such of the amounts due and payable by such Obligor under this Agreement
as the Facility Agent or, as the case may be, the Security Agent may with the
approval of the Majority Banks decide (subject to the requirement that such
payment shall be appropriated first towards those overdue amounts which attract
the higher Margin), and each part of any payment so appropriated towards a
particular amount due and payable under any Finance Document shall be treated as
received by the Facility Agent or, as the case may be, the Security Agent for
the account of the Banks to whom such particular amount is due, in each case pro
rata to the respective amounts thereof due to each of them from such Obligor.
Any such appropriation shall override any appropriation made by any Obligor.
12.7 CERTIFICATIONS Save as otherwise provided herein, any certification or
determination of a rate or amount or other matter as referred to herein and made
by the Facility Agent or a Bank, as the case may be, shall be prima facie
evidence of the same.
13. TAXES
13.1 APPLICABLE TAXES As used in this Agreement, "APPLICABLE TAXES" means all
Taxes imposed by or in the jurisdiction in which the relevant Obligor is
resident or any other country through or out of which the relevant payment is
made or by any federation or organisation of which that country may be a member
or by or through any taxation authority of that country, federation or
organisation on any payment by any Obligor or any Finance Party to any Finance
Party, under any Finance Document, other than Taxes imposed on that payment
which would not have been imposed on that payment if the Finance Party to which
or for whose account that payment was made was a Recognised Bank and had made
(whether as original lender or by novation in accordance with Clause 30.4) the
advance in respect of which the relevant payment of interest is made.
13.2 NO SET-OFF OR DEDUCTIONS All payments to be made by any Obligor to any
Finance Party under any of the Finance Documents shall be made:
(a) without set-off or counterclaim; and
(b) free and clear of all and without deduction for or on account of any
Applicable Taxes, except to the extent that such Obligor is compelled
by law to make payment subject to the Applicable Taxes.
13.3 GROSS-UP If any Applicable Taxes or amounts in respect thereof must be
deducted from any payment by an Obligor to any Finance Party under any Finance
Document or any other deductions must
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be made from any amounts so paid by any Obligor (or from any corresponding
payment by any Finance Party to any other Finance Party under or pursuant to the
terms of any Finance Document), or any such payment shall otherwise be required
to be made subject to any Applicable Tax, such Obligor shall pay such additional
amounts as may be necessary to ensure that each Finance Party receives a net
amount after deduction for and payment of all Applicable Taxes equal to the full
amount which it would have received had payment not been made subject to the
Applicable Tax. All Applicable Taxes required to be deducted from any payment
by any Obligor to any Finance Party under any Finance Document shall be deducted
and paid when due by such Obligor to the applicable Tax authorities. Each
Finance Party shall notify each Obligor through the Facility Agent of the
application of this Clause 13.3 to any payment then due or to become due to it
under any Finance Document promptly upon its becoming aware of the same.
13.4 TAX RECEIPTS As soon as reasonably practicable after each payment by any
Obligor of any Applicable Tax (or any Tax which would be an Applicable Tax save
for the exception contained in Clause 13.1) on any payment by it to any Finance
Party under any Finance Document, such Obligor shall deliver to the Facility
Agent for the relevant payee Finance Party evidence reasonably satisfactory to
the payee (including copies of relevant Tax receipts received by such Obligor,
which such Obligor shall use its reasonable endeavours to obtain) that the
relevant Tax has been duly remitted or accounted for to the appropriate
authority.
13.5 TAX SAVING
(a) In respect of a Bank which is not a Treaty Bank:
(i) In the event that, following the imposition of any Applicable Tax
on any payment by (or on behalf of) any Obligor (or any
corresponding payment by any Finance Party to any other Finance
Party under this Agreement) in consequence of which such Obligor
is required under Clause 13.3 to pay such Applicable Tax or to
pay any additional amount in respect of it, any Finance Party
shall in its sole opinion and based on its own interpretation of
any relevant laws or regulations (but acting in good faith)
receive or be granted a credit against or remission for or
deduction from or in respect of any Applicable Tax payable by it
or for its account (or on its behalf) or shall obtain any other
relief in respect of Applicable Tax on its profits or income,
which in such Finance Party's opinion in good faith is both
reasonably identifiable and quantifiable by it without requiring
such Finance Party or its professional advisers to expend a
material amount of time or incur a material cost in so
identifying or quantifying (any of the foregoing, to the extent
so reasonably identifiable and quantifiable, being referred to as
a "SAVING"), such Finance Party shall, to the extent that it can
do so without prejudice to the retention of the relevant saving
and subject to such Obligor's obligation to repay the amount to
such Finance Party if the relevant saving is subsequently
disallowed or cancelled (which repayment shall be made promptly
on receipt of notice by such Obligor from such Finance Party of
such disallowance or cancellation), reimburse such Obligor
promptly after receipt of such saving by such Finance Party with
such amount as such Finance Party shall in its sole opinion (but
acting in good faith) have concluded to be the amount or value of
the relevant saving.
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(ii) Nothing contained in this Agreement shall interfere with the
right of any such Finance Party to arrange its Tax and other
affairs in whatever manner it thinks fit and, in particular, no
such Finance Party shall be under any obligation to claim relief
from Tax on its corporate profits, or from any similar Tax
liability, in respect of the Applicable Tax, or to claim relief
in priority to any other claims, reliefs, credits or deductions
available to it or to disclose details of its Tax affairs. No
Finance Party shall be required to disclose any confidential
information relating to the organisation of its affairs.
(b) In respect of a Bank which is a Treaty Bank:
(i) In the event that, following the imposition of any Applicable Tax
on any payment by (or on behalf of) any Obligor (or any
corresponding payment by any Finance Party to any other Finance
Party under this Agreement) in consequence of which such Obligor
is required under Clause 13.3 to pay such Applicable Tax or to
pay any additional amount in respect of it, any Finance Party
shall receive or be granted a credit against or remission for or
deduction from or in respect of any Applicable Tax payable by it
or for its account (or on its behalf) or shall obtain any other
relief in respect of Applicable Tax on its profits or income,
which is both reasonably identifiable and quantifiable by it
without requiring such Finance Party or its professional advisers
to expend a material amount of time or incur a material cost in
so identifying or quantifying (any of the foregoing, to the
extent so reasonably identifiable and quantifiable, being
referred to as a "SAVING"), such Finance Party shall, to the
extent that it can do so without prejudice to the retention of
the relevant saving and subject to such Obligor's obligation to
repay the amount to such Finance Party if the relevant saving is
subsequently disallowed or cancelled (which repayment shall be
made promptly on receipt of notice by such Obligor from such
Finance Party of such disallowance or cancellation), reimburse
such Obligor promptly after receipt of such saving by such
Finance Party with such amount as such Finance Party shall have
concluded acting reasonably to be the amount or value of the
relevant saving.
(ii) In compliance with the foregoing paragraph (b)(i), such Finance
Party shall arrange its Tax and other affairs in whatever manner
it thinks fit save that it shall claim relief from Tax on its
corporate profits, or from any similar Tax liability, in respect
of the Applicable Tax, promptly and act reasonably in all such
circumstances to seek to obtain reliefs, credits or deductions
available to it so as to obtain a saving which can be remitted to
the relevant Obligor. No Finance Party shall be required to
disclose any confidential information relating to the
organisation of its affairs.
(c) Each Finance Party will notify the relevant Obligor through the
Facility Agent promptly of the receipt by such Finance Party of any
saving and of such Finance Party's opinion as to the amount or value
of that saving.
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(d) In respect of United States withholding tax:
(i) GENERAL Each Finance Party that is entitled to an exemption
from or reduction of withholding tax with respect to payments under
this Agreement pursuant to the laws of the United States of America or
any treaty (including any protocol thereto or official exchange of
notes by applicable governmental authorities with respect thereto) to
which the United States is a party shall deliver to Services (with a
copy to the Facility Agent) either a properly executed United States
Internal Revenue Service Form W-9, or two copies of either United
States Internal Revenue Service Form 1001 or Form 4224 (or any
subsequent versions thereof or successors thereto) or, in the case of
a Finance Party claiming exemption from U.S. Federal withholding tax
under Section 871(h) or 881(c) of the Internal Revenue Code ("IRC")
with respect to such payments of "portfolio interest", a Form W-8, or
any subsequent versions thereof or successors thereto (and, if such
Finance Party is not a bank for purposes of Section 881(c) of the IRC,
is not a 10-percent shareholder (within the meaning of Section
871(h)(3) of the IRC) of Services and is not a controlled foreign
corporation (within the meaning of Section 864(d)(4) of the IRC)),
properly completed and duly executed by such Finance Party claiming
complete exemption from, or a reduced rate of, U.S. Federal
withholding tax on payments by Services under this Agreement.
(ii) TIME FOR SUBMITTING DOCUMENTATION Each Finance Party shall
deliver to Services the documentation required to be provided under
clause (i) above on or before the date such Finance Party becomes a
party to this Agreement (save that any Finance Party which is a party
hereto on the date hereof shall deliver such documentation to Services
on the Business Day next following the Unconditional Date) and on or
before the date, if any, such Finance Party changes its Office by
designating a different Facility. In addition, each Finance Party
shall deliver such forms promptly upon the obsolescence or inability
of any form previously delivered by such Finance Party.
Notwithstanding any other provision of this Clause, a Finance Party
shall not be required to deliver any form pursuant to this Clause 13.5
that such Finance Party is not legally able to deliver.
(iii) NOTICE OF CHANGE IN DOCUMENTATION If any Finance Party
determines that it is unable to submit any documentation that it is
obligated to submit pursuant to this Clause 13.5, or that such
Finance Party is required to withdraw or cancel any form or
certificate it previously submitted, such Finance Party shall promptly
notify Services and the Facility Agent of that fact.
13.6 RIGHT TO PREPAY In the event that any such Applicable Tax is required to
be deducted from any payment to be made by any Borrower to any Finance Party
under this Agreement (or on any corresponding payment by the Finance Party to
any other Finance Party under this Agreement) and, in consequence, any Borrower
is or would be obliged under Clause 13.3 to pay any additional amounts to such
Finance Party in respect of the Applicable Tax, such Borrower may prepay the
whole (but not part) of the then outstanding amount of such Finance Party's
participation in the Utilisations made by it, together with all interest and
other charges accrued on those participations and all other amounts payable
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to such Finance Party under the Finance Documents, on giving not less than ten
Business Days' prior written notice to such Finance Party (through the Facility
Agent).
13.7 RECOGNISED BANK Each Finance Party (other than ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit
Partners, L.P.) confirms to each Obligor that it is a Recognised Bank and agrees
to notify Services promptly if it becomes aware that (a) it is no longer a
Recognised Bank, or (b) Clause 13.3 may for any other reason apply in respect of
payments made to it or to the Facility Agent for its account.
13.8 FILINGS Each Treaty Bank has submitted at the time of becoming a Bank, the
appropriate Inland Revenue form (being at the date hereof Form FD13 in the case
of the United States/United Kingdom double tax treaty) to the relevant tax
authorities and, if such form is returned to such Bank by such tax authority,
such Bank shall then promptly submit such form to the United Kingdom Inland
Revenue (FICO Dept.). If a Treaty Bank is or becomes unable for any reason to
submit such form or a Treaty Bank becomes aware that such a form previously
submitted by it is no longer valid or becomes incorrect for any reason, such
Treaty Bank shall notify Services as promptly as practicable. Each Treaty Bank
shall take such other action (including the filing of any other forms) to claim
exemption from taxation as may be reasonably requested by Services.
14. MARKET DISRUPTION
14.1 DISRUPTION EVENTS If, in relation to any Advance or proposed Advance and
any (or the) Interest Period relative thereto:
(a) no (or where there is more than one Reference Bank, only one)
Reference Bank supplies an interest rate to the Facility Agent as
required by the definition of LIBOR after the Facility Agent has
requested such a rate from the Reference Banks; or
(b) the Facility Agent shall have received notification from a Bank or
Banks whose participations in such Advance constitute at least fifty
per cent. (50%) by value of such Advance that by reason of
circumstances affecting the London interbank eurocurrency market (in
the case of any Optional Currency) or the London interbank market (in
the case of Sterling):
(i) matching deposits for the same period as such Interest Period
will not be readily available to them in the London interbank
eurocurrency market (in the case of any Optional Currency) or the
London interbank market (in the case of Sterling) (as the case
may be) in sufficient amounts in the ordinary course of business
to fund their respective participations in such Advance for such
Interest Period; or
(ii) whilst such deposits are so available, the cost of such deposits
exceeds LIBOR as determined in relation to such Advance for such
Interest Period,
the Facility Agent shall promptly give written notice of such determination or
notification to the relevant Borrower, Services (if different) and each of the
Banks.
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14.2 EFFECT The giving of any notice by the Facility Agent pursuant to Clause
14.1(a) or 14.1(b) shall not relieve any Bank of any obligation it may have
under this Agreement to advance, on the relative Utilisation Date, its
participation in any Advance (including any Advance for which a Request was
given prior to such notice by the Facility Agent).
14.3 NEGOTIATION AND SUBSTITUTE BASIS During the period of 15 days after the
giving of any notice by the Facility Agent pursuant to Clause 14.1, the Facility
Agent (in consultation with the Banks) shall negotiate with the relevant
Borrower and Services in good faith with a view to ascertaining whether a
substitute basis (a "SUBSTITUTE BASIS") may be agreed for the making of further
Advances and/or the maintaining of any existing Advances to which such notice by
the Facility Agent related for the current Interest Period relative to those
Advances. If a Substitute Basis is agreed by all the Banks, the relevant
Borrower and Services it shall apply in accordance with its terms from the
commencement of such Interest Period. The Facility Agent shall not agree any
Substitute Basis on behalf of any Bank without the prior consent of that Bank.
14.4 COST OF FUNDS If a Substitute Basis is not so agreed by the relevant
Borrower, Services and all the Banks by the end of the 15 day period, each
Bank's participation in each then existing Advance to which the notice by the
Facility Agent related shall bear interest during the current Interest Period
relative thereto at the rate certified by such Bank to be its cost of funds
(from such sources as it may reasonably select out of those sources then
available to it) for such Interest Period in relation to such Advance, plus the
applicable Margin.
14.5 RIGHT TO PREPAY Where Clause 14.4 applies the relevant Borrower, upon
giving not less than five Business Days' prior written notice (through the
Facility Agent) to any Bank, may prepay the whole (but not part) of the
participation of that Bank in all (but not some only of) the existing Advances
to which the notice by the Facility Agent related and, if so specified in the
notice, in all (but not some only of) the other outstanding Utilisations of that
Borrower, together with all interest accrued on those Advances and all other
amounts payable under this Agreement in connection with the Utilisations
prepaid.
14.6 REVIEW OF SUBSTITUTE BASIS So long as any Substitute Basis is in force or
Clause 14.4 shall apply in relation to any Advance, the Facility Agent, in
consultation with the relevant Borrower, Services and each Reference Bank shall
from time to time, but not less often than monthly, review whether or not the
circumstances referred to in Clause 14.1 still prevail with a view to returning
to the normal interest provisions of this Agreement.
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15. INCREASED COSTS
15.1 INCREASED COSTS Subject to Clause 15.3, if the result of:
(a) any change after the date hereof in or the introduction after the date
hereof of, or any change after the date hereof in the interpretation,
administration or application by any competent court, authority or
organisation in the relevant jurisdiction of, any law, regulation or
treaty or in or of any official directive or official request from, or
the rules of, any governmental, fiscal, monetary or regulatory
(including self-regulatory) authority, organisation or agency (whether
or not having the force of law but, if not having the force of law,
being a regulation, treaty, official directive, official request or
rule which it is the practice of banks in the relevant jurisdiction to
comply with) after the date hereof which affects banks or financial
institutions of the same type as any Finance Party in that
jurisdiction; or
(b) compliance by any Finance Party (or any Holding Company of such
Finance Party) with any such change or introduction;
including, in each case without limitation, those relating to Taxation, change
in currency of a country, reserves, special deposit, cash ratio, liquidity, cash
margin or capital adequacy requirements or other forms of banking, fiscal,
monetary or regulatory controls, is that:
(i) any Finance Party (or any Holding Company of such Finance Party
which is regulated as a financial institution or as a Holding
Company of a financial institution) incurs an increased cost as a
result of its (or such Finance Party's) having entered into, and/or
performing and/or maintaining and/or funding its (or such Finance
Party's) obligations under, any Finance Document; or
(ii) any Finance Party (or any such Holding Company of such Finance
Party) incurs an increased cost in making, funding or maintaining
all or any advances comprised in a class of advances or acceptances
formed by or including its (or such Finance Party's) participation
in some or all of the Utilisations made or to be made under this
Agreement; or
(iii) any amount receivable by any Finance Party under any Finance
Document is reduced (save to the extent matched by a reduction in
the cost of providing the Facilities) or the effective rate of
return to any Finance Party (or any such Holding Company of such
Finance Party) under any Finance Document or on its (or such
Holding Company's) capital employed for the purposes of this
Agreement is reduced; or
(iv) any Finance Party (or any such Holding Company of such Finance
Party) makes any payment or forgoes any interest or other return on
or calculated by reference to any amount received or receivable by
it (or by such Finance Party) from any Obligor or the Facility
Agent or the Security Agent or any other Finance Party under any
Finance
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Document;
and such increased cost (or the relevant proportion thereof), reduction,
payment, forgone interest or other return is not compensated for by any other
provision of this Agreement (including, without limitation, by any Additional
Cost payable pursuant to Clause 11.1(c)), then and in each such case:
(A) such Finance Party shall notify Services through the Facility Agent in
writing of that event promptly upon its becoming aware of the event
including, in reasonable detail, particulars of the event;
(B) subject as provided below and to Clause 2.4(a), within five Business
Days after receipt by any Borrower (directly or through Services) of a
written demand from time to time by such Finance Party through the
Facility Agent accompanied by a certificate of such Finance Party
specifying the amount of compensation claimed and setting out the
calculation of the amount in reasonable detail, such Borrower shall
pay to the Facility Agent for the account of such Finance Party (or,
as the case may be, Holding Company of such Finance Party) such amount
as shall compensate such Finance Party (or such Holding Company) for
such increased cost (or, in the case of (i) or (ii) above, the portion
of such increased cost as is attributable to its making, funding or
maintaining Advances or maintaining its obligation, if any, to
participate in Utilisations under this Agreement), reduction, payment
or forgone interest or other return. Nothing in this Clause shall
oblige any Finance Party (or any Holding Company of such Finance
Party) or the Facility Agent or the Security Agent to disclose any
confidential information relating to the organisation of its affairs.
Notwithstanding the foregoing, any claim by any Finance Party pursuant
to this Clause 15.1 in respect of any period more than 90 days before
such Finance Party gave notice pursuant to paragraph (A) above of the
relevant event shall be disallowed.
15.2 RIGHT TO PREPAY Where Clause 15.1 applies the relevant Borrower, upon
giving not less than five Business Days' notice to that Finance Party (being a
Bank) may prepay the whole (but not part only) of that Finance Party's
participation in all (and not some only of) the outstanding Utilisations,
together with all interest and other charges on or in respect thereof, and all
other amounts payable by it under the Finance Documents to such Finance Party,
provided always that any such notice by such Borrower is given whilst
circumstances exist entitling such Finance Party to claim compensation under
this Clause 15.
15.3 EXCEPTIONS Clause 15.1 shall not apply so as to oblige Services or any
other Borrower to compensate any Finance Party for Applicable Taxes (to the
extent that the provisions of Clause 13.3 fully and effectively compensate
therefor) or for any Taxes which would have been Applicable Taxes save only for
any failure by the relevant Finance Party to satisfy the exception to Clause
13.1 or for any increased cost, reduction, payment or forgone interest or other
return:
(a) resulting from any change in or the introduction of, or any change in
the interpretation or application of, any law, regulation, treaty,
directive, request or rules relating to, or any change in the rate of,
Taxation on the overall net income of such Bank imposed in the
jurisdiction in which such Finance Party's principal office for the
time being is situate or
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on the overall net income of such Finance Party's Facility Office
imposed in the jurisdiction in which that office is situate; or
(b) resulting from the implementation by the applicable authorities having
jurisdiction over such Finance Party and/or its Facility Office of any
directive of the European Union in existence as at the date hereof
and/or the matters set out in the statement of the Basle Committee on
Banking Regulation and Supervisory Practices dated July, 1988 and
entitled "International Convergence of Capital Measurement and Capital
Standards", in each case to the extent, at the rates and according to
the timetable provided for therein as at the date hereof; or
(c) attributable to such Finance Party after the date of this Agreement
entering into a commitment to lend to a third party which is, at the
time that commitment is entered into, in breach of any law,
regulation, treaty, directive, request or rule relating thereto as
aforesaid.
16. ILLEGALITY
If any change after the date hereof in or the introduction after the date hereof
of any law, regulation, treaty 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) official directive or rule of any
governmental, fiscal, monetary or regulatory (including self-regulatory)
authority, organisation or agency, having jurisdiction (together "LAWS"), or any
change after the date hereof in the interpretation, administration or
application of Laws by a competent court or the relevant authority, organisation
or agency or compliance by any Finance Party with any such change or
introduction of Laws or change in interpretation, administration or application
of Laws, shall make it (or make it apparent that it is) unlawful or a breach of
Laws for any Finance Party to make available or fund or maintain the
Utilisations or any part of the Utilisations under this Agreement or to give
effect to its obligations and exercise its rights as contemplated by this
Agreement, that Finance Party may, by notice to Services through the Facility
Agent, declare that to the extent necessary to avoid any such illegality or
breach of Laws its obligations to Services and the other Borrowers under the
Finance Documents shall be terminated forthwith or, if later, on the latest date
to which the obligations may remain in effect without causing the Finance Party
to be in breach of Laws, whereupon:
(a) PREPAY Each Borrower will forthwith, or by such later date as shall
be immediately prior to the illegality or breach in question taking
effect, prepay such part of such Finance Party's participation in the
Utilisations made by such Borrower together with all interest and
other charges accrued thereon to the date of the prepayment and all
other amounts payable to such Finance Party under the Finance
Documents as shall be necessary to avoid any such illegality or breach
by such Finance Party of any Laws; and
(b) COMMITMENTS To the extent necessary to avoid any such illegality or
breach of Laws such Finance Party's Commitments shall be cancelled and
reduced to nil.
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17. MITIGATION
17.1 MITIGATION If circumstances arise in respect of any Finance Party which
would, or upon the giving of notice would, result in the operation of Clause 13,
14, 15 or 16 to the detriment of any Borrower:
(a) such Finance Party shall promptly upon becoming aware of the same
notify the Facility Agent and Services and, upon the written request
of such Borrower, shall enter into discussions with Services and such
Borrower with a view to determining what mitigating action might be
taken by such Finance Party, including discussion of the possibility
of a change in its Facility Office or transfer of its participation in
the Facilities and its Commitments to another bank; and
(b) at the request of Services, the Facility Agent will enter into
discussions with Services with a view to determining what mitigating
action might be taken by the Facility Agent with respect to the
administration of this Agreement by the Facility Agent.
Without limiting or reducing the obligations of the Obligors (or any of them)
under Clauses 13, 14, 15 or 16, the relevant Finance Party, shall upon the
written request of Services take such reasonable steps as may be practical and
open to it to mitigate or remove the effects of such circumstances including,
without limitation, a change in its Facility Office or transfer of its
participation in the Facilities and its Commitments to another bank (or
termination of its Commitments and prepayment of its participation in the
Utilisations coupled with the assumption by another bank of a like participation
and Commitment) reasonably acceptable to or nominated by the relevant Borrower
and Services or the restructuring of its participation in this Agreement in a
manner which will avoid the circumstances in question and on terms acceptable to
the Facility Agent, such Finance Party and the relevant Borrower and Services,
provided that nothing in this Clause shall oblige any Finance Party or the
Facility Agent to take any such step if, in the opinion of such Finance Party or
the Facility Agent (such opinion being conclusive), as the case may be, any such
step might reasonably be expected to have an adverse effect upon its business,
operations or financial condition or the management of its Tax affairs or its
return in relation to its participation in the Utilisations.
17.2 COSTS AND EXPENSES Any costs and expenses reasonably incurred by any
Finance Party pursuant to this Clause 17 shall be paid by the relevant Borrowers
within five Business Days after receipt of a written demand specifying the same
in reasonable detail.
18. GUARANTEE
18.1 GUARANTEE In consideration of the Finance Parties entering into this
Agreement and/or becoming party to this Agreement pursuant to a Substitution
Certificate or otherwise and/or participating or agreeing to participate in any
Utilisation, each Guarantor hereby irrevocably and unconditionally and jointly
and severally:
(a) guarantees to each Finance Party on demand, as principal obligor and
not merely as
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surety (or similar in any applicable jurisdiction), prompt performance
by each other Obligor of all its payment obligations to such Finance
Party under the Finance Documents and the payment of all sums payable
now or in the future to such Finance Party by each other Obligor under
or in connection with the Finance Documents when and as the same shall
become due;
(b) undertakes with each Finance Party that, if and whenever any other
Obligor does not pay any amount when due from it to such Finance Party
under or in connection with any Finance Document, such Guarantor will
on demand pay such amount as if such Guarantor instead of such other
Obligor were expressed to be the primary obligor, together with
interest on that sum at the rate per annum from time to time payable
by that other Obligor on that sum from the date when that sum becomes
payable by such Guarantor under this Agreement until payment of that
sum in full; and
(c) indemnifies each Finance Party on demand against any loss or liability
suffered by it under any Finance Document as a result of any
obligation guaranteed by such Guarantor being or becoming
unenforceable, invalid or illegal.
18.2 CONTINUING GUARANTEE This guarantee is a continuing guarantee and shall
extend to the ultimate balance of all sums payable by the Obligors or any of
them under the Finance Documents.
18.3 REINSTATEMENT Where any discharge (whether in respect of the obligations
of any Obligor, any security for such obligations or otherwise) is made in whole
or in part or any arrangement is made on the faith of any payment, security or
other disposition which is avoided or must be repaid on insolvency,
administration, liquidation or otherwise without limitation, the liability of
each Guarantor under this guarantee shall continue as if there had been no such
discharge or arrangement. Each Finance Party shall be entitled to concede or
compromise any claim that any such payment, security or other disposition is
liable to avoidance or repayment.
18.4 WAIVER OF DEFENCES Except to the extent that such Guarantor is
specifically released in writing or its obligations are specifically waived in a
Waiver Letter, the obligations of each Guarantor under this Agreement shall not
be affected by any circumstance, act, omission, matter or thing which but for
this provision might operate to release or otherwise exonerate such Guarantor
from its obligations hereunder in whole or in part, including without limitation
and whether or not known to any Obligor or any Finance Party:
(a) any time, indulgence or waiver granted to or composition with any
other Obligor or any other person; or
(b) the taking, variation, compromise, exchange, renewal or release of, or
refusal or neglect to perfect or take up or enforce any rights or
remedies against any security or any other Obligor or any other person
or any non-presentment or non-observance of any formality or other
requirements in respect of any instruments or any failure to obtain
the full value of any security; or
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(c) any legal limitation, disability, incapacity, lack of power, authority
or legal personality of, or dissolution or change in the members or
status of, or other circumstance relating to any other Obligor or any
other person; or
(d) any variation (however fundamental and whether or not involving any
increase in the liability of any other Obligor thereunder) or
replacement of any Finance Document or any other document or security
(including without limitation any Substitute Basis agreed pursuant to
Clause 14 and any agreement contemplated by this Agreement) so that
references to such Finance Document or other document or security in
this guarantee shall include each such variation or replacement; or
(e) any unenforceability, illegality, invalidity or frustration of any
obligations of any other Obligor or any other person under any Finance
Document or any other document or security, or any failure of any
other Obligor or proposed additional Obligor to become bound by the
terms of any other Finance Document, in each case whether through any
want of power or authority or otherwise; or
(f) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of any other Obligor
under a Finance Document resulting from any insolvency, liquidation or
dissolution proceedings or from any law, regulation or order,
to the intent that such Guarantor's obligations under this Agreement shall
remain in full force and this guarantee be construed accordingly as if there
were no such circumstance, act, omission, matter or thing.
18.5 IMMEDIATE RECOURSE Each Guarantor waives any right it may have of first
requiring any Finance Party to proceed against or enforce any other rights or
security of or claim payment from or file any proof or claim in any insolvency,
administration, winding up, bankruptcy or liquidation proceedings relating to,
any other Obligor or any other person before claiming from such Guarantor under
this Agreement.
18.6 PRESERVATION OF RIGHTS Until all amounts which may be or become payable by
any and all Obligors to such Finance Party under or in connection with the
Finance Documents have been irrevocably paid and discharged in full (whether by
any Borrower or Guarantor or otherwise), after a claim has been made pursuant to
this guarantee each Finance Party may:
(a) refrain from applying or enforcing any other security, monies or
rights held or received by such Finance Party, as the case may be, in
respect of (or capable of being applied in respect of) such amounts or
apply and enforce the same in such manner and order as such Finance
Party sees fit (whether against such amounts or otherwise) and no
Guarantor shall be entitled to the benefit of the same; and
(b) hold in a suspense account (with liability to pay interest on the
monies held therein at the rate payable to its corporate customers for
deposits in the same currency on like terms and in like amounts) any
monies received from any Guarantor or on account of any Guarantor's
liability under this Agreement.
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18.7 NON-COMPETITION Until all amounts which may be or become payable by any
and all Obligors to any Finance Party under or in connection with the Finance
Documents have been irrevocably paid in full (whether by any Borrower or
Guarantor or otherwise), no Guarantor shall, after a claim has been made on it
pursuant to this guarantee:
(a) be subrogated to any rights, security or monies held, received or
receivable by any Finance Party or be entitled to any right of
contribution or indemnity in respect of any payment made or monies
received on account of any Obligor's liability under any Finance
Document and, to the extent that any Guarantor is so subrogated or
entitled by law, such Guarantor hereby (to the fullest extent
permitted by law) waives and agrees not to exercise those rights or
security or that right of contribution or indemnity;
(b) be entitled or claim to rank as a creditor in the insolvency,
administration, winding-up, bankruptcy or liquidation of any Obligor
in competition with any Finance Party unless otherwise required by the
Facility Agent or by law (in which case the proceeds, if any, of any
claim in respect of any rights, security or monies of any Finance
Party to which such Guarantor was subrogated, filed by such Guarantor
with a receiver or other similar official, will be paid by such
Guarantor to the Facility Agent to be applied in accordance with the
provisions of the Finance Documents); or
(c) be entitled to receive, claim or have the benefit of any payment,
distribution or security from or on account of any Obligor or exercise
any right of set-off as against any Obligor (and, without prejudice to
the foregoing, each Guarantor shall forthwith pay to the Facility
Agent for the Finance Parties an amount equal to any such set-off in
fact exercised by it and forthwith pay or transfer, as the case may
be, to the Finance Parties any such payment or distribution or benefit
of security in fact received by it).
18.8 ADDITIONAL SECURITY This guarantee shall be in addition to and shall not in
any way be prejudiced by any other security (including, without limitation, the
Security Documents) now or hereafter held by any Finance Party as security for
or capable of being applied against the obligations of any Obligor.
18.9 CERTIFICATE A certificate of the Facility Agent as to any amount due from
any Borrower under this Agreement shall, in the absence of manifest error, be
prima facie evidence of such amount as against each Guarantor.
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19. ADDITIONAL BORROWERS, GUARANTORS AND SECURITY
19.1 ADDITIONAL BORROWERS
(a) PA shall use reasonable endeavours to ensure that each of the members
of the TEG Group identified in the Borrowings List as intended to
become a Borrower (or, where more than one member of the PA Group is
identified in respect of any particular Refinancing Debt, whichever of
those members is selected by PA to be the borrower of any funds
borrowed to refinance that Refinancing Debt) shall do so as soon as
the procedures set out in Sections 155 - 158 of the Companies ▇▇▇ ▇▇▇▇
have been completed and the Unconditional Date has occurred in order
that the Borrowings identified in the Borrowings List shall be
refinanced (as and to the extent required by Clause 21.9) by Tranche
1B Advances and/or Tranche 2 Advances borrowed by them, and that all
conditions precedent applicable under Part II of the Seventh Schedule
in respect of the making of Utilisations by those members of the TEG
Group shall be satisfied as promptly as practicable.
(b) PA shall use its reasonable endeavours to ensure that any procedures
set out in Sections 155-158 Companies Act 1985 required to be
completed to permit the relevant members of the TEG Group to refinance
the Borrowings identified in the Borrowings List as required by Clause
19.1(a) shall be implemented:
(i) if the requirements of section 429 Companies Act 1985 for the
implementation of the procedures set out therein shall be met
with respect to the Offer, promptly after the completion of those
procedures; or
(ii) if such requirements shall not be met within the period specified
in section 429(3) Companies ▇▇▇ ▇▇▇▇, promptly after the expiry
of such period.
(c) In order for any wholly owned Subsidiary of PA to become a Borrower,
it and Services (for itself and on behalf of the existing Borrowers
and Guarantors) shall execute and deliver to the Facility Agent a duly
completed Borrower Accession Agreement. If all the Banks confirm to
the Facility Agent their agreement to the relevant Subsidiary becoming
a Borrower (which confirmation is deemed given in respect of the
members of the TEG Group referred to in Clause 19.1(a)), the Facility
Agent shall execute such Borrower Accession Agreement for itself and
on behalf of the other Finance Parties.
(d) Subject to Clause 19.1(e), upon execution of such Accession Agreement
by the relevant Subsidiary as Additional Borrower, Services and the
Facility Agent, such Subsidiary shall become an Additional Borrower in
accordance with the terms hereof and thereof. If included in the
Borrower Accession Agreement, the Additional Borrower's right to make
Utilisations hereunder may be limited in accordance with the terms so
included.
(e) The obligations of the Finance Parties to such Additional Borrower
with respect to the
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making of the first Utilisation to it under this Agreement are subject
to the condition precedent that the Facility Agent shall have received
in form and substance satisfactory to it (acting reasonably) each of
the documents listed in Part II of the Seventh Schedule.
19.2 ADDITIONAL GUARANTORS
(a) The Obligors shall procure that, subject to any provision of law
prohibiting the relevant person from becoming an Additional Guarantor,
the companies identified in Part III of the Seventh Schedule shall in
the case of Peabody Investments, Inc., by the date of the Asset Split
and in any other case, as soon as the procedures set out in Sections
155-158 Companies Act 1985 have been completed and the Unconditional
Date has occurred, each become an Additional Guarantor by (i)
executing and delivering to the Facility Agent a Guarantor Accession
Agreement (duly executed by Services for itself and on behalf of the
existing Borrowers and Guarantors) and (ii) delivering to the Facility
Agent each of the documents listed in Part II of the Seventh Schedule,
each in form and substance satisfactory to the Facility Agent (acting
reasonably).
(b) Where any such prohibition as is referred to above exists, each
Obligor shall use its reasonable endeavours lawfully to overcome the
prohibition.
(c) Services shall use its reasonable endeavours to ensure that any
procedures set out in Section 155-158 Companies Act 1985 required to
be completed (I) to permit the companies identified in Part III of the
Seventh Schedule to give such guarantees, (II) to permit the Companies
identified in Part III of the Seventh Schedule to accede to the terms
of the Debenture as Chargors as required by Clause 19.3(a) and
(III) to permit the other parties thereto to enter into the Tax
Sharing Agreement, shall be implemented:
(i) if the requirements of section 429 Companies Act 1985 for the
implementation of the procedures set out therein shall be met
with respect to the Offer, promptly after the completion of those
procedures; or
(ii) if such requirements shall not be met within the period specified
in S.429(3) Companies ▇▇▇ ▇▇▇▇, promptly after the expiry of such
period.
19.3 ADDITIONAL SECURITY
(a) The Obligors shall procure that:
(i) the Debenture is executed and delivered to the Security Agent
by Services, PA and Finance on or before the Unconditional
Date;
(ii) save where and to the extent that (but only for so long as)
the relevant company is subject to any prohibition from doing
so in any agreement to which any member of the TEG Group is a
party as at the date hereof in respect of any Refinancing
Debt, the companies identified in Part III of the Seventh
Schedule other than
-▇▇-
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Inc. accede to the terms of the Debenture
as Chargors (as defined therein) to secure their own
obligations as Borrowers under the Finance Documents as soon
as reasonably practicable after the date of the first
Utilisation; and
(iii) in the case of Peabody Investments, Inc. by the date of the
Asset Split and in any other case as soon as the procedures
set out in Sections 155-158 Companies Act 1985 have been
completed, the companies identified in Part III of the Seventh
Schedule accede to the terms of the Debenture as Chargors (as
defined therein) to guarantee and secure the obligations under
the Finance Documents of the Obligors from time to time.
(b) Where any such prohibition as is referred to above exists, the
Obligors shall use their reasonable endeavours lawfully to overcome
the prohibition.
(c) The Obligors shall at their own expense and as soon as reasonably
practicable following a request from the Security Agent execute and do
all such assurances, acts and things as the Security Agent may
reasonably require (i) for perfecting or protecting the security
intended to be afforded by the Security Documents (and shall deliver
to the Security Agent such directors and shareholders resolutions,
title documents and other documents as the Security Agent may
reasonably require), or (ii) for facilitating the realisation of all
or any part of the assets which are subject to the Security Documents
and the exercise of all powers, authorities and discretions vested in
the Security Agent or in any receiver of all or any part of those
assets.
20. REPRESENTATIONS AND WARRANTIES
20.1 REPRESENTATIONS AND WARRANTIES ON AND FROM THE DATE HEREOF On and from
the date hereof, each Obligor (or in the case of Clause 20.1(1), Services and PA
only) represents and warrants to each of the Finance Parties (but, in the case
of any Obligor other than Services, only in relation to itself and its
Subsidiaries or Material Subsidiaries for the time being (as the case may be))
that:
(a) STATUS It is (and each of its Material Subsidiaries is) a company,
duly incorporated and validly existing under the laws of the place of
its incorporation and has the power to own its property and assets and
carry on its business as it is now being and will be conducted.
(b) POWERS AND AUTHORITY It has the corporate power to enter into and
perform the Finance Documents and any other Transaction Documents to
which it is a party and the transactions to be implemented pursuant
thereto and has taken all necessary corporate action to authorise its
entry into and performance of those documents and transactions.
(c) LEGAL VALIDITY Subject to the Reservations, this Agreement
constitutes, and any and each other Transaction Document to which it
is or will become a party (when executed by it or on its behalf) will
constitute, its legal, valid and binding obligations and (without
limiting the generality of the foregoing) any Security Document to
which it is a party creates the
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security interests which that Security Document purports to create or,
as the case may be, accurately evidences a security interest which has
been validly created.
(d) NON-CONFLICT The entry into and performance by it of this Agreement
and any and each other Transaction Document to which it is a party and
the transactions to be implemented pursuant to those documents do not
and will not conflict with:
(i) any law or regulation or any official or judicial order
applicable to it or any Licence or any Licence Undertaking;
(ii) its memorandum or articles of association, statutes, by-laws
or other constitutional or governing documents or any of its
resolutions (having current effect); or
(iii) any agreement or instrument to which it or any Subsidiary of
it is a party or which is binding upon any of them or on its
assets or those of any such Subsidiary (other than those
agreements or instruments referred to in the Borrowings List
to the extent that the liability is not materially greater
than that indicated in the Borrowings List) in such a manner
or to such an extent as to have a Material Adverse Effect, nor
will it result in the creation or imposition of any
Encumbrance on any of its assets or those of any Subsidiary
(save for any Encumbrance permitted to exist by the terms of
this Agreement).
(e) NO DEFAULT
(i) no Event of Default has occurred and is continuing which has
not been waived; and
(ii) no event has occurred and is continuing which has not been
waived and which constitutes or which, with the giving of
notice or expiry of any grace or cure period, is reasonably
likely to constitute a default under or in respect of any
other agreement or document to which it or any Material
Subsidiary of it is a party (and any such event which by
reason of express provisions in any such agreement or document
requires satisfaction of a condition as to materiality
(including, without limitation the existence or absence of an
opinion or determination as to materiality) before it may
constitute a default shall not be considered reasonably likely
to constitute a default unless that condition is satisfied) in
such a manner or to such an extent as to have a Material
Adverse Effect.
(f) CONSENTS Any and all authorisations, approvals, consents, licences,
exemptions, filings, registrations and other matters required on the
part of any Obligor or TEG or any Material Subsidiary pursuant to any
law or the terms of the Licence or any Licence Undertaking for or in
consequence of (i) the Offer, and/or (ii) the entry into and
performance by it of and/or the validity of any of the Finance
Documents and/or the Transaction Documents to which it is a party or
the transactions to be implemented
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pursuant thereto and/or (iii) the continued carrying on of the
business of TEG and the Services Group in the ordinary course, have
been obtained or effected or will be obtained or effected prior to the
date required by law, in each case, to the extent that failure to do
so would have a Material Adverse Effect, save (in the case of (ii))
for the filing in the United Kingdom of the prescribed particulars of
the Security Documents pursuant to section 395 of the Companies ▇▇▇
▇▇▇▇ (as amended), the registration of the transfers of the shares
which are the subject of mortgages and other Encumbrances created by
the Security Documents and other filings and registrations necessary
in connection with the enforcement of the Security Documents.
(g) ACCOUNTS
(i) Its Accounts most recently delivered to the Facility Agent
under Clause 21.2 (a) have been prepared, save as disclosed in
notes to or accompanying those Accounts, in accordance with
the provisions of Clause 21.2(d) and (in the case of audited
annual Accounts) present a true and fair view of or (in the
case of unaudited Accounts) fairly present its and (if
consolidated Accounts) its Subsidiaries' financial position as
at the Accounting Date to which the same were prepared and/or
(as appropriate) the results of operations and (in the case of
annual Accounts) cashflow during the Accounting Period ending
on the relevant Accounting Date, subject, in the case of
quarterly and monthly Accounts, to normal year end adjustments
and to the lack of notes thereto.
(ii) Each of the information, reports and documents delivered to
the Facility Agent under Clause 21.2(b) was true and accurate
in all material respects as of the date thereof and did not
omit any material information required to be included therein.
(iii) (I) The Model was prepared in accordance with the Applicable
Accounting Principles with due care, (II) to the best of
Services's and PA's knowledge and belief (reasonable enquiry
having been made) the Model taken as a whole together with the
assumptions on which it is based is not misleading in any
material respect, and all projections and assumptions used for
the purposes of the Model were arrived at after careful
consideration and to the best of Services's and PA's knowledge
and belief were based on reasonable grounds. All such
projections are illustrative exercises but the actual results
may be materially affected by changes in economic and other
circumstances. The reliance which can be placed on the
projections is a matter of commercial judgment. No
representation or warranty is made that any projection will be
achieved.
(h) LITIGATION No litigation, arbitration or administrative or regulatory
proceedings or investigations for which process or initiation claims
have been served on it or any of its Material Subsidiaries and, to its
knowledge, no litigation, arbitration, administrative or regulatory
proceedings involving it or any of its Material Subsidiaries are
pending or threatened, which are reasonably likely to be determined
adversely to it or to such Subsidiary, and which, if so adversely
determined, would have a Material Adverse
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Effect.
(i) TAX LIABILITIES No claims are being or are reasonably likely to be
asserted against it or any of its Subsidiaries with respect to Taxes
which are reasonably likely to be determined adversely to it or to
such Subsidiary and which, if so adversely determined, would have a
Material Adverse Effect. It and each of its Subsidiaries is not
materially overdue in the filing of any Tax returns required to be
filed where failure to make such filing would have a Material Adverse
Effect, and it and any of its Subsidiaries had paid all Taxes shown to
be due on any Tax returns required to be filed by it or on any
assessments made against it (other than any being contested in good
faith by appropriate process in respect of which adequate reserves are
being maintained) non-payment, or a claim for payment, of which would
in each such case have a Material Adverse Effect.
(j) ENCUMBRANCES No Encumbrance exists over its or any of its
Subsidiaries' assets which would cause a breach of Clause 21.3(a) of
this Agreement.
(k) INFORMATION MEMORANDUM (This representation and warranty is given
only upon issue and approval by Services in writing of an Information
Memorandum). All material factual information in relation to the PA
Group contained in the Information Memorandum was true (or, in the
case of information provided by any person other than Services or PA
or its or their advisors or relating to TEG or any of its
Subsidiaries, was true to the best of Services's or PA's knowledge and
belief) in all material respects at the date (if any) ascribed thereto
in the Information Memorandum. Any and all expressions of opinion or
intention in relation to the PA Group and any projections in relation
to the PA Group contained in the Information Memorandum were arrived
at after careful consideration and to the best of Services's and PA's
knowledge and belief (reasonable enquiry having been made) were based
on reasonable grounds. All such projections are illustrative
exercises but the actual results may be materially affected by changes
in economic and other circumstances. The reliance which can be placed
on the projections is a matter of commercial judgment. No
representation or warranty is made that any projection will be
achieved. In all other respects, the Information Memorandum, taken as
a whole, as of its date (insofar as based on information provided by
any person other than Services or PA or its or their advisors or
relating to TEG or any of its Subsidiaries, to the best of Services's
or PA's knowledge or belief) was not misleading in any material
respect in relation to the PA Group and did not omit to disclose any
matter failure to disclose which would result in any material
information in relation to the PA Group contained in the Information
Memorandum being misleading in any material respect in the context of
this Agreement.
(l) ACQUIRED ASSETS All of the Shares which are acquired by it (whether
pursuant to the Offer, the implementation of the procedures set out in
section 429 et seq. Companies ▇▇▇ ▇▇▇▇ or by transfer from PGH) will
be beneficially owned by PA and PA will be entitled forthwith (but
subject to registration in the shareholders' register of TEG of the
transfer of those Shares, which registration will be completed as soon
as reasonably practicable) to become the legal registered owner of
such Shares free from all Encumbrances, claims and
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competing interests whatsoever save as expressly permitted or created
pursuant to the Finance Documents.
(m) OWNERSHIP OF ASSETS Save to the extent disposed of without breaching
the terms of any of the Finance Documents, it and each of its
Subsidiaries has good title to or valid leases or licences of or is
otherwise entitled to use all material assets necessary properly to
conduct its business the absence of which would have a Material
Adverse Effect.
(n) DOCUMENTS
(i) The documents delivered to the Facility Agent by or on behalf of
any Obligor pursuant to Clause 4.1 and any other provision of the
Finance Documents were genuine and in the case of copy documents,
were true, complete and accurate copies in all material respects,
of originals which had not been amended, varied, supplemented or
superseded in anyway which would be likely to affect materially
and adversely the interests of the Banks under the Finance
Documents (taken as a whole), save as consented to pursuant to a
Waiver Letter.
(ii) The Press Release and Offer Document and any other documents
relating to the Offer furnished to the Facility Agent, contain
all the material terms of the Offer. The terms of the Offer set
out in the Offer Document correspond to the terms of the Offer
set out in the Press Release in all material respects.
(o) ENVIRONMENTAL MATTERS
(i) It and its Subsidiaries have obtained any and all requisite
Environmental Licences required for the carrying on of its
business as currently conducted and have at all times complied
in all material respects with (A) the terms and conditions of
such Environmental Licences and (B) all other applicable
Environmental Law which in each case, if not obtained and
complied with, would have a Material Adverse Effect, and there
are to its knowledge no circumstances which may prevent or
interfere with such compliance to that extent in the future.
(ii) No Dangerous Substance has been used, disposed of, generated,
stored, transported, dumped, released, deposited, buried or
emitted at, on, from or under any site or premises (whether or
not owned, leased, occupied or controlled by any Obligor or
any of its Subsidiaries and including any offsite waste
management or disposal location utilised by any Obligor or any
such Subsidiary) in circumstances where this would be likely
to result in the imposition of a liability on any Obligor
which would have a Material Adverse Effect.
(iii) There is no Environmental Claim (whether in respect of any
site previously or currently owned or occupied by any member
of the Services Group or otherwise) pending or threatened, and
there are no past or present acts, omissions, events or
circumstances that would be likely to form the basis of any
Environmental Claim
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(whether in respect of any site previously or currently owned
or occupied by any member of the Services Group or otherwise),
against that Obligor or any of its Subsidiaries which in each
case is reasonably likely to be determined against that
Obligor or Subsidiary and which if so decided would have a
Material Adverse Effect.
(p) SERVICES AND PA At the first Utilisation Date, save as arises or is
contemplated under or in connection with the Transaction Documents or
the Offer or referred to in the Structure Memorandum and save also for
Offer Costs, neither Services nor PA will have any material
commitments or indebtedness.
(q) LICENCE
(i) Each Licenceholder has been duly authorised by either the
Director General or the Secretary of State under Section 6 of
the Act to generate and/or supply (as appropriate in each
case) electricity and each Licence is in full force and effect
except to the extent a replacement licence(s) is/are to be
granted to a member or members of the TEG Group or (after the
Unconditional Date) the PA Group in its place (if such
replacement licence(s) is/are then required by statute or by
regulation by a company to carry on the business of the
relevant Licenceholder as carried on as at the date hereof),
when such replacement licence(s) is/are to be in full force
and effect;
(ii) no Licenceholder is in contravention of or, as a result of the
implementation of the Offer or the consummation of the
transactions herein or therein contemplated, would be in
contravention of:
(A) any term or condition of any Licence; or
(B) any requirement of the Act or any regulations made
thereunder; or
(C) any other statutory requirement or any final order or
confirmed provisional order made under the Act; or
(D) any undertaking given by it to the Director-General or
the Secretary of State in relation to the conduct of
its business as a generator of electricity or as a
public electricity supplier (as the case may be),
the contravention or consequence of which is reasonably likely
to have a Material Adverse Effect;
(iii) neither the Director-General nor the Secretary of State has
given notice to revoke a Licence except where a replacement
licence(s) is/are to be granted to a member or members of the
TEG Group or (after the Unconditional Date) the PA Group in
its place (if such replacement licence(s) is/are then required
by statute or by
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regulation by a company to carry on the business of the
relevant Licenceholder as carried on as at the date hereof);
(iv) save as described in writing to the Facility Agent no
amendment of any of the terms of a Licence has been made or
proposed which is reasonably likely to have a Material Adverse
Effect; and
(v) there are no Licence Undertakings, other than those copies (or
a reasonable summary) of which have been delivered to the
Facility Agent.
(r) STRUCTURE MEMORANDUM All those matters (including, without
limitation, capitalisations, reorganisations, transfers, debt
repayments and receipts) as described in the Structure Memorandum
which are indicated in the Structure Memorandum to occur prior to or
at or immediately after first Utilisation hereunder have been or will
at or immediately after such Utilisation Date be completed in all
material respects as contemplated thereby. Each flow of funds shown
in the Structure Memorandum as occurring prior to or at or immediately
after first Utilisation hereunder has been or will be completed
substantially as contemplated in the Structure Memorandum.
20.2 REPETITION The representations and warranties set out in Clause 20.1 shall
survive the execution of this Agreement and the making of each Utilisation
hereunder and shall be made on the date hereof and (other than the
representations and warranties set out in Clause 20.1(g)(iii)) shall, subject to
Clause 24.4, be deemed to be repeated on the date of delivery of each Request
hereunder and on each Utilisation Date and on each Interest Date, with reference
to the facts and circumstances then subsisting, as if made at each such time,
provided that:
(a) the representation and warranty set out in Clause 20.1(k) shall be
made only on the date of issue and approval by Services or PA in
writing of any Information Memorandum;
(b) the representations and warranties set out in Clauses 20.1 (h), (i),
(l), (n)(ii), (p) and (r) shall not be repeated after the first
Utilisation Date; and
(c) prior to the Unconditional Date the representation and warranty set
out in Clause 20.1(q)(v) shall be qualified by the actual knowledge of
Services and PA.
21. UNDERTAKINGS
21.1 DURATION The undertakings in this Clause 21 shall remain in force from and
after the date hereof and so long as any amount is or may be outstanding under
this Agreement or any Commitment is in force and, in the case of any Obligor
other than Services, are given only in relation to itself and its Subsidiaries
for the time being.
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21.2 INFORMATION AND ACCOUNTING STANDARDS
(a) ACCOUNTS Services shall furnish or procure that there shall be
furnished to the Facility Agent in sufficient copies for each of the
Banks:
(i) as soon as practicable after the end of each annual Accounting
Period:
(I) (and in any event within 180 days thereof) the audited
consolidated accounts of itself and of the PA Group for
such Accounting Period;
(II) (and in any event within 180 days thereof) the audited
accounts of itself and each Material Subsidiary for such
Accounting Period, to the extent required to be prepared
by law,
in each case comprising at least an audited (in the case of PA,
consolidated) balance sheet and profit and loss account and in
the case of the PA Group, cash flow statement for such Accounting
Period;
(ii) (I) as soon as practicable (and in any event within 90 days)
after the end of the first quarterly Accounting Period to
commence after the Unconditional Date, an unaudited
profit and loss statement, balance sheet and cash flow
statement of the PA Group for such quarterly Accounting
Period in the form customarily prepared by management;
and
(II) as soon as practicable (and in any event within 60 days)
after the end of each quarterly Accounting Period
commencing with the second quarterly Accounting Period to
commence after the Unconditional Date (or, if PA wishes,
any earlier Accounting Period ending after the first
Utilisation Date), the unaudited consolidated accounts of
the PA Group for such quarterly Accounting Period showing
at least the detailed information necessary to determine
PA's compliance with its obligations under Clause 23.1,
and in each case comprising at least a consolidated
balance sheet, profit and loss account and cash flow
statement for such Accounting Period;
(iii) at the same time as the Accounts for any annual
Accounting Period are delivered (or, if not delivered,
required to be delivered) pursuant to paragraph (i)
above:
(I) a report of the Auditors setting out in reasonable detail
computations establishing, as at the date of such
Accounts, whether each of the financial ratios set out in
Clause 23.1 were complied with; and
(II) a certificate signed by the Chief Financial Officer,
stating that, so far as he is aware upon due inquiry, as
at the date of such certificate no Default
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has occurred and is then continuing which has not
previously been waived pursuant to a Waiver Letter or
providing details of any such Default of which he is
aware upon due inquiry and of the remedial action
proposed to be taken; and
(III) a certificate signed by the Chief Financial Officer
identifying the Material Subsidiaries and setting out the
result for each of them of the calculation of the tests
provided for in the definition of Material Subsidiary in
Clause 1.1 to determine the identity of the Material
Subsidiaries and applied by reference to such Accounts;
(iv) at the same time as the Accounts for any quarterly Accounting
Period are delivered (or, if not delivered, required to be
delivered) pursuant to paragraph (ii) above a certificate, signed
by the Chief Financial Officer:
(I) setting out in reasonable detail computations
establishing, as at the date of such Accounts, whether
each of the financial ratios set out in Clause 23.1 was
complied with; and
(II) stating that, so far as he is aware upon due inquiry as
at the date of such certificate no Default has occurred
and is then continuing which has not been previously
waived pursuant to a Waiver Letter or providing details
of any such Default of which he is aware upon due inquiry
and of the remedial action proposed to be taken;
(v) at the same time as delivered to the Director General pursuant to
Condition 2 of Part II of any Licence held by any member of the
Services Group, copies of the accounting statements delivered to
the Director General pursuant thereto after the Unconditional
Date;
(vi) as soon as practicable after the Unconditional Date (and in any
event no later than the date of delivery, or, if not delivered,
the last date for delivery, of Accounts pursuant to Clause
21.2(a)(ii) for the first full quarterly Accounting Period
commencing after the Unconditional Date) consolidated unaudited
accounts of the PA Group prepared on a pro forma basis for the
three consecutive quarterly Accounting Periods last commencing
(on a pro forma basis as described below) before the
Unconditional Date, showing at least the detailed information
necessary to determine the PA Group's compliance with its
obligations under Clause 23.1 and comprising at least a
consolidated balance sheet, profit and loss account and cash flow
statement for such Accounting Periods and all prepared as if:
(I) the Unconditional Date had occurred on the first day of
the first of those three pro forma Accounting Periods
(and as if PA had then been in existence);
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(II) all Utilisations had been made on dates falling at the
same intervals after the Unconditional Date taken to have
occurred as aforesaid as was the case relative to the
actual Unconditional Date (but nevertheless applying the
actual interest rates determined and applicable
hereunder); and
(vii) accounts and other written financial information of EnergyCo
required to be supplied to the EnergyCo Lenders pursuant to
the EnergyCo Facility Agreement at such time as they are
delivered to them.
(b) NOTIFICATIONS Services shall furnish or procure that there shall be
furnished to the Facility Agent in sufficient copies for each of the
Banks:
(i) promptly after becoming aware of the same being instituted or
threatened and that, in the case of (A) below, the same could
reasonably be expected to have a Material Adverse Effect,
details of any material litigation, arbitration or
administrative proceedings involving it or any of its
Subsidiaries which:
(A) could reasonably be expected to have a Material Adverse
Effect; or
(B) involves the Director General, the Secretary of State,
any Licence held by any member of the Services Group or
any Licence Undertaking;
(ii) promptly, such further information regarding its financial
condition, business and assets and that of the Services Group
and/or any member thereof (including any requested explanation
of any item in any Accounts) as the Facility Agent or the
Majority Banks through the Facility Agent may reasonably
request from time to time (subject to any duty of
confidentiality);
(iii) promptly, upon being notified of the same, details of all
transfers of shares (other than pursuant to the Debenture) by
any member of the Services Group in the share capital of any
Obligor, and details of any issue or transfer of shares (other
than pursuant to the Debenture) in the capital of any Material
Subsidiary made by any member of the Services Group after the
date hereof to any person who is not a member of the PA Group;
(iv) written details of any Default promptly after becoming aware
of the same, and of any remedial steps being taken and/or then
proposed to be taken in respect of that Default;
(v) during the period from the date of issue and approval by
Services of the Information Memorandum to the earlier of (A)
the date six months thereafter, and (B) the close of general
syndication of the Facilities as determined and confirmed to
Services by the Facility Agent, Services will notify the
Facility Agent in reasonable detail of any matters (whether
occurring prior to or after the date of
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approval and issue of the Information Memorandum) which (to
the knowledge of the Chief Financial Officer and, after the
Unconditional Date only, of the executive directors of TEG)
cause the Information Memorandum taken as a whole when read
without knowledge of such matters to be inaccurate or
misleading in any material respect;
(vi) promptly upon becoming aware that any modifications to the
Licence are being proposed by the Director-General or the
Secretary of State and/or that any Licence Undertaking is
being requested by the Director General or the Secretary of
State, reasonable details thereof, to be updated from time to
time to reflect any changes, provided that such details shall
be required to be reported to the Facility Agent hereunder,
only to the extent that if such proposed modifications were to
be made to the Licence or any such Licence Undertaking given,
compliance with such modification or undertaking would have a
Material Adverse Effect;
(vii) promptly upon EnergyCo and/or Services making any filing
(which is or will be available for public inspection) with the
Securities and Exchange Commission, a copy thereof;
(viii) or to the English legal advisers to the Facility Agent, the
Offer Document and each draft of the Offer Document produced
on after the date of the Press Release and delivered to TEG;
and
(ix) on the date on which Accounts are first furnished in
accordance with Clause 21.2(a)(ii) and (vi), a certificate
signed by the Chief Financial Officer identifying the Material
Subsidiaries and setting out the result for each of them of
the calculation of the tests provided for in the definition of
Material Subsidiary in Clause 1.1. to determine the identity
of the Material Subsidiaries, applied by reference to such
Accounts.
(c) AUDIT AND ACCOUNTING DATES PA will ensure that:
(i) the annual Accounts to be delivered to the Facility Agent
pursuant to Clause 21.2(a)(i)(I) are audited by the Auditors;
(ii) PA shall at all times have duly appointed Auditors or, in the
event of resignation of the Auditors, shall appoint
replacement Auditors within a reasonable time;
(iii) each financial year and each quarterly Accounting Period of
the PA Group shall end on an Accounting Date; and
(iv) each of its financial years and each financial year of each
Subsidiary (other than any Licenceholder and its Subsidiaries)
shall end on an Accounting Date in December, and no member of
the PA Group will change its financial year end (other than to
an Accounting Date in December) without the prior written
consent
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of the Facility Agent.
(d) ACCOUNTING STANDARDS PA will ensure that all consolidated
Accounts of the PA Group shall be prepared in accordance with the
Applicable Accounting Principles and (except in the case of annual
audited Accounts provided pursuant to Clause 21.2(a)(i)(I)) in
substantially the same format and with substantially the same headings
and other characterisations as in the Base Financial Statements, or
shall indicate in notes to or a letter accompanying such Accounts any
material departures from the Applicable Accounting Principles and/or
such format, headings and characterisations.
(e) DEPARTURES Where any consolidated Accounts of the PA Group have
been prepared in any respect so as to depart materially from the
Applicable Accounting Principles and/or the format, headings and
characterisations as applied and/or set out in the Base Financial
Statements, Services shall provide or procure that there is provided
to the Facility Agent a written explanation of such departure which
the Facility Agent shall forward to the Banks. If the Majority Banks
and PA agree, such departure shall become part of the Applicable
Accounting Principles. If the Majority Banks and PA do not so agree,
the Facility Agent and PA shall negotiate in good faith to agree to
any amendments to this Agreement (including, but not limited to, any
amendment required to be made to the covenants set out in Clause 23.1
(and the related definitions in Clause 1.1)) which would, if such a
departure were to become part of the Applicable Accounting Principles
ensure that the Finance Parties position and the protection afforded
to them pursuant to Clauses 23.1 and 23.2 is maintained. If such
amendments are made to this Agreement then such departures shall
become part of the Applicable Accounting Principles. Unless and until
such agreement or amendment (as the case may be) is made, such
departure shall not become part of the Applicable Accounting
Principles and the Majority Banks may require that PA include in each
Reconciliation Statement a statement that such departure has not
altered any of the numerical information required for the purpose of
establishing whether or not PA is in compliance with its obligations
under Clause 23.1 or (if it has) setting out the effects of such
alteration in reasonable detail.
21.3 SECURITY VALUE
(a) NEGATIVE PLEDGE No Obligor will, and each Obligor will procure that
no other member of the Services Group will, create or permit to
subsist any Encumbrance on the whole or any part of its respective
present or future businesses, assets or undertakings, except for the
following:
(i) Encumbrances constituted or evidenced by the Security
Documents;
(ii) Encumbrances expressly permitted by a Waiver Letter, provided
that, except to the extent permitted by any of the following
exceptions, the principal amount of the indebtedness secured
by such Encumbrances shall not at any time be increased beyond
the amount so permitted, save as permitted by a further Waiver
Letter;
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(iii) Encumbrances arising by operation of law (or by agreement to
the same effect) in the ordinary course of business and not as
a result of any default or omission on the part of any member
of the Services Group, including without limitation (but
subject as aforesaid) (A) any rights of set-off with respect
to demand or time deposits with financial institutions and
bankers' liens with respect to property held by financial
institutions, save in each case where such arrangements are
deliberately established for the purpose of affording security
to the bank or financial institution concerned and (B)
Encumbrances with respect to Taxes;
(iv) Encumbrances over goods and documents of title to goods (and
related insurances) created or arising in the ordinary course
of letter of credit transactions entered into in the ordinary
course of trade;
(v) Encumbrances over assets (other than the Shares) acquired by
members of the PA Group and existing at the date of their
acquisition but not created in contemplation of their
acquisition, provided that the maximum principal amount
secured by any such Encumbrances is not prohibited by Clause
21.4 and shall not be increased beyond the maximum principal
amount secured thereby at the date of such acquisition unless
otherwise permitted pursuant to the other provisions of this
Clause;
(vi) Encumbrances over credit balances on accounts of members of
the PA Group with a bank or financial institution created in
order to facilitate the operation of such accounts and other
accounts of such members of the PA Group with the same bank on
a net balance basis with or without credit balances and debit
balances on the various accounts being netted off for interest
purposes or to comply with any net limit, or for cash
management purposes, or as part of a back-to-back or similar
arrangement;
(vii) any Encumbrance created under or in connection with or arising
out of any pooling and settlement and onshore transportation
arrangements or agreements (including but without limitation
the Pooling and Settlement Agreement (in the case of
electricity) and the Network Code (in the case of gas)) of the
electricity or gas generation, transportation, distribution
and/or supply industry or telecommunications or water industry
or energy or energy- related business or any transactions or
arrangements entered into in a form usual in any such industry
or business;
(viii) any Encumbrance on Cash and Cash Equivalent Investments
deposited in satisfaction of any requirement to place margin
deposits to secure obligations in respect of Derivative
Transactions provided that the aggregate of such deposits
shall not at any time exceed an amount equal to the aggregate
of (i) L10,000,000 or the equivalent in other currencies, and
(ii) an amount (the "SUPPLEMENTAL AMOUNT") equal to ten
percent (10%) of the amount by which the Total
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Commitment at the date hereof exceed the Total Commitments at
the relevant date Provided such Supplemental Amount has been
used to secure obligations in respect of Derivative
Transactions effected in connection with Borrowings or Hybrid
Preferred Securities the net proceeds of which have been used
to repay the Facilities permanently;
(ix) the right of a counterparty to two or more Derivative
Transactions effected with the same member of the PA Group to
close out such Derivative Transactions if applicable margin
and other requirements are not met and apply any proceeds to
any resulting balance due;
(x) any Encumbrance over goods purchased in the ordinary course of
business arising by virtue of retention of title clauses in
suppliers' standard terms of business, (or on terms more
favourable to the PA Group) securing only the unpaid purchase
price of goods supplied;
(xi) any Encumbrance created by or over the shares or any other
ownership interest in or loans to and/or the assets of a
Project Finance Subsidiary;
(xii) any Encumbrance listed in the Tenth Schedule;
(xiii) any Encumbrance created over shares and/or other securities
held in any clearing system or listed on any exchange which
arise as a result of such shares and/or securities being so
held in such clearing system or listed on such exchange as a
result of the rules and regulations of such clearing system or
exchange;
(xiv) any Encumbrance created by or over the shares of or any other
ownership interest in or loans to and/or the assets of any
Subsidiary (incorporated in a country other than the United
Kingdom, other than where the sole or principal activity of
such Subsidiary is to act as the holding company of any other
Subsidiaries as described in this paragraph (xiv)) and whose
sole or principal activity is (or, after the acquisition,
construction or development thereof, is intended to be) the
ownership (whether in whole or in part) and/or operation of a
facility for the production of heat or generation of
electricity and/or a network for the distribution and/or
supply of gas, electricity and/or heat, and/or other
energy-related facility, or activities related thereto in each
such case not within the United Kingdom, or to act as a
holding company for one or more such Subsidiaries.
(xv) any Encumbrance existing on or over the assets of a person
(other than a person which is a member of the TEG Group at the
date of this Agreement) when it becomes a member of the
Services Group after the date of this Agreement, but only if:
(A) the Encumbrance was not created in contemplation of
that person
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becoming a member of the Services Group; and
(B) the maximum principal amount of the indebtedness
secured by the Encumbrance is not subsequently
increased unless otherwise permitted pursuant to any
other provision of this Clause 21.3;
(xvi) any Encumbrance over any asset (other than the Shares)
acquired by a member of the Services Group after the date of
this Agreement as security for, or for indebtedness incurred
to finance or refinance (within 6 months of the acquisition
of that asset), all or part of the consideration for that
acquisition and/or any facility required for working capital
and/or general corporate purposes for the business and/or
persons so acquired and/or any related Derivative
Transactions;
(xvii) any Encumbrance created pursuant to a sale and leaseback,
hire purchase or other similar transaction to secure the
obligations of a member of the Services Group;
(xviii) any Encumbrance arising pursuant to a finance lease as
defined by the Applicable Accounting Principles;
(xix) any Encumbrances over cash deposited with a bank (a)
securing liabilities in respect of a letter of credit issued
by such bank in support of obligations of a member of the PA
Group which obligations are on the Borrowings List or which
obligations do not constitute Borrowings, or (b)
collateralising obligations of any member of the PA Group
incurred in respect of any obligation on the Borrowings
List; and
(xx) Encumbrances (other than over the Shares and shares in the
capital of a member of the Services Group) not otherwise
permitted pursuant to paragraphs (i)-(xix) (inclusive) above
together securing indebtedness in an aggregate principal
amount not exceeding at any time L75,000,000 (or its
equivalent in other currencies),
Provided that, PA may at any time require by not less than 5 Business
Days notice to the Facility Agent that any Borrowing is secured (PARI
PASSU with or on a basis subordinated to the Facilities) by the
Encumbrances constituted or evidenced by the Security Documents where:
(A) all of the net proceeds of that Borrowing are applied in
prepayment in part or in whole of the Facilities;
(B) that Borrowing:
(I) does not have a maturity date,
(II) is not voluntarily prepayable (otherwise than pro rata
with the Facility), and
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(III) does not amortise
before the Final Repayment Date;
(C) the creditors in respect of that Borrowing (or their agent or
trustee) have entered into an intercreditor agreement providing
that, so long as any amounts or commitments remain owed to or
available from any Finance Party, the Banks shall maintain
control of voting rights with respect to the Encumbrances
constituted or evidenced by the Security Documents (except to the
extent otherwise provided in that intercreditor agreement on
terms approved (which approval shall not be unreasonably
withheld) by the Majority Banks); and
(D) immediately after that Borrowing and partial prepayment, no
Default will be continuing.
(b) TRANSACTIONS SIMILAR TO SECURITY No Obligor will, and
each Obligor will procure that no member of the Services
Group will, save as permitted by a Waiver Letter purchase
any asset on terms providing for a retention of title by
the vendor or on conditional sale terms or on terms
having a like substantive effect to any of the foregoing,
except for assets purchased in the ordinary course of
business as provided in Clause 21.3(a)(x) above and any
assets in respect of which, if the same were the subject
of any Encumbrance arising as a result of such
transaction, such Encumbrance would not be prohibited by
the terms of Clause 21.3(a).
(c) DISPOSALS No Obligor will, and each Obligor will procure that no
member of the Services Group will, save as permitted by a Waiver
Letter or by Clause 21.3 (a), either in a single transaction or in a
series of transactions whether related or not and whether voluntarily
or involuntarily, sell, transfer, lease or otherwise dispose of:
(i) any Shares and any shares in EE or in any Holding Company
thereof;
(ii) all or any substantial part of the assets or undertaking of the
Group taken as a whole (not being an asset referred to in
paragraph (i) above), other than:
(A) disposals in the ordinary course of trading;
(B) in any annual Accounting Period, disposals of assets by
any member of the PA Group, (I) the gross value of which
(based, in relation to a disposal occurring before the
first delivery of any Accounts in accordance with Clause
21.2(a)(i)(I), on the Base Financial Statements, and in
relation to disposals occurring thereafter, on the
audited consolidated Accounts of the PA Group most
recently delivered to the Facility Agent) when aggregated
with all other disposals by each member
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of the PA Group during such annual Accounting Period not
permitted by any other paragraph of this Clause
21.3(c)(ii), does not exceed an amount equal to 10% of
the consolidated gross assets of the TEG Group as shown
in the Base Financial Statements or, as the case may be,
the PA Group as shown in such Accounts and (II) in
respect of which the Net Proceeds of such disposal will
be applied (A) within one year of receipt in or towards
acquiring for any member of the PA Group assets of a type
ordinarily employed in the operation of any business
permitted by Clause 21.10(a) or (B) in prepayment of any
Utilisation in accordance with Clause 9.3;
(C) disposals of plant and equipment or other like assets,
not required for the efficient operation of its business;
(D) transfer of cash unless otherwise prohibited by the terms
of the Finance Documents;
(E) the disposal of Cash Equivalent Investments for cash or
in exchange for other Cash Equivalent Investments;
(F) the disposal or securitisation of electricity receivables
of any Licenceholder or gas receivables of members of the
TEG Group;
(G) disposals by one member of the PA Group to another member
of the PA Group save that any such disposal by an Obligor
may only be made to a member of the PA Group which is not
an Obligor if such disposal is (i) expressly permitted
hereby (including any loan pursuant to Clause 21.5 and
any Distributions pursuant to Clause 21.6) or (ii) not
otherwise prohibited hereby and is made on arm's-length
terms;
(H) disposals of assets not otherwise permitted pursuant to
paragraphs (A)-(G) above or (I)-(J) below, the
consideration for which (including any amount of
intercompany debt repaid to any member of the continuing
Group), when aggregated with the consideration for all
other such disposals in the same annual Accounting Period
do not exceed L50,000,000 (or its equivalent in other
currencies);
(I) the Asset Split and all such other matters as are
contemplated by the Structure Memorandum; and
(J) sale and leaseback transactions (subject to Clause 9.3).
All disposals (save those permitted pursuant to paragraph (D), (G),
(I) or (J)) shall be made on arm's-length terms or on terms more
favourable to the PA Group.
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(d) PARI PASSU RANKING Each Obligor undertakes that its obligations under
this Agreement rank and will at all times rank at least PARI PASSU in
right and priority of payment and in point of security (save by reason
of and to the extent of the security afforded thereto by the Security
Documents) with all its other present and future unsecured and
unsubordinated obligations, other than obligations applicable
generally to companies incorporated in its jurisdiction of
incorporation which have priority by operation of law (including,
without prejudice to the generality of the foregoing, in respect of
employees' remuneration, Taxes and like obligations).
21.4 LIABILITIES
(a) THIRD PARTY GUARANTEES No Obligor will incur or permit to be
outstanding from it, save as permitted by a Waiver Letter, any
Borrowing falling within the provisions of paragraph (e) of the
definition of that term in Clause 1.1, with respect to any person
which is not an Obligor other than any such Borrowing arising under:
(i) the Finance Documents, or
(ii) the endorsement of negotiable instruments for the purpose and
in the ordinary course of carrying on the relevant entity's
trade (if and to the extent that the same would fall within
the definition of Borrowings in Clause 1.1), or
(iii) any guarantee, indemnity, letter of credit or similar
assurance against financial loss given under or in connection
with any pooling and settlement or onshore transportation
arrangements or agreements of the electricity or gas
generation, transportation, distribution and/or supply
industry (including (but without limitation) the Pooling and
Settlement Agreement (in the case of electricity) and the
Network Code (in the case of gas)) or telecommunications or
water industry or energy or energy-related business or in
connection with any transactions or arrangements entered into
in a form usual in any such industry or business (if and to
the extent that the same would fall within the definition of
Borrowings in Clause 1.1), or
(iv) the Gas Framework Agreement, or
(v) arrangements created to facilitate the operation of accounts
of members of the PA Group and other accounts of members of
the PA Group with the same bank or financial institution on a
net balance basis with (or without) credit balances and debit
balances on the various accounts being netted off for interest
purposes or to comply with any net limit, or for cash
management purposes, or as part of a back-to-back or similar
arrangement, or
(vi) (to the extent such guarantees are in respect of Borrowings
referred to in paragraph 21 under the heading Citizens Power
LLC in, or in Note 1 to, the Borrowings List) guarantees by
TEG in respect of obligations of Citizens,
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Provided that such guarantees by TEG shall, unless otherwise
agreed by the Majority Banks, be released within 270 days
after the first Utilisation Date, or
(vii) guarantees by the member of the TEG Group existing at the
Unconditional Date in respect of Borrowings identified in the
Borrowings List which remain outstanding without breaching
Clause 21.9, other than any such guarantees and Borrowings
referred to in (vi) above, or
(viii) guarantees of obligations of the nature and type described in
Clause 21.3(a)(xix), or
(ix) guarantees not otherwise permitted pursuant to paragraphs (i)
to (viii) (inclusive) above in aggregate principal amount not
exceeding at any time L50,000,000 (or its equivalent in other
currencies).
(b) SUBSIDIARY BORROWINGS Each Obligor shall procure that, from the date
falling six months after the first Utilisation Date, any Subsidiary
which is not a Guarantor, save for EE and any Subsidiary of EE from
time to time, shall not incur any Borrowings save for:
(i) Borrowings incurred by any Subsidiary of PA which becomes a
Project Finance Subsidiary within 6 months of the date upon
which such Borrowings were incurred;
(ii) obligations specified in the Borrowings List or incurred and
applied to refinance any such obligations;
(iii) Borrowings referred to in paragraph (e) of the definition
thereof;
(iv) Borrowings owed by one member of the PA Group to another
member of the PA Group;
(v) Borrowings owed by any person (other than a person which is a
member of the TEG Group at the Unconditional Date) when it
becomes a member of the Services Group after the Unconditional
Date, but only if:
(A) such Borrowings were not created in contemplation of
that person becoming a member of the Services Group;
and
(B) the maximum principal amount of such Borrowings is not
subsequently increased unless otherwise permitted
pursuant to any other provision of this Clause 21.4;
(vi) Borrowings owed or incurred under overdraft arrangements
available to the Services Group or any member thereof
(provided they are available to the Obligor) as at the
Unconditional Date but only if the maximum available principal
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amount of such Borrowings is not subsequently increased unless
otherwise permitted pursuant to any other provision of this
Clause 21.4;
(vii) Borrowings owed or incurred under facilities available to
Peabody Resources Limited or any of its Subsidiaries as at the
Unconditional Date but only if the maximum available principal
amount of such Borrowings is not subsequently increased unless
otherwise permitted pursuant to any other provision of this
Clause 21.4;
(viii) Borrowings not otherwise permitted pursuant to paragraphs (i)
to (vii) (inclusive) above in aggregate principal amount not
exceeding at any time an amount equal to L50,000,000 (or its
equivalent in other currencies) less the amount of Borrowings
from time to time taking the benefit of Clause 21.4(a)(viii),
21.5 LOANS OUT No Obligor will, and each Obligor will procure that no member of
the Services Group will, be the creditor in respect of any Borrowings, save for:
(a) any Borrowing approved pursuant to a Waiver Letter;
(b) any Borrowing:
(i) under paragraph (b) of the definition of "Borrowing" in Clause
1.1 where trade credit is extended by any member of the Group
on normal commercial terms and in the ordinary course of its
business; and
(ii) under paragraph (c) of the definition of "Borrowing" in Clause
1.1 where moneys are received in the ordinary course of
business;
(c) loans made by one member of the PA Group to another member of the PA
Group the proceeds of which are used in the ordinary course of
business of the borrower carried on in compliance with the terms of
this Agreement;
(d) loans made to trade customers of the PA Group in the ordinary course
of business the purpose of which is to facilitate trade between such
customers and members of the PA Group;
(e) Borrowing not otherwise permitted in an aggregate amount for the PA
Group as a whole at any time outstanding not exceeding L20,000,000 (or
its equivalent in other currencies);
(f) finance leases entered into in the ordinary course of business (which
for the avoidance of doubt, shall include the lease of the Kings ▇▇▇▇
Power Station, on the terms in all material respects, as at the date
hereof);
(g) any Borrowing between any of Services, Finance, EnergyCo or PA not
otherwise prohibited hereby;
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(h) any Borrowing resulting from Cash or Cash Equivalent Investments;
(i) loans from TEG (in an amount not exceeding L20,000,000) to Regent
Capital Trust Corporation Limited in respect of The Energy Group
Employee Benefit Trust; or
(j) loans made to a Project Finance Subsidiary or any person in which a
member of the PA Group has an interest.
21.6 DISTRIBUTIONS, SUBORDINATED DEBT AND SHARE CAPITAL:
(a) PA will not and will procure that none of its Subsidiaries will, save
as permitted by a Waiver Letter:
(i) pay any Interest in respect of any Subordinated Debt or repay
or prepay any amount of principal (or capitalised interest) of
or in respect of any Subordinated Debt or purchase or enter
into any sub-participation arrangements in respect of any
amount of the Subordinated Debt (collectively "SUBORDINATED
PAYMENTS"); or
(ii) declare, make or pay any dividend (or interest on any unpaid
dividend), charge, fee or other distribution (whether in cash
or in kind) (the "DIVIDENDS") on or in respect of the share
capital of PA (or any class of its share capital) or
distribute any dividend or share premium reserve of PA; or
(iii) pay (other than to a member of the PA Group) any amount (the
"EXCESS AMOUNT") pursuant to the Tax Sharing Agreement in
respect of any period where such amount is in excess of the
amount by which the aggregate of the payments by the PA Group
to the United Kingdom tax authorities in respect of that
period is or will be reduced as a result of the UK tax losses
made or to be made available to the PA Group in consequence of
such payment; or
(iv) make any loans to EnergyCo or any Affiliate thereof which is
not a member of the PA Group; or
(v) redeem, repurchase, defease, retire, return or repay any of
its equity share capital (as defined in Section 744 of the
Companies Act 1985) or resolve to do so other than where such
redemption, repurchase, defeasement, retirement or repayment
occurs between members of the PA Group;
Provided that:
(A) PA, EE or any Hybrid Preferred Securities Subsidiary may pay
in cash Subordinated Payments; and
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(B) PA may declare and pay in cash Dividends; and
(C) PA may make loans to Services or Finance (the "SERVICES
LOANS"); and
(D) PA may pay any Excess Amount; and
(E) PA may redeem, repurchase, defease, retire, return or repay
any of its share capital ("REDEMPTION PAYMENTS"),
(such Subordinated Payments, Dividends, Services Loans, Redemption
Payments and Excess Amounts together being the "DISTRIBUTIONS") in
accordance with Clause 21.6(b) or (e) of this Agreement.
(b) In addition to Distributions permitted or not prohibited by Clause
21.6(e)(ii)(bb) and (cc) and (e)(iv), PA shall be entitled, subject to
the proviso below, to pay a Distribution in respect of any quarterly
Accounting Period at any time after the tenth Business Day after
delivery to the Facility Agent pursuant to Clause 21.2(a)(i) or (ii)
of the consolidated Accounts of PA for the quarterly Accounting Period
(accompanied by a certificate as referred to in Clause 21.2(a)(iv)) in
an amount equal to:
(i) if PA has on the proposed payment date senior long term debt
ratings of BBB+ or better (from Standard & Poor's Rating
Group) and Baal or better (from ▇▇▇▇▇'▇ Investor Services
Group) (both ratings being required contemporaneously), the
greater of (i) L10,000,000, and (ii) one hundred per cent
(100%) of Adjusted Net Income for that quarterly Accounting
Period; or
(ii) if PA has on the proposed payment date senior long term debt
ratings of BBB- or better (from Standard & Poor's Rating
Group) and Baa3 or better (from ▇▇▇▇▇'▇ Investor Services
Group) (both ratings being required contemporaneously), the
greater of (i) L10,000,000, and (ii) fifty per cent (50%) of
Adjusted Net Income for that quarterly Accounting Period; or
(iii) if it has neither of such debt ratings on the proposed payment
date the greater of (i) L10,000,000, and (ii) twenty-five per
cent (25%) of Adjusted Net Income for that quarterly
Accounting Period;
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Provided that notwithstanding the foregoing:
(I) if on the last Accounting Date (for which Accounts have
been delivered to the Facility Agent pursuant to Clause
21.2(a)(ii)) prior to the proposed date for payment of
the Distribution, Consolidated Net Total Borrowings
exceeded 68% of the sum of (i) Adjusted Capital and
Reserves and (ii) Consolidated Net Total Borrowings
(both as calculated by reference to the quarterly
Accounts delivered pursuant to Clause 21.2(a)(ii) in
respect of the quarterly Accounting Period ended on
that Accounting Date and the certificate relating
thereto delivered pursuant to Clause 21.2(a)(iv)), the
amount payable by way of Distribution as aforesaid
shall be limited so that the aggregate Distributions
paid by PA during the quarterly Accounting Period in
which such Distribution is paid and the three
immediately preceding quarterly Accounting Periods
shall not exceed the Fixed Sterling Equivalent of
$100,000,000 unless PA delivers to the Facility Agent a
certificate substantially in the form of the Twelfth
Schedule confirming INTER ALIA that such Distributions
are required to meet contractual obligations of
EnergyCo; and
(II) no Distribution may be paid if any Event of Default or
any Default falling within Clause 24.1(a) has occurred
and is continuing at the time for payment or would
occur or be continuing immediately after the payment
(whether or not caused by such payment) or as a result
of the payment.
(c) CERTIFICATION OF PAYMENT AMOUNTS Where any payment of Distributions
is proposed to be made in accordance with paragraph (b)(ii) or (iii)
of this Clause but only where such proposed Distribution is an amount
greater than L10,000,000, then, PA shall, prior to making such
payment, provide to the Facility Agent not less than 5 Business Days
before the proposed date for payment a certificate signed by the Chief
Financial Officer in a form reasonably satisfactory to the Facility
Agent showing (i) the date and amount of such proposed payment and
(ii) such calculations in reasonable detail as are necessary to show
that such payment is justified in terms of Clause 21.6(b).
(d) TIMING OF CERTAIN DISTRIBUTIONS Without prejudice to the
restrictions set out in the foregoing provisions of this Clause 21.6
relating to Distributions, Services shall ensure that payments (other
than to any member of the PA Group) pursuant to the Tax Sharing
Agreement are not made earlier than is provided for in the Tax Sharing
Agreement.
(e) SHARE CAPITAL AND DEBT Services will not, and no Obligor will, and
each Obligor will procure that no other member of the Services Group
will, save as permitted by a Waiver Letter and save for the conversion
and payments which are permitted in (and subject to the proviso of)
Clause 7.2 of the Intercreditor Agreement:
(i) save as contemplated by the Structure Memorandum, issue any
new share capital
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or grant any option to any person to subscribe for any shares
in its capital:
(aa) save that Finance may issue to Services and/or PA may
issue to Finance share capital of a type carrying no
mandatory redemption rights and no fixed dividend
(provided always that such shares are charged
immediately upon their issue to the Security Agent
pursuant to the terms of the Debenture and, if required
by the Security Agent, registered in its name in the
books of Finance or PA (as the case may be)) and save
also that Services may issue shares to EnergyCo or
(provided that the Net Proceeds of the issue are used
to prepay outstandings under the Facilities in
accordance with the terms of Clause 9.3) effect an IPO
of shares representing less than 25% of the issued
share capital of Services; and
(bb) save that any member of the PA Group may issue share
capital to another member of the PA Group (provided
that if the Security Agent or the Banks already have
security over the shares of the issuer of any such new
shares then Services will procure that the member of
the Group to whom such new shares are issued promptly
provides security over such shares to the Security
Agent and the Banks to the reasonable satisfaction of
the Security Agent); or
(ii) repay or prepay any amount of principal, capitalised interest
or interest pursuant to the EnergyCo/Services Loan Agreement
and/or Services/PA Loan Agreement and/or the PA Note and/or in
respect of any Subordinated Debt other than (aa) as permitted
pursuant to this Clause 21.6 and the terms of the
Intercreditor Agreement, (bb) under the PA Note or (cc) with
respect to the PA/Peabody Note, interest may be paid to the
extent that Peabody Global or, as the case may be, Peabody
Investments has declared or will promptly declare a dividend
payment at least equal to the proceeds of such interest
payment; or
(iii) redeem, repurchase, defease, retire, return or repay any
shares where a Default is continuing or will occur as a result
thereof; or
(iv) make any payment in respect of Hybrid Preferred Securities or
any Subordinated Debt incurred in connection therewith where a
Default is continuing or will occur as a result thereof.
21.7 ENVIRONMENTAL MATTERS Each Obligor will and will procure that each member
of the Group will:
(a) obtain all requisite Environmental Licences and comply in all material
respects with (i) the terms and conditions of all Environmental
Licences applicable to it and (ii) all other applicable Environmental
Law in each case where failure to do so would have a Material Adverse
Effect;
(b) promptly upon receipt of the same, notify the Facility Agent and the
Security Agent of
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any claim, notice or other communication served on it in respect of
any alleged breach of or corrective or remedial obligation or
liability under any Environmental Law which it is aware would, if
substantiated, have a Material Adverse Effect.
21.8 INSURANCE Each Obligor will, and will procure that each member of the
Services Group will, insure and keep insured all its property and assets
(including those taken in lease) of an insurable nature and which are
customarily insured (either generally or by companies carrying on a similar
business) against loss or damage by fire and other risks normally insured
against by persons carrying on the same class of business as that carried on by
it in a similar location and in a sum or sums and with deductibles and other
terms consistent with prudent market practice for companies carrying on a
similar business in a similar location. Each Obligor will, and will procure
that each member of the Services Group will, with reasonable promptness after
becoming aware of the relevant requirement effect and maintain all insurances
required by any applicable law or by the Licence.
21.9 REFINANCING DEBT The members of the PA Group indicated in the Borrowings
List as being the debtors in respect of Refinancing Debt which is to be
refinanced (or, where more than one member is indicated in respect of any
particular Refinancing Debt, whichever of those members is selected by PA to be
the borrower of any funds borrowed to refinance that Refinancing Debt) shall
accede as Borrowers hereunder in order to enable the relevant member to borrow
hereunder to refinance the relevant Refinancing Debt.
Services shall procure that:
(a) within three months of the Unconditional Date the Refinancing Debt
(other than that which is identified in the Borrowings List as being
permitted to remain outstanding on its existing terms or terms
negotiated in compliance with the terms hereof) shall be repaid or
prepaid in full save to the extent that to do so would breach the
prohibition set out in Section 151 of the Companies ▇▇▇ ▇▇▇▇; and
(b) as soon as the procedures set out in Section 155 et seq. of the
Companies ▇▇▇ ▇▇▇▇ required to be implemented to permit the repayment
of Refinancing Debt not required to be repaid or prepaid in accordance
with paragraph (a) above by reason of the exception relating to
Section 151 of the Companies ▇▇▇ ▇▇▇▇ have been completed all such
Refinancing Debt shall be repaid or prepaid (other than that which is
identified in the Borrowings List as being permitted to remain
outstanding as aforesaid).
Services shall ensure that any renegotiated terms applicable to any Refinancing
Debt (other than (A) that denominated according to the Borrowings List in the
currency of the Czech Republic or (B) that incurred pursuant to the Rent
Factoring Agreement) which is identified in the Borrowings List as being
permitted to remain outstanding shall not be more favourable in terms of all-in
return in any material respect to the creditors therefor than the terms of this
Agreement applicable to Utilisations by PA or on terms satisfactory to the
Majority Banks (acting reasonably).
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21.10 GENERAL UNDERTAKINGS
(a) CHANGE OF BUSINESS No Obligor will, and each Obligor will procure
that no other member of the Services Group will, save as permitted by
a Waiver Letter, carry on any business other than those which are
usual for energy companies (including, without limitation, electricity
distribution, supply, generation and trading, and business activities
related to the gas, telecommunications and water industries or the
energy or energy related business) or reasonably incidental or
ancillary to any such business provided that any member of the
Services Group may continue to carry on any business which it carries
on as at the date hereof.
(b) MERGERS No member of the Services Group shall enter into any merger
or consolidation with any other person, save that (i) members of the
PA Group may do so (whether by winding-up or otherwise) with other
members of the PA Group provided that the security provided for in
the Security Documents (taken as a whole) will not be materially
prejudiced thereby, and (ii) Finance may do so (whether by winding-up
or otherwise) with Services.
(c) HOLDING COMPANY Save as permitted by a Waiver Letter, none of
Services, Finance or PA shall carry on any business (other than the
provision of administrative services to members of the Services Group
and the holding of shares and making of loans as provided for below)
or acquire any assets other than Cash, Cash Equivalent Investments or
shares or loans which (i) in the case of Services, are shares in
Finance or a share in PA held as nominee for Finance or loans to
Finance or PA or (to the extent permitted by Clauses 21.5 and 21.6)
EnergyCo, or (ii) in the case of Finance, are shares in PA or loans to
PA or Services, or (iii) and subject to Clause 2.6 in the case of PA,
are Shares acquired in TEG by PA or loans to any member of the PA
Group or (subject to Clause 21.6) to Services or Finance, and in the
case of (i), (ii) and (iii) are or become on acquisition mortgaged,
pledged or otherwise charged to the Security Agent pursuant to the
Security Documents, provided that the foregoing restriction shall
cease to apply to PA immediately upon any merger of it and TEG
(whether by liquidation of TEG or otherwise).
(d) ARM'S-LENGTH TERMS No Obligor will, and each Obligor will procure
that no other member of the Services Group will, enter into any
material transaction with any person otherwise than on arm's length
terms, save as permitted by a Waiver Letter, and save for (i) loans
made by one member of the Services Group to a member of the PA Group
or by PA to Services or Finance, (ii) disposals by one member of the
Services Group to a member of the PA Group permitted by Clause
21.3(c), (iii) transactions entered into on terms more favourable to a
member of the PA Group than would have been the case had the
transaction been entered into on arm's length terms, (iv) transactions
expressly permitted by this Agreement, and (v) other transactions
between members of the PA Group not otherwise prohibited by the terms
of this Agreement.
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(e) AMENDMENTS TO DOCUMENTS No Obligor will, and each Obligor will
procure that no other member of the Services Group, save as permitted
by a Waiver Letter, will or will agree to amend, supplement, supersede
or waive any term of the Transaction Documents in any manner which
would materially and adversely affect the interests of the Banks under
the Finance Documents taken as a whole without the prior written
consent of the Majority Banks.
(f) CONSTITUTIONAL DOCUMENTS No Obligor will, and each Obligor will
procure that no other member of the Services Group will, save as
permitted by a Waiver Letter or as required by law, amend or seek or
agree to amend or replace the memorandum or articles of association or
other constitutional documents or by-laws of any member of the
Services Group in any way which would materially and adversely affect
the interests of the Banks under the Finance Documents (taken as a
whole), provided that if any such undertaking would not be enforceable
(having regard to the rule in ▇▇▇▇▇▇▇ ▇. NORTHERN BANK DEVELOPMENT
CORPORATION LIMITED & ORS) against any Obligor it shall not be given
by that Obligor.
(g) COMPLIANCE WITH LAWS Each Obligor will, and will procure that each
other member of the Services Group will, comply in all material
respects with all applicable laws, rules, regulations and orders of
any governmental authority, whether domestic or foreign, having
jurisdiction over it or any of its assets, failure to comply with
which would have a Material Adverse Effect.
(h) CONSENTS Each Obligor will, and will procure that each other member
of the Services Group will, obtain, promptly renew from time to time
and maintain in full force and effect, and if so requested promptly
furnish certified copies to the Facility Agent of all such material
authorisations, approvals, consents, licences and exemptions as may be
required under any applicable law or regulation or under any Licence
or any Licence Undertaking:
(i) to enable each Obligor to perform its respective material
obligations under the Finance Documents to which it is a party or
required for the validity or enforceability of such Finance
Documents or of any security provided for thereby; and/or
(ii) to carry on its business as it is being conducted from time to
time where failure to obtain, renew or maintain any such
authorisation, approval, consent, licence or exemption or
non-compliance with the terms of the same would have a Material
Adverse Effect.
(i) PENSION SCHEMES Services shall procure that all pension schemes
maintained by or for the benefit of any member of the Services Group
and/or any of its employees are maintained and operated in all
material respects in accordance with all applicable laws from time to
time and will ensure that all such pension schemes are funded
substantially in accordance with the governing provisions of such
schemes with any shortfall in funding advised by
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actuaries of recognised standing, being rectified in accordance with
such governing provisions.
(j) SYNDICATION Services shall ensure that such members of the Services
Group as the Facility Agent may reasonably require shall provide
reasonable assistance to the Facility Agent and the Arrangers in the
preparation of the Information Memorandum for syndication of the
Facilities and comply with all reasonable requests for information
from potential syndicate members made through the Facility Agent or an
Arranger in each case until the earlier of conclusion of the general
syndication (as notified to Services by the Facility Agent) or the
date falling six months after the Unconditional Date.
(k) LICENCE UNDERTAKINGS Services shall procure that on and from the
Unconditional Date the relevant Licenceholder will:
(i) take all appropriate steps efficiently to perform and
discharge the duties and functions of a generator of
electricity or, as the case may be, public electricity
supplier in accordance with the provisions of the Act and, in
particular, to comply with:
(A) the terms and conditions of the Licence;
(B) the provisions of any final order or confirmed
provisional order made under the Act; and
(C) all undertakings given by it to the Director-General
and/or the Secretary of State in respect of the matters
referred to in Section 25(5) of the Act,
where failure to take all appropriate steps would have or
would be reasonably likely to have a Material Adverse Effect;
(ii) not consent to any material amendment to the terms and
conditions of the Licence or to the giving of or amendment to
any Licence Undertaking if that amendment or Licence
Undertaking would have (whether immediately or in the course
of time prior to the Final Repayment Date) a Material Adverse
Effect and, if the amendment is required pursuant to a law or
regulation applying to the United Kingdom electricity
distribution, supply or generation industry as a whole, within
30 days Services and the Facility Agent (on behalf of the
Banks), have not agreed new terms for this Agreement
acceptable to the Majority Banks;
(iii) not consent to any revocation of any Licence except where a
replacement licence(s) is/are to be granted to a member or
members of the PA Group in its place (if such replacement
licence(s) is/are then required by statute or by regulation by
a company to carry on the business of a Licenceholder as
carried on as at the date hereof);
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(iv) promptly and in any event not less than 10 Business Days prior
to it so doing, where such is practicable having regard to the
period of notice given to such Licenceholder, inform the
Facility Agent of any Licence Undertaking to be given by it to
the Director General and/or the Secretary of State and of any
material amendment to be made by it to the terms and
conditions of the Licence;
(v) promptly supply to the Facility Agent:
(A) certified copies of all notices or orders served on it
by the Director General or the Secretary of State in
exercise of the powers conferred on him by the Act;
(B) details of any references relating to it to the
Monopolies and Mergers Commission after the signing of
this Agreement ; and
(C) details of the exercise or purported exercise by the
Secretary of State or the Director General of the
powers conferred on them by the Fair Trading ▇▇▇ ▇▇▇▇,
the Competition ▇▇▇ ▇▇▇▇ and/or Section 12 of the Act
relating to it or any business carried on by it and
regulated thereby;
(vi) ensure that at all times the Licenceholder has sufficient
working capital to finance the performance and discharge of
its duties as a generator of electricity or, as the case may
be, public electricity supplier, in accordance with the
provisions of the Act and the terms and conditions of its
Licence; and
(vii) not permit any person other than a member of the PA Group to
perform or manage on its behalf any of its functions as a
public electricity supplier as set out in the relevant Licence
and the Act.
(l) OFFER DOCUMENT Upon reasonable notice being given by the Facility
Agent and at its reasonable request, Services shall procure that PA
shall explain or give details of any item in any draft of the Offer
Document and discuss with the Arrangers the contents thereof (such
explanation and/or details being to the best of its knowledge and
belief, in respect of any item relating to TEG and/or the TEG Group).
(m) OFFER TERMINATION DATE Promptly upon the occurrence of the Offer
Termination Date, PA shall give notice to the Facility Agent (who
shall notify the Banks of the same) that the same has occurred.
(n) SECTION 428 Promptly upon acquisition by it of 90% in value of the
share capital in TEG to which the Offer relates, PA shall implement
the procedures set out in Section 429 of the Companies ▇▇▇ ▇▇▇▇ and
use its reasonable endeavours to acquire 100% of the issued share
capital of TEG within 6 weeks of its implementation of such procedure.
(o) HEDGING DOCUMENTS PA will effect the interest rate hedging
transactions described in the
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letter referred to in Clause 4.1(d) in amounts, and by the times
contemplated in such letter.
(p) STRUCTURE MEMORANDUM As soon as permitted by relevant law after the
Unconditional Date, Services shall procure that:
(i) the American Depositary Shares in the capital of TEG shall be
delisted from the New York Stock Exchange; and
(ii) those steps contemplated by the Structure Memorandum, not
completed as at the date hereof, shall be completed substantially
in accordance with and as set out in the Structure Memorandum.
(q) ASSET SPLIT Services will procure that within 270 days of the first
Utilisation Date the Asset Split shall have occurred.
(r) 2000 COMPLIANCE PA shall ensure that all computers and other systems
used by the members of the PA Group, whose failure (individually or
collectively) to be year 2000 compliant would have a material adverse
effect on the Borrowers' and Guarantors' ability to perform their
respective payment obligations under this Agreement will be year 2000
compliant by 30 September 1999.
(s) GENERATION SHARES Services will ensure that for so long as Eastern
Generation Limited remains a member of the Services Group (other than
as a direct Subsidiary of EE) it shall be a direct Subsidiary of
Eastern Group plc or a chargor under the Debenture.
22. THE OFFER
(a) Each of Services and PA undertakes that:
(i) without the prior agreement of the Majority Offer Banks (such
agreement being conclusively evidenced by a written notice
from the Facility Agent to Services and, in the case of
sub-paragraphs (A) and (C), not to be unreasonably withheld or
delayed) neither PA nor, in respect of sub-paragraph (C) only,
Services will:
(A) amend or vary in any material respect any material term
or condition of the Offer, other than by virtue of any
extension of the time for acceptance of the Offer;
(B) take or permit to be taken any step as a result of
which the offer price stated in the Offer is, or may be
required to be, increased beyond the level agreed
between PA and the Banks from time to time;
(C) issue or allow to be issued on its behalf any press
release or other publicity, the text of which has not
been previously agreed with the
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Arrangers, which makes reference to the Facilities or
to some or all of the Finance Parties unless the
publicity is required by law, a court, the Code or any
stock exchange (in which case Services or PA (as the
case may be) shall notify the Facility Agent and the
Banks as soon as practicable upon becoming aware that
the publicity is required);
(ii) in all material respects relevant in the context of the Offer,
it will comply with the Code (subject to any applicable
waivers by the Panel), the Financial Services ▇▇▇ ▇▇▇▇, the
Companies ▇▇▇ ▇▇▇▇ and all other applicable statutes, laws and
regulations;
(iii) it will keep the Facility Agent informed as to the status and
progress of the Offer and, in particular, will from time to
time and promptly on request give to the Facility Agent
reasonable details as to the current level of acceptances of
the Offer (including a copy of every certificate delivered by
the receiving agent to PA and/or its advisers pursuant to the
Code) and such other matters relevant to the Offer as the
Facility Agent may reasonably request.
(b) PA undertakes that, without the prior agreement of the Majority Offer
Banks, PA will not decide, declare or accept that valid acceptances in
respect of less than 90 per cent. in nominal value of TEG securities
to which the Offer relates shall be required for fulfilment of the
condition set out in paragraph (a) of Appendix 1 to the Press Release,
Provided that the Majority Offer Banks shall not unreasonably withhold
or delay giving its agreement if it is shown to their reasonable
satisfaction that PA will achieve acceptances sufficient to enable it
to give notice under section 429 of the Companies ▇▇▇ ▇▇▇▇ in relation
to the shares to which the Offer relates.
(c) PA shall keep the Facility Agent informed and consult with it as to:
(i) the terms of any undertaking or assurance proposed to be given
by it, any of its Affiliates or any member of the TEG Group to
the Director General of Electricity Supply, the Director
General of Gas Supply or the Secretary of State for Trade and
Industry in connection with the Offer;
(ii) the terms of any modification to any of the Licences proposed
in connection with the Offer;
(iii) any terms proposed in connection with any authorisation or
determination necessary or appropriate in connection with the
Offer, including those from the Secretary of State for Trade
and Industry and the Foreign Investment Review Board of
Australia.
If any of such proposed undertakings, assurances, modifications or
terms are, where applicable, of a type materially more onerous than
those already agreed in principle between PacifiCorp and the Office of
the Electricity Regulator or, as the case may be,
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any other relevant regulatory authority, and the Majority Offer Banks
(acting reasonably) state that in their opinion such proposed
undertaking(s), assurance(s), modification(s) and/or term(s), or
compliance therewith, would materially and adversely affect the
ability of the PA Group to comply with its material obligations under
the Finance Documents, PA shall promptly request the Panel to confirm
(and shall use its reasonable endeavours to ensure that the Panel does
confirm) that the Panel will not object to the lapsing of the Offer as
a result of the non-satisfaction of whichever of conditions (b) to (f)
in Appendix 1 to the Press Release is relevant. If the Panel gives a
confirmation substantially in those terms, PA shall at the earliest
opportunity declare the Offer lapsed by reason of the non-fulfilment
of such condition(s).
(d) If PA becomes aware (whether through notice from the Agent or any Bank
or otherwise) of a circumstance or event which is or could reasonably
be construed to be covered by any condition of the Offer (other than
those contained in paragraphs (a) to (j) of Appendix 1 to the Press
Release) which, if not waived, would entitle PA (with the Panel's
consent, if needed) to lapse the Offer, PA shall promptly notify the
Facility Agent.
(e) If a circumstance or event occurs of the nature referred to in (d)
above and the Majority Offer Banks, acting reasonably, state that in
their opinion such circumstance or event would materially and
adversely affect the ability of the PA Group to comply with its
material obligations under the Finance Documents, PA shall promptly
request the Panel to confirm (and shall use its reasonable endeavours
to ensure that the Panel does confirm) that the Panel will not object
to the lapsing of the Offer as a result of the non-satisfaction of
that condition. If the Panel gives a confirmation substantially in
those terms, PA shall not waive, that condition or treat it as
fulfilled and shall declare the Offer lapsed at the earliest
opportunity.
23. FINANCIAL RATIOS
23.1 FINANCIAL UNDERTAKINGS Services and PA will procure that:
(a) CONSOLIDATED NET TOTAL BORROWINGS TO THE SUM OF ADJUSTED CAPITAL AND
RESERVES AND CONSOLIDATED NET TOTAL BORROWINGS: Consolidated Net Total
Borrowings at all times during the periods set out below shall not be
more than Y per cent. of the sum of Adjusted Capital and Reserves and
Consolidated Net Total Borrowings on such Accounting Date, where Y has
the value indicated for such Accounting Date in such table:
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PERIOD
(TO 31 DECEMBER) Y%
1998 76
1999 74
2000 72
2001 70
2002 68
(b) CONSOLIDATED EBITDA TO CONSOLIDATED TOTAL NET INTEREST PAYABLE
Consolidated EBITDA for any period comprising an annual Accounting
Period of PA or four (taking into account the provisions of Clause
23.2) consecutive quarterly Accounting Periods of PA (taken together
as one period) ending on any Accounting Date falling closest to the
date specified in the table below, shall not be less than Y times
Consolidated Total Net Interest Payable for such period, where Y has
the value indicated for such Accounting Date in such table:
ACCOUNTING DATE Y
(BEFORE ANY ADJUSTMENT)
(TO 31 DECEMBER)
1998 1.9x
1999 2.1x
2000 2.25x
2001 2.5x
2002 2.75x
23.2 INITIAL CONSOLIDATED EBITDA TO CONSOLIDATED TOTAL NET INTEREST PAYABLE
TESTS The first test of the covenant set out in Clause 23.1(b) shall be made in
respect of a period ending on the expiry of the quarterly Accounting Period
commencing on, or (if none) on the expiry of the first quarterly Accounting
Period commencing after, the Unconditional Date. The first three tests of such
covenant shall be made in respect of periods which shall include such number of
pro forma Accounting Periods commencing before the Unconditional Date as shall
be required in order that each test is made for a period comprising four
quarterly Accounting Periods and on the basis of pro forma Accounts for those
pro forma Accounting Periods delivered to the Facility Agent pursuant to Clause
21.2(a)(vi) and Accounts delivered to the Facility Agent pursuant to Clause
21.2(a)(ii).
24. DEFAULT
24.1 EVENTS OF DEFAULT Each of the events set out below is an Event of Default
(whether or not caused by any reason outside the control of any or all of the
Obligors or of any other person):
(a) NON-PAYMENT Any Obligor does not pay on the due date any amount
payable by it to any Finance Party under any Finance Document at the
place, in the currency and in the funds
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expressed to be payable, provided that this sub-clause shall not apply
(i) to unpaid amounts which are paid in full within three Business
Days of the due date where the failure to pay such amount on its due
date is due solely to technical or administrative error, failure or
delay in the transmission of funds; or (ii) to unpaid amounts (other
than of principal of or interest or fee on any Utilisation) which are
paid in full within five Business Days of the due receipt by the
relevant Obligor of written notice from the Facility Agent requiring
the failure to be remedied; or
(b) BREACH OF OBLIGATION
(i) Any Obligor fails to comply with any provision of Clause 23;
or
(ii) Any Obligor fails to comply with any other provision of this
Agreement (irrespective of whether or not such provision is
valid and enforceable against such Obligor) and/or any other
provision of any other Finance Document in respect of which
any Finance Party has the benefit and, if such failure is
capable of remedy within such period, such Obligor shall have
failed to remedy such failure within 21 days after the receipt
by the relevant Obligor of written notice from the Facility
Agent to such Obligor requiring the failure to be remedied; or
(iii) Any Obligor shall do any of the things prohibited in Clauses
21.6(a) or 21.6(e), or any of the things prohibited in Clause
21.10(g) shall be done to or by any Obligor, whether or not
(having regarding to the rule in ▇▇▇▇▇▇▇ ▇. NORTHERN BANK
DEVELOPMENT CORPORATION LIMITED & ORS.) such undertaking is
enforceable against that Obligor, and, in each case, the
thing, if remediable, shall not have been remedied within 21
days after the receipt by the relevant Obligors of written
notice from the Facility Agent to such Obligor requiring the
thing to be remedied; or
(c) MISREPRESENTATION/BREACH OF WARRANTY Any representation, warranty or
statement made or repeated by or on behalf of any Obligor to any
Finance Party, in any Finance Document or in any certificate or
statement delivered to any Finance Party by or on behalf of any
Obligor or other member of the Services Group under or in connection
with any Finance Document, is incorrect or misleading in any respect
which is material when made or deemed to be made or repeated by
reference to the facts and circumstances then subsisting and, if the
circumstances causing such misrepresentation are capable of remedy
within such period, such Obligor shall have failed to remedy such
circumstances within 21 days after the receipt by the relevant
Obligors of written notice from the Facility Agent to such Obligor
requiring the circumstances causing such misrepresentation to be
remedied; or
(d) INVALIDITY Any of the Finance Documents (other than any Documentary
Credit or Substitution Certificate) shall cease to be in full force
and effect in any material respect or shall cease to (or be alleged by
any Obligor not to) constitute the legal, valid and binding obligation
of any Obligor party to it or, in the case of any Security Document,
fail to (or
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be alleged by any Obligor not to) provide effective security in favour
of the Security Agent and the Banks over the assets over which
security is intended to be given by that Security Document, in each
case in a manner and to an extent materially adverse to the interests
of the Banks under the Finance Documents (taken as a whole) or it
shall be unlawful for any Obligor to perform any of its material
obligations under any of the Finance Documents, provided that where
the relevant Finance Documents are re-executed by the relevant
Obligors in the same form in all material respects and none of the
circumstances described in this paragraph apply in respect of those
Finance Documents as so re-executed by the relevant Obligors and the
interests of the Banks under the Finance Documents are not continuing
to be materially and adversely affected as a result of any of the
foregoing circumstances having occurred, the relevant Event of Default
under this paragraph shall be treated as having been cured; or
(e) CROSS-DEFAULT
(i) Any Borrowings (other than Project Finance Borrowings and any
Borrowings made by one member of the Services Group from
another such member) of any member or members of the Services
Group (taken together) aggregating L30,000,000 (or its
equivalent in other currencies) or more at any one time
outstanding become (or become capable of being declared) due
and payable or due for redemption before their normal maturity
date or are placed on demand, in each case by reason of the
occurrence of an event of default (howsoever characterised);
(ii) Any Borrowings (other than Project Finance Borrowings and any
Borrowings made by one member of the Services Group from
another such member) of any member or members of the Services
Group (taken together) aggregating L30,000,000 (or its
equivalent in other currencies) or more are not paid when due
(whether falling due by demand, at scheduled maturity or
otherwise) nor within any applicable grace period provided for
in the document evidencing or constituting those Borrowings
unless being disputed in good faith; or
(iii) If funds aggregating L30,000,000 (or its equivalent in other
currencies) are outstanding in respect thereof, any commitment
for or underwriting of any facility for Borrowings (other than
Project Finance Borrowings and any Borrowings made by one
member of the Services Group from another such member)
aggregating L30,000,000 (or its equivalent in other
currencies) or more of any member or members of the Services
Group (taken together) is cancelled or suspended by the
provider of that facility by reason of the occurrence of an
event of default (howsoever characterised).
For the purpose of this Clause 24.1(e) any amount arising pursuant to
any arrangement falling within paragraph (f) of the definition of
Borrowing in Clause 1.1 which is capable of being declared due and
payable before its normal due date by reason of the occurrence of an
event of default (howsoever characterised) shall be deemed to be the
Negative
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Termination Amount in respect of such arrangement and shall be
aggregated with all other relevant amounts accordingly; or
(f) LIQUIDATION Any order is made or resolution passed or any legal
proceedings are initiated or are consented to by any Obligor or any
Material Subsidiary, or any petition shall be presented or legal
proceedings commenced by any person (and not, where that person is
unconnected with that Obligor or Material Subsidiary save for being a
creditor of such member, discharged or stayed within twenty-one days
in the case of both legal proceedings and such petition), for the
suspension of payments generally or for any process giving protection
against creditors or for the dissolution, termination of existence,
liquidation, winding-up, bankruptcy or other like process, in each
case with respect to the Obligor or any Material Subsidiary save to
the extent any such liquidation is made to effect a merger of two
companies permitted under the terms of Clause 21.10(b); or
(g) MORATORIUM A moratorium in respect of all or any debts of any Obligor
or Material Subsidiary or a composition or an arrangement with
creditors generally of such Obligor or Material Subsidiary or any
other arrangement whereby its affairs and/or assets are submitted to
the control of or are protected from its creditors is applied for,
ordered or declared save where the relevant company is, in good faith,
contesting such application, moratorium, composition or arrangement by
appropriate proceedings diligently pursued and such application,
moratorium, composition or arrangement is discharged within 21 days;
or
(h) ADMINISTRATOR An application is made for the appointment of an
administrator (as such term is used in the Insolvency Act 1986) or
similar official in relation to any Obligor or Material Subsidiary or
an administrator or administrative receiver is appointed in respect of
any Obligor or Material Subsidiary save where the relevant company is,
in good faith, contesting such application or appointment by
appropriate proceedings diligently pursued and such application is not
discharged or appointment rescinded within 21 days or an effective
resolution is passed by the directors or shareholders of any Obligor
or Material Subsidiary for such an application to be made; or
(i) RECEIVER A liquidator or provisional liquidator (save as excepted in
paragraph (f) above) or, a trustee, receiver, administrative receiver,
manager (being a person acting on behalf of all or any creditors) or
similar officer is appointed in respect of any Obligor or Material
Subsidiary or in respect of (or takes possession of) all or any part
of its assets with a value in excess of L30,000,000 (or the equivalent
in other currencies); or
(j) INSOLVENCY Any Obligor or Material Subsidiary is declared or deemed
pursuant to any applicable legislation to be insolvent or is or is
deemed pursuant to any applicable legislation to be unable, or admits
in writing its inability, to pay its debts as they fall due or stops
or threatens to stop payment of its debts generally or becomes
insolvent within the terms of any applicable law excluding Section
123(1)(a) of the Insolvency ▇▇▇ ▇▇▇▇; or
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(k) DISTRESS Any distress, execution, attachment, sequestration or other
like process affects any Obligor or Material Subsidiary save where (i)
(I) the relevant member is, in good faith, contesting the distress,
execution, attachment, sequestration or other like process by
appropriate proceedings diligently pursued, or (II) such process is
discharged within 21 days or (III) such process is being pursued in
respect of an amount due not exceeding L30,000,000 and (ii) the
ability of any Obligor to comply with its obligations under the
Finance Documents will not be materially and adversely affected whilst
such distress, execution, attachment, sequestration or other process
is being so contested; or
(l) ANALOGOUS PROCEEDINGS There occurs, in relation to any Obligor or
Material Subsidiary in any country or territory in which it is
incorporated or carries on business or to the jurisdiction of whose
courts it or any part of its assets is subject, any event which, in
the reasonable opinion of the Majority Banks, corresponds in that
country or territory with any of the events mentioned in paragraphs
(f) to (k) (inclusive) above or any Obligor or Material Subsidiary
otherwise becomes subject, in any of those countries or territories,
to any proceedings relating to insolvency, bankruptcy, liquidation,
reorganisation or dissolution having a similar effect to the events
mentioned in paragraphs (f) to (k) (inclusive) above; or
(m) CESSATION Any Obligor or Material Subsidiary ceases to carry on all
or a substantial part of its business (save in consequence of any
reorganisation, reconstruction, amalgamation or merger permitted under
this Agreement or approved pursuant to a Waiver Letter or save as may
result from any disposal of assets permitted by the terms of this
Agreement or any solvent liquidation, dissolution or winding up of any
Material Subsidiary (not being an Obligor, other than in the event of
such liquidation made to effect a merger of two companies permitted
under the terms of Clause 21.10(b))); or
(n) CONTROL Without the prior written consent of the Majority Banks, any
single person or group of persons acting in concert (as defined in the
City Code on Takeovers and Mergers), other than one or more of
PacifiCorp and any of its Affiliates acquires control (as defined in
Section 416 of the Income and Corporation Taxes Act 1988) of Services;
or
(o) PROCEEDINGS There is current or pending at the Unconditional Date or
there shall occur thereafter any litigation, arbitration,
administrative, regulatory or other proceedings or enquiry including
without limitation any such by the Office of Fair Trading, the
Monopolies and Mergers Commission, the Department of Trade and
Industry, or any equivalent body in any other jurisdiction or the
European Commission or any division of any thereof or authority
deriving power from any thereof) concerning or arising in consequence
of any of the Transaction Documents and/or the implementation of any
matter or transaction provided for in the Transaction Documents or
otherwise concerning or involving any Obligor or Material Subsidiary
and, in each case the same has a Material Adverse Effect; or
(p) EXPROPRIATION The authority or ability of any Obligor or Material
Subsidiary to conduct its business (i) is wholly curtailed by any
seizure, expropriation, intervention,
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renationalisation or other action by or on behalf of any governmental,
regulatory or other authority or (ii) is substantially curtailed by
any seizure, expropriation, intervention, renationalisation, or other
action by or on behalf of any governmental, regulatory or other
authority which is reasonably likely to have a Material Adverse
Effect; or
(q) DISTRIBUTION BUSINESS/GENERATION BUSINESS
(i) The PA Group, ceases, or threatens to cease, to carry on the
Distribution Business; or
(ii) Any change is made in the statutory or regulatory requirements
applicable to the Distribution Business or the Generation
Business, which has, or any new statutory or regulatory
requirements are imposed on it which have, a Material Adverse
Effect and, if the changed or new statutory or regulatory
requirements apply to the United Kingdom electricity
distribution, supply or generation industry as a whole, within
30 days Services and the Facility Agent (on behalf of the
Banks) have not agreed new terms for this Agreement acceptable
to the Majority Banks; or
(r) REVOCATION AND MODIFICATION OF LICENCE
(i) The Secretary of State gives notice in writing of the
revocation of a Licence for any reason or a Licence ceases to
be in full force and effect in any material respect, in each
case except where a similar licence(s) is/are granted to a
member or members of the PA Group in its place or where such
Licence is no longer required (by law or regulation) to be
held by any Licenceholder in order that it may carry on any
business carried on by such Licenceholder on the date hereof.
(ii) Without prejudice to paragraph (i) above, any legislation
(whether primary or subordinate) removing, reducing or
qualifying the duties of the Secretary of State and/or the
Director-General with regard to the creditors or the ability
of the Licenceholder to raise finance under a Licence or of
generators of electricity or public electricity suppliers
generally is enacted and the enactment has a Material Adverse
Effect.
(iii) Any amendment is made to the terms and conditions of a Licence
and the amendment has a Material Adverse Effect and, if the
amendment is required pursuant to a law or regulation applying
to the United Kingdom electricity distribution, supply or
generation industry as a whole, within 30 days Services and
the Facility Agent (on behalf of the Banks) have not agreed
new terms for this Agreement acceptable to the Majority Banks;
or
(s) COMPLIANCE WITH ACT Any member of the PA Group fails to comply with a
final order (within the meaning of Section 25 of the Electricity Act)
or with a provisional order (within the meaning of that section) which
has been confirmed under that section (and not
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since been revoked) or any provisions of the Act detailing the rights,
powers, authorities, obligations and duties of the Secretary of State
or the Director-General or the manner in or time at which they are to
be exercised, are repealed or amended in a manner which has (or is
likely to have) a Material Adverse Effect; or
(t) POOLING AND SETTLEMENT AGREEMENT Any notice requiring EE to cease to
be a party to the Pooling and Settlement Agreement is given to EE or
any member of the PA Group under Clause 66.1.3 or 66.2.2 of the
Pooling and Settlement Agreement or EE or any member of the PA Group
otherwise ceases to be a party to the Pooling and Settlement Agreement
save where another member of the PA Group becomes a party in its
place; or
(u) INTERCREDITOR AGREEMENT
(i) Any Affiliate of Services (other than a member of the Services
Group) party thereto fails to comply with any provision of the
Intercreditor Agreement or the Powercoal Intercreditor
Agreement and, if such failure is capable of remedy within
such period, such party shall have failed to remedy such
failure within 14 days after the earlier of the relevant party
becoming aware of such default (provided that such 14 day
period shall be suspended from the date on which any such
party notifies the Facility Agent of such failure, to the date
on which the Facility Agent confirms to the relevant party
that such remedy is required) and receipt by the relevant
party of written notice from the Facility Agent to such party
requiring the failure to be remedied; or
(ii) Any representation, warranty or statement made or repeated by
or on behalf of any Affiliate of Services (other than a member
of the Services Group) party thereto, in the Intercreditor
Agreement or in the Powercoal Intercreditor Agreement or in
any certificate or statement delivered by or on behalf of any
Obligor or other member of the Services Group under or in
connection with the Intercreditor Agreement or in the
Powercoal Intercreditor Agreement, is incorrect or misleading
in any respect which is material when made or deemed to be
made or repeated by reference to the facts and circumstances
then subsisting and, if the circumstances causing such
misrepresentation are capable of remedy within such period,
such Obligor shall have failed to remedy such circumstances
within 14 days after the earlier of the relevant Obligor
becoming aware of such misrepresentation (provided that such
14 day period shall be suspended from the date on which any
Obligor notifies the Facility Agent of such misrepresentation,
to the date on which the Facility Agent confirms to the
relevant Obligor such remedy is required) and receipt by the
relevant Obligor of written notice from the Facility Agent to
such Obligor requiring the circumstances causing such
misrepresentation to be remedied; or
(iii) Any of the Intercreditor Agreement or the Powercoal
Intercreditor Agreement is not or ceases to be in full force
and effect in any material respect or shall cease to (or be
alleged by any party not to) constitute the legal, valid and
binding
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obligation of any Affiliate of Services (other than a member
of the Services Group) party thereto, in each case in a manner
and to an extent to be materially adverse to the interests of
the Banks under the Intercreditor Agreement or in the
Powercoal Intercreditor Agreement or it shall be unlawful for
any such Affiliate to perform any of its material obligations
under the Intercreditor Agreement or the Powercoal
Intercreditor Agreement provided that where the relevant
agreement is re-executed by the relevant party in the same
form in all material respects and none of the circumstances
described in this paragraph apply in respect of that agreement
as so re-executed by the relevant party and the interests of
the Banks under that agreement are not continuing to be
materially and adversely affected as a result of any of the
foregoing circumstances having occurred, the relevant Event of
Default under this paragraph shall be treated as having been
cured;
and in each such case in the reasonable opinion of the Majority Banks
the interest of the Banks under the Finance Documents (taken as a
whole) shall be materially prejudiced thereby;
(v) MATERIAL ADVERSE EFFECT Any event or series of events whether related
or not occurs which has a Material Adverse Effect; or
(w) ASSET SPLIT AND CERTAIN GUARANTEES (i) The Asset Split shall not have
occurred and been completed in all material respects as indicated in
the Structure Memorandum within 270 days of the first Utilisation
Date, or (ii) any of the guarantees referred to in Clause 21.4(a)(vi)
shall not be discharged or released within 270 days of the first
Utilisation Date.
24.2 SANCTIONS Subject where applicable, to Clauses 24.4 and 24.3, upon the
occurrence of an Event of Default and at any time thereafter while the same is
continuing and has not been waived pursuant to a Waiver Letter, the Facility
Agent may, and shall if so directed by the Majority Banks, by notice to
Services:
(a) declare than an Event of Default has occurred; and/or
(b) declare that the Total Commitments shall be cancelled or reduced
forthwith to the level specified by the Facility Agent, whereupon the
same shall be so cancelled and all fees payable in relation to the
amount of the Total Commitments so cancelled or reduced shall become
immediately due and payable; and/or
(c) declare that all or part of the Advances to some or all of the
Borrowers be payable on demand, whereupon (to the extent so declared)
they shall immediately become payable by the relevant Borrower on
demand by the Facility Agent (and if and to the extent any such demand
is subsequently made those Advances (to the extent so declared and
demanded), together with accrued interest on and all other amounts
accrued under this Agreement in respect of the Advances so declared
and demanded, shall be immediately due and
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payable); and/or
(d) demand that all or part of the Advances to some or all of the
Borrowers, together with accrued interest, and all other amounts
accrued under this Agreement be immediately due and payable, whereupon
(to the extent so demanded) they shall become immediately due and
payable; and/or
(e) require the payment to the Facility Agent of a sufficient sum to cover
the Outstanding Liability Amounts under some or all outstanding
Documentary Credits issued for the account of some or all of the
Borrowers, whereupon the same shall become immediately due and payable
by the relevant Borrowers and, once paid, shall be held by the
Facility Agent in an interest bearing account for application in
reimbursing the LC Bank or the Banks forthwith for all payments made
or to be made under such outstanding Documentary Credits.
24.3 CLEAN UP PERIOD If during the period ending on the date six (or if it
relates to Citizens, nine) months from the first Utilisation Date any event or
circumstance which (but for this Clause 24.3) would constitute a Default (the
"POTENTIAL EVENT OF DEFAULT") shall exist which consists of, or is a direct
consequence of any event or circumstance which occurred in relation to TEG or
any of its Subsidiaries (or its or any of their business, assets or liabilities)
on or before the Unconditional Date, then the following shall apply:
(a) Services or PA or TEG shall notify the Facility Agent of that fact by
fax promptly after becoming aware thereof, giving a reasonable
description of:
(i) the Potential Event of Default and (so far as known to them) its
causes; and
(ii) any remedial action in relation to that Potential Event of
Default which Services and/or PA and/or TEG propose to take or
procure is taken;
(b) that Potential Event of Default shall not constitute a Default, and
the Facility Agent shall not with respect to that Potential Event of
Default (but, for the avoidance of doubt, not so as to restrict the
Facility Agent's rights to take such action with respect to any other
Event of Default which is not a Potential Event of Default) be
entitled to take any of the actions set out in Clause 24.2, until
(assuming that the Potential Event of Default is then continuing as an
Event of Default) six (or if it relates to Citizens, nine) months
after the first Utilisation Date,
Provided that (A) the foregoing shall not apply with respect to any Potential
Event of Default under any of the Clauses 24.1(a), (d), (e)(i) (in consequence
only of Borrowings being declared due and payable or capable of being declared
due and payable which are not Refinancing Debt), (f), (g), (h), (i), (j), (l)
(only to the extent analogous to (f) to (j) inclusive), (n), (p), (q), (r), (s),
(t) or (v) in each case irrespective of whether or not that Potential Event of
Default occurred in consequence of any event or circumstance which occurred
before the Unconditional Date, and (B) any Potential Event of Default shall
nevertheless constitute a Default for the purposes of Clause 4.3, save (in the
case only of a Potential Event of Default
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consisting of a Default arising under Clause 24.1(b)(ii), (c) or (e) (i) (in
consequence as aforesaid)) where it is demonstrated to the reasonable
satisfaction of Citibank, N.A. that such Potential Event of Default is likely to
be cured within six (or if it relates to Citizens, nine) months after the first
Utilisation Date without any Material Adverse Effect occurring.
24.4 CERTAINTY OF FUNDING
(i) No Finance Party shall be entitled to prevent the funding of the Offer
or exercise any right of rescission or set-off or similar right
(whether on the basis of misrepresentation or Event of Default or
otherwise) until after the Offer Termination Date if to do so would
prevent the funding of the Offer in accordance with Clause 4.2.
(ii) No Finance Party shall be entitled, until after the Offer Termination
Date, to exercise any other right or remedy referred to in Clause
24.2(a) to (e) or under any other Finance Document unless:
(a) a breach of Clause 22 (other than Clause 22(a)(i)(C), (ii) or
(iii) or 22(d)) shall have occurred and be continuing which has
not been waived by a Waiver Letter; or
(b) any of the representations and warranties in Clause 20.1(a), (b),
(c), (d)(i) or (ii), (n) or (p) is incorrect in any material
respect when made or repeated, ignoring any references to
Subsidiaries (other than PA), TEG, its Subsidiaries and their
respective businesses and assets; or
(c) any Event of Default falling within any of paragraphs (f) to (j)
inclusive and (l) (only to the extent analogous to (f) to (j)
inclusive) of Clause 24.1 has occurred and is continuing with
respect to Services, Finance or PA and has not been waived by a
Waiver Letter.
24.5 NO BREACH FROM ASSET SPLIT ARRANGEMENTS The Finance Parties acknowledge
and agree that PA may require certain borrowing facilities on and only for the
day that the Asset Split takes place in order to complete the Asset Split. Such
borrowing and any security granted in respect thereof shall be permitted
hereunder and all necessary consents, waivers or exclusions required under the
Finance Documents are now granted. Save for the purposes of and where necessary
to give effect to this Clause any such borrowings, the interest payable on them
and the security given in connection therewith shall be ignored for all purposes
of the Finance Documents.
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25. INDEMNITIES
25.1 CURRENCY INDEMNITY
(a) If any amount payable by any Obligor under or in connection with any
Finance Document is received by any Finance Party in a currency (the
"PAYMENT CURRENCY") other than that agreed to be payable under that
Finance Document (the "AGREED CURRENCY"), whether as a result of any
judgement or order or the enforcement of the same, the liquidation of
such Obligor or otherwise and the amount produced by converting the
Payment Currency so received into the Agreed Currency at market rates
prevailing at or about the time of receipt of the Payment Currency is
less than the amount of the Agreed Currency due under that Finance
Document, then the Obligors shall, as an independent and additional
obligation, indemnify each Finance Party for the deficiency and any
loss sustained as a result.
(b) The above indemnities shall constitute separate and independent
obligations of each of the Obligors from their other obligations under
the Finance Documents and shall apply irrespective of any indulgence
granted by any Finance Party. The Obligors shall pay the reasonable
costs of making any conversion from the Payment Currency to the Agreed
Currency.
(c) Each Obligor waives any right it may have in any jurisdiction to pay
any amount under this Agreement in a currency other than that in which
it is expressed to be payable under that Finance Document.
25.2 OTHER INDEMNITIES The Obligors shall indemnify each Finance Party against
any losses (excluding loss of the applicable Margin save in the case of
paragraphs (a) and (b) below), charges or expenses which such Finance Party may
sustain or incur as a consequence of:
(a) the occurrence of any Default; or
(b) the operation of Clause 2.5 or 24.2; or
(c) any repayment or prepayment of an Advance or payment of an overdue
amount being made otherwise than on its Interest Date; or
(d) (other than by reason of default by any Finance Party) any Utilisation
not being made (or not being made in full) to any Borrower after a
Request has been given pursuant to Clause 5 or Clause 6 (as the case
may be),
including but not limited to any losses, charged or expenses on account of funds
acquired, contracted for or utilised to fund any amount payable under this
Agreement, any amount repaid or prepaid or any Utilisation (as the case may be).
A certificate of such Finance Party as to the amount of any such loss or expense
shall be prima facie evidence in the absence of manifest error.
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25.3 INDEMNITY RELATING TO FACILITIES
(a) Services agrees to indemnify each Finance Party and any Holding
Company or subsidiary of any Finance Party and each of their
respective directors, officers and employees against any and all
claims, damages, liabilities, costs and expenses (including reasonable
legal fees) which may be incurred by or asserted against such Finance
Party or any such Holding Company or Subsidiary or their respective
directors, officers and employees in connection with or arising out of
any such proceedings, actions or enquiry by any regulatory authority
of a type referred to in Clause 24.1(o) (ignoring the provision as to
materiality contained therein) or any litigation or other proceedings
(other than between Finance Parties) connected with the Offer except
to any extent resulting from the gross negligence or wilful misconduct
of any person otherwise entitled to be indemnified under this
indemnity. It is agreed that:
(i) each Finance Party shall notify Services promptly in
reasonable detail of any potential claim by it or any Holding
Company or Subsidiary of it or any of their respective
directors, officers or employees on Services under this Clause
25.3 promptly upon its becoming aware of that potential claim;
and
(ii) if Services wishes any Finance Party to enter into any
negotiations with a view to settlement of any dispute with any
third party likely to give rise to any claims, damages,
liability, costs and expenses for which a claim may be made
under this Agreement, it shall notify that Finance Party
accordingly, which Finance Party will then enter into such
negotiations in good faith on a without prejudice basis but
shall not be bound so to settle unless such Finance Party is
agreeable so to settle (such agreement not to be unreasonably
withheld); and
(iii) any payments required to be made by reason of this indemnity
shall be in addition to any other amounts provided for in this
Agreement or agreed to be paid in respect of the Facilities.
(b) Each Finance Party shall give promptly to Services such details and
copies of legal opinions and process served concerning (or concerning
the circumstances giving rise to) any claims, damages, liabilities,
costs and expenses which may form the basis of any claim by it on
Services hereunder, as Services may reasonably request.
(c) At the request of Services, from time to time, each Finance Party will
discuss with Services and will give careful consideration in good
faith to the views of Services concerning the appointment of
professional advisers in connection with any such claims, damages,
liabilities, costs and expenses (and in connection with the
circumstances giving rise thereto and any proceedings current, pending
or threatened relating thereto) and the conduct of any proceedings,
and will use reasonable endeavours to procure that (once appointed)
all professional advisers acting for it in relation thereto shall do
likewise and that where possible and where such Finance Party does not
reasonably consider that it is
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against such Finance Party's best interest, one firm of professional
advisers only is appointed to represent all of the Finance Parties.
(d) Notwithstanding the foregoing provisions of this Clause 25.3, no
Finance Party shall be required to disclose to Services or any other
Obligor any matter with regard to which it is under a duty of
non-disclosure. All information which may be disclosed by any Finance
Party pursuant to this Clause 25.3 shall be disclosed on the same
conditions as to confidentiality, as are set out in Clause 33.
26. AGENTS, ARRANGERS AND BANKS
26.1 APPOINTMENT Each Bank hereby appoints the Facility Agent and the Security
Agent to act as its agent hereunder and with respect to the Finance Documents
and irrevocably authorises the Facility Agent on such Bank's behalf to:
(a) enter into any Borrower Accession Agreement, Guarantor Accession
Agreement or Security Agreement (whereupon and by which act such Bank
shall become bound thereby); and
(b) perform such duties and exercise such rights and powers under the
Finance Documents as are specifically delegated to such Agent by the
terms thereof, together with such rights and powers as are reasonably
incidental thereto.
Each Agent shall have only those duties and powers which are expressly specified
in the Finance Documents. Each Agent's duties under the Finance Documents are
intended to be of a mechanical and administrative nature.
26.2 MAJORITY BANK'S DIRECTIONS In the exercise of any right or power granted
and as to any matter not expressly provided for by the Finance Documents, each
Agent shall act in accordance with the instructions of the Majority Banks or as
this Agreement may require and shall be fully protected in so doing. Any such
instructions shall be binding on all the Banks. Subject to Clauses 26.7 and
26.16, in the absence of any such instructions and/or any relevant requirement
contained in any Finance Document, each Agent may act or refrain from acting
with respect to such right or power and as to any such matter as it shall see
fit.
26.3 RELATIONSHIP
(a) The relationship between each Bank and each Agent is that of principal
and agent. Nothing herein (other than in relation to the Security
Agent and the Security Documents as to which the Security Agent shall
be a trustee for the Banks) shall constitute the Facility Agent a
trustee or (save, with regard to any Bank, as necessarily results from
its agency relationship with that Bank) fiduciary for any Bank, any
Obligor or any other person.
(b) No Agent shall be liable to any Obligor for any breach by any Bank of
this Agreement or be liable to any Bank for any breach by any Obligor
of any Finance Document.
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26.4 DELEGATION Without prejudice to its obligations hereunder, each Agent may
act under the Finance Documents through its personnel and through agents
selected by it with reasonable care (who shall be entitled to the same
protections as those given to the Agents under this Clause 26).
26.5 DOCUMENTATION Neither any Agent or any of the Arrangers nor any of its
officers, employees or agents shall be responsible to any Bank or to each other
for:
(a) the execution, genuineness, validity, enforceability or sufficiency of
any Finance Document or any other document in connection therewith; or
(b) the collectability of amounts payable thereunder; or
(c) the accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document or other document in connection
therewith.
26.6 DEFAULT No Agent shall be required to ascertain or inquire as to the
performance or observance by any Obligor of the terms of any Finance Document or
any other document in connection therewith. No Agent shall be deemed to have
knowledge of the occurrence of any Default unless that Agent has received notice
from a party hereto describing such Default and stating that such notice is a
"Notice of Default". If any Agent receives such a notice of default or officers
of any Agent engaged in the performance of that Agent's functions under the
Finance Documents otherwise acquire actual knowledge that a Default has
occurred, that Agent shall give notice thereof promptly to the Banks. Each
Agent shall take or refrain from taking such action with respect to such Default
as shall be directed by the Majority Banks, provided that nothing herein
contained shall oblige any Agent to institute any legal action or proceedings on
behalf of any Bank. Until any Agent shall have received such directions, it may
(but shall not be obliged to) take or refrain from taking such action with
respect to such Default as it shall see fit.
26.7 EXONERATION Neither Agent nor any of its officers, employees or agents
shall be liable to any Bank for any action taken or omitted under or in
connection with any Finance Document unless caused by its or their gross
negligence or wilful misconduct.
26.8 RELIANCE Each Agent may rely on any communication or document reasonably
believed by it to be genuine and correct and may rely on any statement made by a
director or employee of any person regarding any matters which may reasonably be
assumed to be within his knowledge or within his power to verify. Each Agent
may engage, pay for and rely on legal or other professional advisers selected by
it and shall be protected in so relying.
26.9 CREDIT APPROVAL Each of the Banks severally represents and warrants to
each Agent and each of the Arrangers that it has made its own independent
investigation and assessment of the financial condition and affairs of each
Obligor and their related entities and other parties considered by it to be
relevant in connection with its participation in this Agreement and has not
relied exclusively on any information, including the Information Memorandum
provided to such Bank by any Agent or any Arranger in connection herewith. Each
Bank represents, warrants and undertakes to each Agent and each Arranger that it
shall continue to make its own independent appraisal of the creditworthiness of
the Obligors and
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other parties considered by it to be relevant in connection with the Finance
Documents and their related entities while any amount is or may be outstanding
under the Finance Documents.
26.10 INFORMATION
(a) The Facility Agent shall promptly furnish each Bank with a copy of any
documents received by it under Clause 21.2. If so requested by any
Bank, the Facility Agent shall furnish to such Bank (at the expense of
Services) a copy of any of the documents listed in the Seventh
Schedule delivered on or prior to the first Utilisation Date.
(b) The Facility Agent shall, without any liability on its part in the
event of any failure to do so except in the case of its negligence or
wilful default, send to the Banks (at the expense of Services) any
document (or a summary of the material details of such document)
received by it from any Obligor pursuant to this Agreement which
contains any information which the Facility Agent considers to be of
direct and material interest and significance to the Banks and their
interests under this Agreement and which can lawfully be distributed
by the Facility Agent without incurring any liability to any person
whatsoever.
(c) Save as provided in paragraph (a) above neither Agent nor any Arranger
shall have any duty either initially or on a continuing basis to
provide any Bank with any credit or other information with respect to
the financial condition or affairs of any Obligor or any of their
related entities whether coming into its possession or that of any
related entities of the Facility Agent or any Arranger before the
entry into of this Agreement or at any time thereafter.
(d) Unless specifically requested to do so by a Bank, neither Agent shall
have any duty to request any certificates or other documents from any
Obligor under any of the Finance Documents.
(e) No Agent need disclose any information relating to any Obligor or any
of their related entities or any other person if such disclosure would
or might in the reasonable opinion of the Facility Agent constitute a
breach of any law or regulation or be otherwise actionable at the suit
of any person.
26.11 THE FACILITY AGENT AND THE ARRANGERS INDIVIDUALLY
(a) Each Agent and each Arranger shall have the same rights and powers
hereunder as any other Bank and may exercise the same as though it
were not an Agent or an Arranger.
(b) Each Agent and each Arranger may accept deposits from, lend money to
and generally engage in any kind of banking, trust, advisory or other
business whatsoever with any Obligor and their related entities and
accept and retain any fees payable by any Obligors or any related
entities for its own account in connection herewith and/or therewith
without liability to account therefor to any Bank or any Arranger.
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26.12 INDEMNITY Each Bank agrees to indemnify each Agent and each Arranger
on demand (to the extent not reimbursed by any Obligor and without prejudice to
the liability of any Obligor under any Finance Document) for any and all
liabilities, losses, damages, penalties, actions, judgments, costs, expenses or
disbursements of any kind whatsoever which may be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out of its acting
as an Agent under any of the Finance Documents or performing its duties
thereunder or any action taken or omitted by any Agent thereunder (including,
without limitation, the charges and expenses referred to in Clause 27.5 and all
stamp Taxes on or in connection with any of the Finance Documents but excluding
payment of its agency fee pursuant to Clause 27.3 and the normal administrative
costs and expenses incidental to the performance of its agency duties hereunder
save to the extent increased in consequence of a Default). Such indemnification
by each Bank shall be pro rata to its Commitments. Notwithstanding the
foregoing, no Bank shall be liable for any portion of the foregoing resulting
from any Agent's gross negligence or wilful misconduct.
26.13 LEGAL RESTRICTIONS Each Agent may refrain from doing anything which
would or might in its reasonable opinion (a) be contrary to the law of any
applicable jurisdiction or any applicable official directive or regulation or
(b) render it liable to any person, and may do anything which in its reasonable
opinion (acting on legal advice) is necessary to comply with any such law or
directive.
26.14 RESIGNATION Each Agent may (after consultation with Services) resign
by giving notice thereof to the Banks and Services and may be removed by the
Majority Banks giving notice to that effect to such Agent and Services after
prior consultation with Services. In that event the Majority Banks, with the
consent of Services where the relevant Agent has so resigned (such consent not
to be unreasonably withheld or delayed and Services shall be deemed to have
consented if it has not given notice refusing consent within 14 days of
receiving any request for consent) and in any event after consultation with
Services to the extent practicable, may appoint a successor for the relevant
Agent which shall be a reputable and experienced bank, incorporated in or having
a branch in England and acting through such branch. If the Majority Banks have
not, within 30 days after such notice of resignation or removal, so appointed a
successor Agent which shall have accepted such appointment, the retiring Agent,
after consultation with Services, shall have the right to appoint a successor
Agent which shall be a reputable and experienced Bank incorporated or having a
branch in England and acting through such branch. The resignation or removal of
the retiring Agent and the appointment of any successor Facility Agent or
Security Agent shall both become effective upon the successor Facility Agent or
Security Agent notifying all the parties hereto in writing that it accepts such
appointment, whereupon the successor Facility Agent or Security Agent shall
succeed to the position of the retiring Facility Agent or Security Agent and the
terms "FACILITY AGENT" and "SECURITY AGENT" in all of the Finance Documents
shall include such successor Agent where appropriate. This Clause 26 shall
continue to benefit a retiring Agent in respect of any action taken or omitted
by it hereunder while it was an Agent.
26.15 ASSIGNMENTS Each Agent may treat each Bank named as a party hereto as
continuing to be such a party, as entitled to payments hereunder and as acting
hereunder through its Facility Office until it has received notice from such
Bank to the contrary.
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26.16 AMENDMENTS
(a) If authorised by the Majority Banks, the Facility Agent or (in the
case of the Security Documents) the Security Agent may (except where
any other authority is required for the same by the express provisions
of this Agreement) grant waivers or consents or (with the agreement of
Services) vary the terms of the Finance Documents. Any such waiver,
consent or variation so authorised and effected by the Facility Agent
or, as the case may be, the Security Agent shall be binding on all the
Banks and the Facility Agent or, as the case may be, the Security
Agent shall be under no liability whatsoever in respect of any such
waiver, consent or variation, provided always that, except with the
prior written consent of all the Banks and Services, nothing in this
Clause 21.16(a) shall authorise:
(i) the extension of any Availability Period; or
(ii) any variation of the definition of "MAJORITY BANKS" or
"MAJORITY OFFER BANKS" in Clause 1.1; or
(iii) any extension of the date for, or alteration in the amount or
currency of, or waiver of any payment of principal, interest,
Margin, fee, commission or any other amount payable under any
of the Finance Documents; or
(iv) any change to any Bank's Commitment; or
(v) any variation of Clauses 12.2, 13, 31.2, 33 or this Clause
26.16; or
(vi) any variation of any provision wherein (before such variation
) it is provided that certain things may not be done without
or may be done with the consent or approval of all the Banks.
(b) If authorised by the Majority Banks, the Security Agent may grant any
waiver or consent in relation to, or variation of the material
provisions of, any Security Document (but not, for the avoidance of
doubt, so as to release any security). Subject as otherwise provided
for in this Agreement or any Security Document, any release of the
security provided by any Security Document over the Shares requires
the consent of all the Banks. Notwithstanding anything in this
Agreement to the contrary, the Banks consent to the release by the
Security Agent of such security constituted by the Security Documents
to the extent necessary to enable Finance to be merged with or
liquidated into Services and/or (provided that the successor entity
remains bound by the terms hereof as if it were PA) TEG to be merged
with or liquidated into PA and/or any other merger or liquidation set
out in the Structure Memorandum; and the Security Agent shall effect
such release at such time.
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26.17 SECURITY AGENT AS TRUSTEE
(a) The Security Agent in its capacity as trustee or otherwise shall not
be liable for any failure, omission, or defect in perfecting the
security constituted by any Security Document or any security created
thereby including, without limitation, any failure to register the
same in accordance with the provisions of any of the documents of
title of the relevant Obligor to any of the property thereby charged.
(b) The Security Agent in its capacity as trustee or otherwise may accept
without enquiry such title as any Obligor may have to the property
over which security is intended to be created by any Security
Document.
(c) Save where the Security Agent holds a legal mortgage over or over an
interest in, real property or shares, the Security Agent in its
capacity as trustee or otherwise shall not be under any obligation to
hold any title deeds, Security Documents or any other documents in
connection with the property charged by any Security Document or any
other such security in its own possession or to take any steps to
protect or preserve the same. The Security Agent may permit the
relevant Obligor to retain all such title deeds and other documents in
its possession.
(d) Save as otherwise provided in the Security Documents, all moneys which
under the trusts herein or therein contained are received by the
Security Agent in its capacity as Trustee or otherwise may be invested
in the name of or under the control of the Security Agent in any
investment for the time being authorised by English law for the
investment by trustees of trust money or in any other investments
which may be selected by the Security Agent with the consent of the
Majority Banks. Additionally, the same may be placed on deposit in
the name of or under the control of the Security Agent at such bank or
institution (including any Agent) and upon such terms as the Security
Agent may think fit. Any and all such monies and all interest thereon
shall be paid over to the Facility Agent forthwith upon demand by the
Facility Agent.
(e) Each Bank hereby confirms its approval of the Finance Documents and
any security created or to be created pursuant thereto and hereby
authorises, empowers and directs the Security Agent (by itself or by
such person(s) as it may nominate) to execute and enforce the same as
trustee or as otherwise provided (and whether or not expressly in the
Banks' names) on its behalf.
26.18 BANKS
(a) Each Bank (other than ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners, L.P. or any
Treaty Bank) represents to the Facility Agent that, in the case of a
Bank which is a Bank on the date of this Agreement, on the date of
this Agreement and, in the case of a Bank which becomes a Bank after
the date of this Agreement, on the date it becomes a Bank it is:
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(i) a "bank" as defined in section 840A of the Income and
Corporation Taxes Act 1988 and resident in the United Kingdom;
and
(ii) beneficially entitled to the principal and interest payment by
the Facility Agent to it under this Agreement,
and shall forthwith notify the Agent if either representation ceases
to be correct.
(b) The Facility Agent may at any time, and shall if requested to do so by
the Majority Banks, convene a meeting of the Banks.
27. FEES, EXPENSES AND STAMP TAXES
27.1 COMMITMENT FEE
(a) PA shall pay to the Facility Agent for each Bank a commitment fee
computed at the rate of zero point five zero (0.50%) per annum on that
Bank's Tranche 1 Commitment and Tranche 2 Commitment during the period
from the date of this Agreement up to the Unconditional Date.
(b) PA shall pay to the Facility Agent for each Bank a commitment fee
computed at the rate per annum equal to fifty per cent. (50%) of the
applicable Margin (as set out in Column 2 in the definition of Margin
in Clause 1.1) from time to time on the daily unutilised balance of
that Bank's Tranche 1 Commitment and Tranche 2 Commitment on and from
the Unconditional Date up to and including the last day of the
relevant Availability Period.
(c) Commitment fee shall accrue from day to day and be computed on the
basis of a year of 365 days for the actual number of days elapsed.
Accrued commitment fee is payable to the Facility Agent quarterly in
arrear from the date of this Agreement on (i) the earlier of the first
occurring Utilisation Date hereunder and the expiry of the Tranche 1
Availability Period, (ii) the Final Repayment Date, and (iii) for any
Bank(s) on the cancelled amount of its Commitment(s) at the time the
cancellation takes effect.
27.2 FRONT END AND AGENCY FEES
(a) PA shall pay to the Facility Agent for the account of the Arrangers
front end fees in amounts and on the dates as stated in a letter dated
on or around the date hereof from the Facility Agent to PA and
countersigned by PA, to be distributed in the amounts and manner as
heretofore agreed between the Arrangers.
(b) PA shall pay to the Facility Agent for its own account the agency fees
on the dates and in the amount agreed in the letter of even date
herewith from the Facility Agent to PA and countersigned by PA.
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(c) PA shall pay to the Security Agent for its own account the agency fees
on the dates and in the amount agreed in the letter of even date
herewith for the Security Agent to PA and countersigned by PA.
27.3 DOCUMENTARY CREDIT ISSUANCE FEE Each Borrower shall pay to the Facility
Agent on the Utilisation Date in respect of each Documentary Credit issued at
its request an administration and issuance fee of L1000.
27.4 DOCUMENTARY CREDIT PER ANNUM FEE Each Borrower shall pay to the Facility
Agent for distribution amongst the Banks pro rata to their respective
Commitments between it and the Banks in the case of payments arising under (a)
below, or for distribution to the LC Bank in the case of payments arising under
(b) below a fee equivalent to the aggregate of:
(a) the Margin applied on the Outstanding Liability Amount of each
Documentary Credit issued at its request; and
(b) (in the case of Documentary Credits issued by the LC Bank) an
additional point two zero per cent. (0.20%) per annum applied on that
portion of the face amount of each Documentary Credit for which the LC
Bank is counter-indemnified by the Banks (other than itself where the
LC Bank is also the Bank) pursuant to Clause 5.6,
in each case in respect of the period between the date of issue of the
Documentary Credit and the earlier of its Expiry Date and the date on which its
Outstanding Liability Amount has been reduced to nil.
The fee shall accrue from day to day and be calculated on the basis of a 365 day
year for the actual number of days elapsed and shall be payable quarterly in
arrears and on the Expiry Date of such Documentary Credit.
27.5 INITIAL AND DOCUMENTATION EXPENSES
(a) Subject to Clause 27.5(c) below, on the date of the first Utilisation
if demanded before such date and otherwise promptly on demand by the
Facility Agent after such date, PA shall reimburse the Facility Agent
for the reasonable out-of-pocket charges and expenses incurred by it
in respect of the fees and expenses of its legal advisers incurred in
connection with the negotiation, preparation, printing and execution
of the Finance Documents (including any thereof which may be executed
at any time after the date of this Agreement other than any
Substitution Certificate), together in all cases with all value added
and similar Taxes applicable to the same.
(b) Subject to Clause 27.5(c) below, PA shall reimburse the Facility Agent
within 30 days of demand for the reasonable out-of-pocket charges and
expenses (including, but not limited to, the fees and expenses of
legal advisers) incurred by it or the Arrangers in connection with the
syndications of the Finance Documents and the Commitments and
Utilisations thereunder prior to the Syndication Date and the
execution of any further Finance Documents (other than any
Substitution Certificate) from time to time, together with all
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value added tax and similar Taxes applicable to the same.
(c) Where this Agreement provides that any document or other information
is to be copied or provided by the Facility Agent to all or any of the
Banks or the Security Agent (including, without limitation, as
contemplated in Clause 26.10(a) or (b)) PA will promptly on demand
reimburse the Facility Agent for the reasonable out-of-pocket charges
and expenses incurred by it in so copying or providing such document
or other information, together with all value added and similar Taxes
applicable to the same.
(d) Upon the occurrence of the Unconditional Date the out-of-pocket
charges and expenses referred to in Clause 27.5(b) shall be deemed not
to include internal costs so incurred by the Arrangers.
27.6 EXPENSES OF ADMINISTRATION, ENFORCEMENT, WAIVER AND AMENDMENT Services (or
the relevant Borrower where in the reasonable opinion of the Facility Agent such
amounts are referable to a particular Borrower) shall reimburse each of the
Finance Parties promptly on demand for the out-of-pocket charges and expenses
(including the fees and expenses of legal advisers and notaries and the fees and
expenses of any accountants or other professional advisers (a) incurred by any
of them in connection with the enforcement of, or the preservation of any rights
under, any of the Finance Documents, (b) reasonably incurred by any of them in
connection with any waiver or consent which may at any time be sought by any
Obligor under or in relation to any of the Finance Documents, and (c) reasonably
incurred by any of them in connection with any variation of or supplement to any
of the Finance Documents (other than any Substitution Certificate or a variation
or supplement requested by a Finance Party), together, in each case, with all
value added and similar Taxes applicable to the same.
27.7 STAMP TAXES PA shall pay or indemnify the Finance Parties against any and
all stamp, registration and similar Taxes (excluding such Taxes as are imposed
by a jurisdiction other than the United Kingdom) which may be or become payable
in connection with the entry into, performance or enforcement against any of the
Obligors or any of the Finance Documents (other than any Substitution
Certificate).
28. WAIVERS, REMEDIES CUMULATIVE
28.1 WAIVERS No failure to exercise and no delay in exercising any right, power
or privilege under any Finance Document by any of the Finance Parties shall
operate as a waiver of the same, nor shall any single or partial exercise of any
such right, power or privilege preclude any other or further exercise of the
same, or the exercise of any other right, power or privilege. No waiver by any
of the Finance Parties shall be effective unless it is in writing.
28.2 REMEDIES CUMULATIVE The rights and remedies of each of the Finance Parties
in this Agreement may be exercised as often as necessary and are cumulative and
not exclusive of any rights or remedies provided by law.
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29. NOTICES
29.1 ADDRESS Except as otherwise stated in this Agreement, all notices or other
communications hereunder to any party hereto shall be made by letter or by
facsimile transmission (and, in the case of communications to any Obligor shall
be copied to PacifiCorp by facsimile transmission at such facsimile number as
shall be notified in writing to the Facility Agent by PacifiCorp from time to
time) and shall be deemed to be duly given or made when delivered (in the case
of letter or facsimile transmission) to such party addressed to it at its
address or telex number or facsimile number, and for such attention, specified
in the relevant Part of the First Schedule or the Second Schedule, or at such
other address or telex number or facsimile number as such party may after the
date of this Agreement specify for such purpose to the others by notice.
29.2 NON-WORKING DAYS A notice or other communication received on a non-working
day or after 5.00 p.m. on a working day in the place of receipt shall be deemed
to be served on the next following working day in such place.
30. ASSIGNMENTS, TRANSFERS AND SUBSTITUTIONS
30.1 SUCCESSORS This Agreement shall be binding upon and enure to the benefit
of the Obligors, the Banks, the Facility Agent, the Security Agent and their
respective successors and permitted assigns.
30.2 ASSIGNMENTS AND TRANSFERS BY OBLIGORS Save as expressly provided in this
Agreement, no Obligor may assign or transfer all or any part of its rights or
obligations under this Agreement without the prior written consent of all the
Banks (but this Clause shall be without prejudice to the operation of Clause
21.10(b)).
30.3 TRANSFERS BY BANKS
(a) Subject to Clause 30.9 and as provided below, a Bank (the "EXISTING
BANK") may at any time assign, transfer or novate any of its rights
and/or obligations under this Agreement to a Recognised Bank (the "NEW
BANK") provided that (i) save where the New Bank is a Bank or an
Affiliate of the Existing Bank, the prior consent of Services has been
obtained (such consent not to be unreasonably withheld or delayed) and
(ii) save where the New Bank is a Bank or Affiliate of the Existing
Bank the New Bank takes an assignment, transfer or novation of a
minimum amount of L10,000,000 (or, if less, the whole of its
Commitment).
An Existing Bank shall not assign, transfer or novate in part (but
shall not be prohibited from so doing in whole) any of its rights
and/or obligations under this Agreement unless it will maintain a
Commitment or Commitments aggregating a minimum amount of at least
L10,000,000 as of the date immediately following the date of such
transfer, provided that this sub-paragraph shall not apply to any such
novations made to ▇▇▇▇▇▇▇ ▇▇▇▇▇ International Bank by ▇▇▇▇▇▇▇ Sachs
Credit Partners, L.P. (or vice versa).
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Notwithstanding any provision of this Agreement to the contrary:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners, L.P. shall have the right to
novate to ▇▇▇▇▇▇▇ Sachs International Bank in accordance with
Clause 30.4 (the "NOVATION"), but not to assign or otherwise
transfer, any of its rights and/or obligations; and
(ii) Treaty Banks may not assign their rights under any Finance
Document and may only transfer their rights and obligations by
novation in accordance with Clause 30.4 (and not otherwise).
Recognised Banks may not assign their rights under any Finance
Document to a Treaty Bank and may only transfer their rights and
obligations to a Treaty Bank by novation in accordance with
Clause 30.4 (and not otherwise).
(b) Any consent required to be given by Services under paragraph (a) above
shall be deemed to have been given unless Services shall have notified
the requesting party to the contrary within five Business Days after
receiving the request for such consent.
(c) A transfer of obligations will be effective only if either:
(i) the obligations are novated in accordance with Clause 30.4
(Procedure for substitution); or
(ii) the New Bank confirms in writing to the Facility Agent and
Services that it undertakes to be bound by the terms of the
Finance Documents as a Bank in form and substance satisfactory to
the Facility Agent and Services (acting reasonably). On the
transfer becoming effective in this manner the Existing Bank
shall be relieved of its obligations under the Finance Documents
to the extent that they are transferred to the New Bank.
(d) Nothing in this Agreement restricts the ability of a Bank to
sub-participate or sub-contract an obligation if that Bank remains
liable under this Agreement for that obligation.
(e) On each occasion an Existing Bank assigns, transfers or novates any of
its rights and/or obligations under this Agreement (other than where
such assignment, transfer or novation is made on general syndication
or to an Existing Bank or an Affiliate), the New Bank shall, on the
date the assignment, transfer and/or novation takes effect, pay to the
Facility Agent for its own account a fee of L750.
(f) Neither an Existing Bank nor any other Finance Party is 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 the
-123-
financial condition of or the performance of its obligations
under the Finance Documents by any Obligor; or
(iii) the accuracy of any statements or information (whether written
or oral) made in or in connection with or supplied in
connection with any Finance Document.
(g) 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 each Obligor 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 or any other Finance Party
in connection with any Finance Document;
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
while any amount is or may be outstanding under this Agreement
or any Commitment is in force; and
(iii) is a bank or financial institution whose ordinary business
includes participation in syndicated facilities of this type.
(h) 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/or obligations assigned, transferred or novated under this
Clause 30.3 or Clause 30.4; or
(ii) support any losses incurred by the New Bank by reason of the
non-performance by any Obligor or its obligations under this
Agreement or otherwise.
(i) Any reference in this Agreement 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 this Agreement and its Commitment has been cancelled or reduced
to nil.
30.4 PROCEDURE FOR SUBSTITUTION
(a) Subject to satisfaction of the requirements set out in Clause 30.3(a),
a novation is effected if:
(i) the Existing Bank and the New Bank deliver to the Facility
Agent (with a copy to Services) a duly completed certificate
executed by the Existing Bank and the New Bank, substantially
in the form of the Fourth Schedule (a "SUBSTITUTION
CERTIFICATE"); and
(ii) the Facility Agent executes it.
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Promptly upon its receipt (by facsimile transmission or otherwise) the
Facility Agent hereby agrees to execute any Substitution Certificate
delivered to it and which has been duly completed and executed by
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners, L.P. as Existing Bank and ▇▇▇▇▇▇▇ Sachs
International Bank as New Bank or vice versa. The Facility Agent shall
be permitted to rely on a facsimile copy of such Substitution
Certificate.
(b) Each Party (other than the Existing Bank and the New Bank) irrevocably
authorises the Facility Agent to execute any duly completed
Substitution Certificate on its behalf.
(c) To the extent that they are expressed to be the subject of the
novation in the Substitution Certificate:
(i) the Existing Bank and the other Parties (the "EXISTING
PARTIES") will be released from their obligations to each
other under the Finance Documents (the "DISCHARGED
OBLIGATIONS"), except for any obligation which the Existing
Bank has to the LC Bank pursuant to Clause 5.6 in respect of
Documentary Credits issued prior to the date on which such
novation takes effect as determined below unless otherwise
agreed in writing by the LC Bank (provided that the LC Bank
hereby agrees to any novation from ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit
Partners, L.P. to ▇▇▇▇▇▇▇ Sachs International Bank (and vice
versa));
(ii) the New Bank and the existing Parties will assume obligations
towards each other under the Finance Documents 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
under the Finance Documents and vice versa (the "DISCHARGED
RIGHTS") will be cancelled; and
(iv) the New Bank and the existing Parties will acquire rights
against each other under the Finance Document which differ
from the discharged rights only insofar as they are
exercisable by or against the New Bank instead of the Existing
Bank,
on the date of execution of the Substitution Certificate by the
Facility Agent or, if later, the date specified in the Substitution
Certificate and in each case, if the provisions of this Clause 30.4
are complied with.
The discharged obligations shall not include any obligation under
Clauses 13 and 15 in respect of payments made prior to the effective
date of such Substitution Certificate.
30.5 REFERENCE BANKS The Facility Agent may (subject to Services giving its
consent thereto, such consent not to be unreasonably withheld) nominate
additional Banks or Affiliates thereof to become Reference Banks and such Banks
or Affiliates shall become Reference Banks upon their indicating to the Facility
Agent that they are prepared to act as such. The Facility Agent will give
Services written notice of such Banks or Affiliates having become Reference
Banks as soon as practical thereafter. If a Reference
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Bank (or the Bank of which a Reference Bank is an Affiliate, in the case of any
Reference Bank which is not itself a Bank) transfers the whole of its rights and
obligations under this Agreement as a Bank or ceases to be one of the Banks, the
Facility Agent, subject to agreement by Services (such Agreement not to be
unreasonably withheld or delayed) will appoint another Bank to replace such Bank
or Affiliate as a Reference Bank.
30.6 CHANGE OF FACILITY OFFICE Each Bank shall participate in this Agreement
through its Facility Office(s) (which in the case of a non-Treaty Bank must be
in the United Kingdom), but any Bank may change its Facility Office with respect
to any Utilisation from time to time, on giving not less than four Business Days
prior notice to the Facility Agent, to (a) any other location in the United
Kingdom in the case of a non-Treaty Bank or (b) if it is a Treaty Bank to any
other location in the same jurisdiction or to any other location provided (in
respect of any Bank other than ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners, L.P.) it does not
thereby cease to be a Recognised Bank (including as referred to in the
definition thereof in Clause 1.1 the filing of all appropriate applications and
forms).
30.7 TAXES AND INCREASED COSTS
(a) Subject as provided in paragraph (b) below, if any assignment or
transfer of or with respect to all or any part of the rights or
obligations of a Bank under this Agreement pursuant to Clause 30.3 or
30.4 or any change in Facility Office pursuant to Clause 30.6 is made
which results (or would but for this Clause result) at the time
thereof in amounts becoming payable under Clauses 13 or 15.1, then the
assignee, transferee, New Bank or Bank acting through its new Facility
Office shall be entitled to receive such amounts only to the extent
that the assignor, transferor, Existing Bank or Bank acting through
its original Facility Office would have been so entitled had there
been no such assignment, transfer or change in Facility Office. No
such assignment, transfer or change in Facility Office shall be made
if the assignee or transferee or such Bank (in the case of a change in
Facility Office) would be entitled immediately afterwards to give
notice under Clause 16.
(b) The provisions of the first sentence of paragraph (a) above shall not
apply (i) in relation to any assignment or transfer of or with respect
to the rights or obligations of the Original Banks, provided that the
same is effected by the Original Banks prior to the Syndication Date,
or (ii) with respect to any novation from ▇▇▇▇▇▇▇ Sachs Credit
Partners, L.P. to ▇▇▇▇▇▇▇ ▇▇▇▇▇ International Bank, or (iii) with
respect to any novation by ▇▇▇▇▇▇▇ Sachs Credit Partners, L.P. to the
extent that they would not have applied had such novation been
effected by ▇▇▇▇▇▇▇ ▇▇▇▇▇ International Bank.
However, the Original Banks (except with respect to novations by
▇▇▇▇▇▇▇ Sachs Credit Partners, L.P. to ▇▇▇▇▇▇▇ ▇▇▇▇▇ International
Bank and except, with respect to other novations by ▇▇▇▇▇▇▇ Sachs
Credit Partners, L.P., that the obligations of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit
Partners, L.P. under this paragraph as it applies thereto shall be
limited to those which would apply if such novation were made by
▇▇▇▇▇▇▇ Sachs International Bank) will use reasonable endeavours (to
the extent not materially prejudicial to their ability successfully to
syndicate the Facilities prior to the Syndication Date) to avoid
making any assignment or transfer to or in favour of any assignee,
transferee or New Bank having an
-126-
entitlement at the time of such assignment, transfer or novation to
receive amounts payable under Clauses 15 or 16.1 in amounts greater
than would have been payable by the Obligors hereunder at that time in
the absence of such assignment or transfer.
30.8 TIMING Each Bank undertakes to the Facility Agent that it will not effect
any assignment or transfer pursuant to Clause 30.3 and will not enter into any
Substitution Certificate pursuant to Clause 30.4 on or within five Business Days
before the due date for any payment to be made under any of the Finance
Documents where it would have the effect of altering the amount to be paid by
the Facility Agent to such Bank consequent on the receipt by the Facility Agent
of such payment under the Finance Documents provided that this Clause 30.8 shall
not apply to any Substitution Certificate entered into between ▇▇▇▇▇▇▇ ▇▇▇▇▇
International Bank and ▇▇▇▇▇▇▇ Sachs Credit Partners, L.P.
30.9 RESTRICTION Notwithstanding anything to the contrary contained in this
Agreement, unless otherwise agreed by the Majority Banks and Services in any
particular case (which agreement is hereby given in respect of any novations of
any Utilisations and/or Commitments between ▇▇▇▇▇▇▇ ▇▇▇▇▇ International Bank and
▇▇▇▇▇▇▇ Sachs Credit Partners, L.P. and vice versa), each Bank may only effect
an assignment or transfer of, or substitution with respect to, outstanding
Utilisations and/or Commitments where the assignment, transfer or substitution
relates to all Utilisations in which it participates and/or all its Commitments
pro rata as between such Utilisations and/or such Commitments.
30.10 TREATY BANKS Notwithstanding anything to the contrary contained in
this Agreement, no assignment, transfer or novation may be made (a) to a Treaty
Bank on or prior to the Syndication Date or as part of the primary syndication
of the Facilities or (b) to an Affiliate which is a Treaty Bank (save
with the consent of Services).
31. SET-OFF AND REDISTRIBUTION
31.1 SET-OFF Each Bank may (but shall not be obliged to) whilst any Default
shall be continuing set off against any obligations of any Obligor due and
payable by it to or for the account of such Bank under this Agreement and not
paid on the due date any moneys held by such Bank for the account of such
Obligor at any office of such Bank anywhere and in any currency, whether or not
matured. Such Bank may effect such currency exchanges as are appropriate to
implement the set-off and any usual charges and all applicable Taxes in relation
to such currency exchanges shall be paid by such Obligor. Any Bank which has
set off shall give prompt notice of that fact to the relevant Obligor.
31.2 REDISTRIBUTION
(a) If at any time the proportion which any Bank (the "RECEIVING BANK")
has received or recovered (whether by set-off or otherwise) on account
of any sum due from any Obligor under this Agreement is greater (the
amount of the excess being herein referred to as the "EXCESS AMOUNT")
that the proportion received or recovered by the Bank receiving or
recovering the smallest proportion (which shall include a nil receipt)
in relation to the sum then due to the latter Bank from the relevant
Obligor under this Agreement, then the receiving Bank shall promptly
notify the Facility Agent thereof and:
-127-
(i) the receiving Bank shall promptly and in any event within ten
days of receipt or recovery of the excess amount pay to the
Facility Agent an amount equal to the excess amount;
(ii) the excess amount shall be treated as having been paid to or
recovered by the receiving Bank for the account of the
Facility Agent for payment to the Banks as provided in
paragraph (iii) below, and the obligations of the relevant
Borrower and the Guarantors to the receiving Bank shall only
be reduced or discharged by the receipt or recovery by the
receiving Bank of such excess amount to the extent of the
receiving Bank's entitlement to payment by the Facility Agent
pursuant to paragraph (iii) below; and
(iii) the parties to this Agreement shall treat such payment as if
it were a payment by the relevant Borrower or the Guarantors
to the Facility Agent on account of a sum owed to the Banks
and shall pay the same to the Banks (including the receiving
Bank) pro rata to their respective entitlements in such sum;
Provided that where a receiving Bank is subsequently required to repay
to any Obligor any amount received or recovered by it and dealt with
under paragraphs (i), (ii) and (iii) above, each Bank shall promptly
repay to the Facility Agent for the receiving Bank the portion of such
amount distributed to it, together with interest on it at a rate
sufficient to reimburse the receiving Bank for any interest which it
has been required to pay to such Obligor in respect of such portion of
such amount.
(b) Where a receiving Bank has recovered any amount as a consequence of
the satisfaction or enforcement of a judgement obtained in any legal
action or proceedings to which it is a party, this Clause 31.2 shall
not apply so as to benefit any other Bank which (being entitled so to
do) did not join with the receiving Bank in such action or
proceedings, unless the receiving Bank did not give prior notice of
its involvement in such action or proceedings to the Facility Agent
for disclosure to the other Banks.
(c) Each Bank shall promptly give notice to the Facility Agent of:
(i) the institution by such Bank of any legal action or
proceedings under this Agreement or in connection with this
Agreement prior to such institution; and
(ii) the receipt or recovery by such Bank or any amount received or
recovered by it otherwise than through the Facility Agent.
Upon receipt of any such notice, the Facility Agent will as soon as
practicable thereafter notify all the other Banks.
31.3 LOSS SHARING Without prejudice to the foregoing provisions of this Clause
31, if it transpires for any reason that after enforcement in full of the
Finance Documents any of the liabilities of any of the Obligors under the
Finance Documents remain undischarged and for any reason any resulting losses
are
-128-
not being borne by the Banks pro rata to the amount which their respective
aggregate Commitments bore to the aggregate of all the Commitments on the date
on which an Enforcement Event occurred, the Banks shall make such payments inter
se as shall be required to ensure that after taking into account such payments
such losses are borne by the Banks pro rata. For this purpose, "ENFORCEMENT
EVENT" means the Facility Agent first exercising any of its rights under Clause
24.2(b), (d) or (e) or, having exercised its rights under Clause 24.2(c), first
making demand with respect to some or all of the Advances. Any assignment,
transfer or substitution by a Bank pursuant to Clause 30 (whether occurring
before or after an Enforcement Event) shall also be effective to assign,
transfer or effect a substitution pursuant to that Clause with respect to the
rights of such Bank under this Clause 31.3.
32. GOVERNING LAW AND JURISDICTION
32.1 GOVERNING LAW This Agreement shall be governed by and construed in
accordance with English law.
32.2 COURTS OF ENGLAND
(a) For the benefit of each of the Finance Parties, each Obligor hereby
irrevocably agrees that the High Courts of Justice in London, and all
appellate courts therefrom have jurisdiction to settle any disputes
which may arise out of or in connection with any of the Finance
Documents and that any suit, action or proceedings (together
"PROCEEDINGS") in connection with any Finance Document may be brought
in the High Courts of Justice in London and all appellate courts
therefrom and accordingly submits to the jurisdiction of the High
Courts of Justice in London and all appellate courts therefrom.
(b) Each Obligor hereby irrevocably and unconditionally agrees that
nothing in any of the Finance Documents shall affect the right to
serve process in any manner permitted by law.
32.3 NO LIMITATION Nothing in this Clause 32 shall limit the right of any of
the Finance Parties to take Proceedings against any Obligor in any other court
of competent jurisdiction, nor shall the taking of Proceedings in one or more
jurisdiction preclude the taking of Proceedings in any other jurisdiction,
whether concurrently or not.
33. CONFIDENTIALITY
Each Finance Party hereby severally undertakes to each Obligor that it will
keep confidential and that it will not make use of for any purposes
(otherwise than for the purposes of the Finance Documents and otherwise
than in the context of an addition to its general experience, knowledge or
expertise), any of the Transaction Documents or other documents relating to
this Agreement and all of the information distributed on behalf of the
Obligors or any of them during syndication or contained in, received under
or obtained in the course of discussions relating to the Information
Memorandum and/or the Transaction Documents, other than any such document
or information which has become generally available to banks through no
breach by it of this Clause, provided that each Finance Party shall be
entitled to make disclosure of the same:
-129-
(a) to its auditors, accountants, legal counsel and tax advisers and to
any other professional advisers appointed to act in connection with
the administration of the Finance Documents or the enforcement of, or
realisation of any security provided under, any of the Finance
Documents;
(b) (whether or not the relevant assignment, transfer, substitution,
sub-participation or another arrangement is made) to any proposed
assignee, transferee or substitute of, or proposed party to any
proposed sub-participation (or party to any actual sub-participation)
or other arrangement with, any Bank permitted pursuant to this
Agreement, provided that before any such disclosure such assignee,
transferee, substitute or other party expressly undertakes to Services
and the Facility Agent in writing to be bound by this Clause 33
irrespective of whether such assignment, transfer, substitution or
other arrangement shall proceed;
(c) to any other third party where the relevant Obligor has previously
agreed in writing that disclosure may be made to that third party;
(d) to any banking or other regulatory or examining authorities (whether
governmental or otherwise) where such disclosure is requested by them;
(e) pursuant to subpoena or other legal process, or in connection with any
action, suit or proceeding relating to any of the Finance Documents;
(f) pursuant to any law or regulation having the force of law; and
(g) to PacifiCorp and to any member of the Services Group.
The provisions of this Clause 33 shall supersede any undertakings with respect
to confidentiality previously given by any Finance Party in favour of any
Obligor.
34. MISCELLANEOUS
34.1 SEVERABILITY
(a) If any provision of any Finance Document is prohibited or
unenforceable in any jurisdiction, such prohibition or
unenforceability shall not invalidate the remaining provisions of such
Finance Document or affect the validity or enforceability of such
provision in any other jurisdiction.
(b) If any of the undertakings given in Clause 21.6(a) (DISTRIBUTIONS,
SUBORDINATED DEBT AND SHARE CAPITAL), 21.6(e) (SHARE CAPITAL AND DEBT)
or 21.10(g) (CONSTITUTIONAL DOCUMENTS) are not enforceable against any
Obligor the obligation on each other Obligor to procure compliance
with such undertaking shall remain enforceable.
-130-
34.2 CERTIFICATIONS Where any person gives any certificates on behalf of any of
the parties to the Finance Documents pursuant to any provision hereof and such
certificate proves to be incorrect, the individual shall incur no personal
liability in consequence of such certificate being so incorrect save where such
individual acted fraudulently, recklessly or negligently in giving such
certificate (in which case any liability of such individual shall be determined
in accordance with applicable law).
34.3 ACCOUNTS AS EVIDENCE Accounts maintained by the Facility Agent or each
Bank in connection herewith shall constitute prima facie evidence of sums owing
to such Bank under this Agreement.
34.4 COUNTERPARTS This Agreement may be executed in any number of counterparts
and all of such counterparts taken together shall be deemed to constitute one
and the same instrument.
IN WITNESS WHEREOF the parties to this Agreement have caused this Agreement to
be duly executed on the date first written above.
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THE FIRST SCHEDULE
PART I
BORROWERS
PACIFICORP
ACQUISITIONS
State of Incorporation: England and Wales
Registered Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Registered No.: 3386442
Address for Notices: ▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇
Attention: W.E. ▇▇▇▇▇▇▇▇▇, Vice President and Treasurer
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
-132-
PART II
GUARANTORS
PACIFICORP SERVICES LIMITED
State of Incorporation: England and Wales
Registered Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Registered No.: 3366016
Address for Notices: ▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇
Attention: W.E. ▇▇▇▇▇▇▇▇▇, Vice President and Treasurer
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
PACIFICORP FINANCE
(UK) LIMITED
State of Incorporation: England and Wales
Registered Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Registered No.: 3365681
Address for Notices: ▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇
Attention: W.E. ▇▇▇▇▇▇▇▇▇, Vice President and Treasurer
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
PACIFICORP ACQUISITIONS
State of Incorporation: England and Wales
Registered Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Registered No.: 3386442
Address for Notices: ▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇
Attention: W.E. ▇▇▇▇▇▇▇▇▇, Vice President and Treasurer
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
-133-
PART III
FACILITY AGENT
Citibank International plc
▇.▇. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Address for notices: as above
Attention: Loans Agency
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
SECURITY AGENT
Citibank, N.A.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Address for notices: as above
Attention: Loans Agency
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
-134-
THE SECOND SCHEDULE
BANKS' COMMITMENTS AND NOTICE DETAILS
BANK, FACILITY OFFICE AND NOTICE ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ 2
DETAILS COMMITMENT COMMITMENT COMMITMENT
L L L
CITIBANK, N.A. 606,666,668 151,666,668 150,000,000
▇.▇. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Address for notices:
as above
Attention: Loans Administration
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT 606,666,666 151,666,666 150,000,000
PARTNERS, L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇/
▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST 606,666,666 151,666,666 150,000,000
COMPANY OF NEW YORK
60 Victoria Embankment
▇▇▇▇▇▇ ▇▇▇▇ OJP
Address for notices:
as above
Attention: Global Credit-Middle
Office
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
----------------------------------------------------------
Total 1,820,000,000 455,000,000 450,000,000
-135-
THE THIRD SCHEDULE
FORMS OF REQUEST
To: [
]
Attention: [ ]
From: [Services or Borrower] Date: [ ]
REQUEST (ADVANCE)
FACILITY AGREEMENT DATED [ ], 1998
Dear Sirs,
[On behalf of] [As] the Borrower named below, we hereby give you notice pursuant
to Clause 5.1 of the above Facility Agreement that we require an Advance to be
made to the Borrower named below under the Facility Agreement, as follows:
(a) Borrower: [ ]
(b) Utilisation Date: [ ]
(c) Requested Amount: [Currency ] [ ]
(d) Interest Period: [ ]
(e) Tranche Designation: [ ]
(f) Payment Instructions: [ ]/Beneficiary Details [ ]
Terms used in this Request and defined in the Facility Agreement have the same
meaning in this Request as in the Facility Agreement.
We confirm that all of the conditions precedent to the obligations of the Banks
with respect to the making of the proposed Advance provided for in Clause 4 of
the Facility Agreement are satisfied or have been waived pursuant to a Waiver
Letter.
Yours faithfully
[Authorised Signatory]
[for and on behalf of]
[ ]
-136-
THE FOURTH SCHEDULE
SUBSTITUTION CERTIFICATE
To: [ ] as Facility Agent
From: [The Existing Bank] and [The New Bank] Date: [ ]
PACIFICORP ACQUISITIONS L[ ]
TERM LOAN FACILITY AND REVOLVING CREDIT FACILITY
DATED [ ], 1998 (THE "CREDIT AGREEMENT")
Reference to Clauses are to Clauses of the Credit Agreement.
We refer to Clause 30.4 (Procedure for Substitution).
1. We [ ] (the "EXISTING BANK") and [ ] (the "NEW
BANK") agree to the Existing Bank and the New Bank novating all the
Existing Bank's rights and obligations referred to in the Schedule in
accordance with Clause 30.4 (Procedure for Substitution).
2. From the date specified in paragraph 3 below, the New Bank becomes party to
the Credit Agreement as a Bank and a party to the Intercreditor Agreement
as a Senior Creditor, with the rights and obligations referred to in the
Schedule below.
3. The specified date for the purposes of Clause 30.4(c) is [date of
novation].
4. The Facility Office and address for notices of the New Bank for the
purposes of Clause 29.1 (Address) are set out in the Schedule.
[5. The New Bank undertakes to counter-indemnify the Existing Bank for the New
Bank's pro rata share of all amounts payable by the Existing Bank (whether
pursuant to Clause 5.6 or otherwise) in respect of any outstanding
Documentary Credit.]*
6. The Existing Bank and the New Bank acknowledge and agree that Clause
30.3(d), (e), (f) and (g) apply to this Substitution Certificate and the
novation contemplated hereby as if set out in full herein, mutatis
mutandis.
7. The New Bank confirms that it is a Recognised Bank and the Existing Bank
confirms that any necessary consent of any Obligor required to be obtained
from Services in connection herewith has been obtained.
8. If it is a Treaty Bank, the New Bank hereby confirms that it has made the
appropriate application as referred to in paragraph (c) of the definition
of Recognised Bank.
9. This Substitution Certificate is governed by English law.
__________________
* Not required for transfers between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P. and
▇▇▇▇▇▇▇ Sachs International Bank
-137-
THE SCHEDULE
RIGHTS AND OBLIGATIONS TO BE NOVATED
[Details of the rights and obligations of the Existing Bank to be novated].
[NEW BANK]
[Facility Office Address for notices]
[Existing Bank] [New Bank]
By: By:
Date: Date:
[ ]
for and on behalf of itself and as Facility Agent and on behalf of each of the
Obligors
By:
Date:
-138-
THE FIFTH SCHEDULE
CALCULATION OF ADDITIONAL COST
(1) The Additional Cost relative to each Advance where (and to the extent that)
Banks making such Advance are subject to the Mandatory Liquid Asset
requirements of the Bank of England, will be, subject as hereinafter
provided, for the Interest Period relating to such Advance (or, if longer
than three months, for each consecutive period of three months within such
Interest Period and for any balance of such Interest Period) (which
Interest Period if not longer than three months and each other such period
is herein referred to as a "RELEVANT PERIOD") the percentage rate (or the
arithmetic average of the percentage rates where there is more than one
Reference Bank supplying the same) supplied by the Reference Banks (or such
of them as supply it to the Facility Agent) arrived at by applying the
following formula in relation to each Reference Bank:
Additional Cost = BY + L(Y-X) + S(Y-Z) % PER ANNUM
--------------------------------
100-(B + S)
Where:
B = The percentage of such Reference Bank's eligible liabilities then
required to be held on a non-interest-bearing deposit account
with the Bank of England pursuant to the cash ratio requirements
of the Bank of England.
Y = The rate at which Sterling deposits in an amount approximately
equal to the principal amount of such Advance are offered by such
Reference Bank to leading banks in the London Interbank Market at
or about 11.00 a.m. on the Utilisation Date relative to such
Advance (or the first day of the relevant Interest Period) for a
period comparable to the Relevant Period in relation to such
Advance.
L = The average percentage of eligible liabilities which the Bank of
England from time to time requires each Reference Bank to
maintain as secured money with members of the London Discount
Market Association and/or as secured call money with those money
brokers and gilt-edged market makers recognised by the Bank of
England.
X = The rate at which secured Sterling deposits in an amount
approximately equal to the principal amount of such Advance may
be placed by such Reference Bank with members of the London
Discount Market Association and/or as secured call money with
money brokers and gilt-edged market makers at or about 11.00 a.m.
on such Utilisation Date (or the first day of the relevant
Interest Period) for a period comparable to the Relevant Period
in relation to such Advance.
S = The percentage of such Reference Bank's eligible liabilities then
required to be placed as a special deposit with the Bank of
England.
Z = The percentage interest rate per annum allowed by the Bank of
England on special deposits.
For the purposes of this paragraph "ELIGIBLE LIABILITIES" and "SPECIAL
DEPOSITS" shall bear the meanings ascribed to them from time to time by the
Bank of England.
-139-
(2) In the application of the above formula, B, Y, L, X, S and Z will be
included in the formula as figures and not as percentages, e.g. if B = 0.5%
and Y = 15%, BY will be calculated as 0.5 x 15 and not as 0.5% x 15%.
(3) The Additional Cost computed by the Facility Agent in accordance with this
schedule shall be rounded upward, if necessary, to four decimal places.
(4) The calculation in respect of the Additional Cost for each Advance
denominated in Sterling will be made by the Facility Agent on the first day
of each Relevant Period.
(5) Calculations will be made on the basis of a year of 365 days and the actual
number of days elapsed.
(6) If no Reference Bank furnishes the appropriate information for the purposes
of this Schedule, the Additional Cost shall be determined by the Facility
Agent on the basis of such other information and quotations as the Facility
Agent shall reasonably determine to be appropriate.
(7) In the event of a change in circumstances (including the imposition of
alternative or additional official requirements, excluding capital adequacy
requirements) which renders the above formula inappropriate in the
reasonable opinion of the Facility Agent, the Facility Agent shall promptly
notify Services and the Banks thereof and (after consultation with the
Reference Banks and Services) shall notify the Borrowers of the manner in
which the Additional Cost shall thereafter be determined (which manner
shall be determined in a bona fide manner and provide a fair assessment of
the Additional Cost) and the Obligors and the Banks shall be bound thereby.
-140-
THE SIXTH SCHEDULE
PART I
BORROWER ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT is dated the [ ] day of [ ] and
made BETWEEN [ ] (the "ADDITIONAL BORROWER") (1),
PacifiCorp Services Limited ("SERVICES" and a "GUARANTOR") (2), PacifiCorp
Acquisitions ("PA" and an "EXISTING BORROWER" and a "GUARANTOR") (3), PacifiCorp
Finance (UK) Limited ("FINANCE" and a "GUARANTOR") (4), [ ]
(each also an "EXISTING BORROWER") (5), and [ ] in its
capacity as Facility Agent under the Facility Agreement referred to in Recital
(A) hereof and on behalf of the Arrangers, the Banks, the LC Bank and the
Security Agent parties to and defined as such in such Facility Agreement and on
behalf of each of the parties to the Intercreditor Agreement other than the
Obligors (6).
WHEREAS:
(A) By and upon and subject to the terms of a facility agreement (the "FACILITY
AGREEMENT", which term includes any supplements and amendments thereto
which may at any time be made in relation thereto and also any Substitution
Certificates, Borrower Accession Agreements and Guarantor Accession
Agreements) dated [ ] made between Services and PA as Borrowers and
Guarantors as therein defined, the Arrangers, the several banks parties
thereto as Banks, Citibank International Plc as Facility Agent and
Citibank, N.A. as Security Agent, term loan facilities and a revolving
credit facility were made available to certain of the Borrowers (as defined
in the Facility Agreement).
(B) Each of the entities expressed to be party hereto (other than the
Additional Borrower), whether directly or through signature hereof by the
Facility Agent or Services on its behalf, is a party to the Facility
Agreement and the Intercreditor Agreement either by having been an original
party thereto or pursuant to a Borrower Accession Agreement, a Guarantor
Accession Agreement or a Substitution Certificate to which it is party or
otherwise.
(C) The Additional Borrower wishes to become party to the Facility Agreement as
a Borrower pursuant to the procedure established in Clause 19 of the
Facility Agreement and a party to the Intercreditor Agreement pursuant to
the procedure established in [Clause 24 of the Intercreditor Agreement], by
the execution of this Borrower Accession Agreement.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
Terms used herein which are defined in or to which a meaning or
construction is assigned by or in the Facility Agreement shall, unless
otherwise defined herein, have the same meaning and construction herein as
therein.
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2. AGREEMENTS, CONFIRMATIONS AND REPRESENTATIONS
(a) The Additional Borrower hereby:
(i) confirms that it has received a copy of the Facility Agreement
and the Intercreditor Agreement, together with such other
documents and information as it has required in connection
herewith and therewith;
(ii) agrees to become, with effect from the date of this Borrower
Accession Agreement a Borrower under the Facility Agreement
and an Obligor under the Intercreditor Agreement and agrees to
be bound in such capacity with effect from such date by the
terms of the Facility Agreement and the Intercreditor
Agreement and undertakes accordingly to perform its
obligations as a Borrower or, as the case may be, Obligor
thereunder;
(iii) confirms the accuracy of the information set out under its
name at the end of this Borrower Accession Agreement;
(iv) represents and warrants as a Borrower to the Arranger, the
Bank, the Security Agent and the Facility Agent in the terms
of Clause 20.1 (other than paragraphs (g)(iii), (k), (l),
(n)(ii) and (p) and (r)), of the Facility Agreement by
reference to the facts and circumstances existing at the date
hereof; and
(v) confirms that it has not relied on any of the Finance Parties,
to assess or inform it as to the legality, validity, effect or
enforceability of the Facility Agreement or the Intercreditor
Agreement or any other document referred to therein or the
accuracy or completeness of any such information as is
referred to in paragraph (i) above or the creditworthiness,
affairs, condition or status of any of the parties to the
Facility Agreement or the Intercreditor Agreement, or any such
other document.
(b) The Existing Borrower(s), the Guarantors and the Finance Parties and
the parties to the Intercreditor Agreement hereby agree amongst
themselves and with the Additional Borrower that the Additional
Borrower shall become party to the Facility Agreement and the
Intercreditor Agreement with effect from the date of this Borrower
Accession Agreement.
3. LAW
This Borrower Accession Agreement shall be governed by and construed in
accordance with English law.
-142-
IN WITNESS WHEREOF the parties hereto have caused this Borrower Accession
Agreement to be duly executed on the date first written above.
ADDITIONAL BORROWER:
SERVICES:
PACIFICORP SERVICES LIMITED
By:
for itself and as agent for and on
behalf of the Existing Borrowers and
the Guarantors
By:
FACILITY AGENT:
[ ]
for itself and as Facility Agent and
for and on behalf of the Arrangers,
the Banks, the LC Bank and the
Security Agent and all parties to the
Intercreditor Agreement other than
the Obligors
By:
-143-
PART II
GUARANTOR ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT is dated the day of , and made
BETWEEN:
(1) [ ] (the "ADDITIONAL GUARANTOR");
(2) PACIFICORP SERVICES LIMITED ("SERVICES" and an "EXISTING GUARANTOR");
(3) PACIFICORP ACQUISITIONS ("PA" and an "EXISTING GUARANTOR" and a
"BORROWER");
(4) PACIFICORP FINANCE (UK) LIMITED ("FINANCE" and "EXISTING GUARANTOR");
(5) [ ] (each also an "EXISTING GUARANTOR"); and
(6) [ ] in its capacity as Facility Agent under
the Facility Agreement referred to in Recital (A) hereof and on behalf of
the Arrangers, the Banks, the LC Bank and the Security Agent parties to and
defined as such in such Facility Agreement and on behalf of each of the
parties to the Intercreditor Agreement other than the Obligors.
WHEREAS:
(A) By and upon and subject to the terms of a facility agreement (the "FACILITY
AGREEMENT", which term includes any supplements and amendments thereto
which may at any time be made in relation thereto and also any Substitution
Certificates, Borrower Accession Agreements and Guarantor Accession
Agreements) dated [ ], made between Services and PA as
Borrowers and Guarantors as therein defined, the Arrangers, the several
banks parties thereto as Banks, Citibank International Plc as Facility
Agent and Citibank, N.A. as Security Agent, term loan facilities and a
revolving credit facility were made available to certain of the Borrowers
(as defined in the Facility Agreement).
(B) Each of the entities expressed to be party hereto (other than the
Additional Guarantor), whether directly or through signature hereof by the
Facility Agent or Services on its behalf, is a party to the Facility
Agreement and the Intercreditor Agreement either by having been an original
party thereto or pursuant to a Borrower Accession Agreement, a Guarantor
Accession Agreement or a Substitution Certificate to which it is party or
otherwise.
(C) The Additional Guarantor wishes to become party to the Facility Agreement
as a Guarantor pursuant to the procedure established in Clause 19 of the
Facility Agreement and a party to the Intercreditor Agreement pursuant to
the procedure established in [Clause 24 of the Intercreditor Agreement,] by
the execution of this Guarantor Accession Agreement.
NOW IT IS HEREBY AGREED as follows:
-144-
1. DEFINITIONS
Terms used herein which are defined in or to which a meaning or
construction is assigned by or in the Facility Agreement shall, unless
otherwise defined herein, have the same meaning and construction herein as
therein.
2. AGREEMENTS, CONFIRMATIONS AND REPRESENTATIONS
(a) The Additional Guarantor hereby:
(i) confirms that it has received a copy of the Facility Agreement
and the Intercreditor Agreement, together with such other
documents and information as it has required in connection
herewith and therewith;
(ii) agrees to become, with effect from the date of this Guarantor
Accession Agreement a Guarantor under the Facility Agreement
and an Obligor under the Intercreditor Agreement and agrees to
be bound in such capacity with effect from such date by the
terms of the Facility Agreement and the Intercreditor
Agreement and undertakes accordingly to perform its
obligations as a Guarantor or, as the case may be, Obligor
thereunder;
(iii) confirms the accuracy of the information set out under its
name at the end of this Guarantor Accession Agreement;
(iv) represents and warrants as a Guarantor to the Arranger, the
Banks, the Security Agent and the Facility Agent in the terms
of Clause 20.1 (other than paragraphs (g)(iii), (k), (l),
(n)(ii) and (p) and (r)) of the Facility Agreement by
reference to the facts and circumstances existing at the date
hereof; and
(v) confirms that it has not relied on any of the Finance Parties,
to assess or inform it as to the legality, validity, effect or
enforceability of the Facility Agreement or the Intercreditor
Agreement or any other document referred to therein or the
accuracy or completeness of any such information as is
referred to in paragraph (i) above or the creditworthiness,
affairs, condition or status of any of the parties to the
Facility Agreement or the Intercreditor Agreement, or any such
other document.
(b) The Existing Borrower(s), the Guarantors and the Finance Parties and
the parties to the Intercreditor Agreement hereby agree amongst
themselves and with the Additional Guarantor that the Additional
Guarantor shall become party to the Facility Agreement and the
Intercreditor Agreement with effect from the date of this Guarantor
Accession Agreement.
3. LAW
This Guarantor Accession Agreement shall be governed by and construed in
accordance with English law.
IN WITNESS WHEREOF the parties hereto have cause this Guarantor Accession
Agreement to be duly executed on the date first written above.
-145-
ADDITIONAL GUARANTOR:
SERVICES:
PACIFICORP SERVICES LIMITED
for itself and as agent for and on
behalf of the Existing Guarantors and
the Borrowers
By:
FACILITY AGENT
[ ]
for itself and as Facility Agent and
for and on behalf of the Arrangers,
the Banks, the LC Bank and the Security Agent
and all parties to the Intercreditor Agreement
other than the Obligors.
By:
-146-
THE SEVENTH SCHEDULE
PART I
DOCUMENTARY CONDITIONS PRECEDENT
1. A certified copy of the memorandum and articles of association (if any),
statutes or by-laws and of each other constitutional or governing document
of each Obligor.
2. The Fee Letter(s) referred to in Clause 27.2 duly executed by PA.
3. At least two originals of (a) the Debenture, duly executed by Services,
Finance and PA; (b) the Intercreditor Agreement duly executed by Services,
Finance and PA; and (c) the Powercoal Intercreditor Agreement duly executed
by Services, Finance, PA and Powercoal.
4. A certified copy of a resolution of the Directors (or of a duly constituted
and empowered committee of the directors) of each Obligor approving the
transactions and matters contemplated by this Agreement and the other
Finance Documents to which it is a party and authorising an Authorised
Signatory of such Obligor to execute respectively on their behalf all the
Finance Documents to which they are a party and in the case of documents to
be executed under seal or as a deed, authorising the execution thereof as a
deed or the affixation of the seal and the witnessing thereof by the
appropriate officers in accordance with the relevant Obligor's articles of
association, statutes, by-laws or other constitutional documents.
5. A specimen, of the signature of each person (each being an Authorised
Signatory) authorised to execute any of the Finance Documents on behalf of
any Obligor and/or sign all notices, certificates and other documents or
communications to be delivered by such Obligor thereunder.
6. An opinion, addressed to the Facility Agent and the Banks, of English legal
advisers to the Facility Agent and the Banks as to such matters relating to
the Obligors and their obligations under the Finance Documents as the
Facility Agent may reasonably require.
7. The Offer Document, reflecting in all material respects the text of the
Press Release.
8. The Press Release.
9. The Structure Memorandum.
10. The letter referred to in Clause 4.1(d).
11. Model.
12. Borrowings List.
-147-
PART II
ADDITIONAL BORROWER/GUARANTOR DOCUMENTARY CONDITIONS PRECEDENT
1. Each of the documents referred to in paragraphs 1, 4, 5 and 6 (and, in the
case of a company incorporated outside England & Wales such opinion of
overseas counsel as the Facility Agent may reasonably require) of Part I of
this Schedule relating to the Additional Borrower or Additional Guarantor,
in each case in form and substance reasonably satisfactory to the Facility
Agent.
PART III
ADDITIONAL GUARANTORS AND CHARGORS
The Energy Group PLC
Rollalong Limited
Rollalong Hire Limited
Eastern Group PLC
Peabody Investments Inc.
-148-
THE EIGHTH SCHEDULE
TERMS OF BANKS' INDEMNITY TO LC BANK
1. Each Bank ("TRANCHE 2 BANK") having a Tranche 2 Commitment or which had a
Tranche 2 Commitment which it has assigned, transferred or novated without
the written consent of the LC Bank will pay any amount demanded of it by
the LC Bank pursuant to Clause 5.6 on the later of the date that the LC
Bank has itself to make payment under the Documentary Credit (as notified
by the LC Bank to such Tranche 2 Bank in the demand) and 2 Business Days
after receipt by such Tranche 2 Bank of such demand.
2. Where a Tranche 2 Bank makes a payment pursuant to paragraph 1 after the
date on which the LC Bank makes the relevant payment under the Documentary
Credit in question, such Tranche 2 Bank shall pay on demand to the LC Bank
its pro rata share (as calculated in Clause 5.6) of such amount as the LC
Bank certifies (such certification to be conclusive in the absence of
manifest error) as necessary to compensate it for funding the amount
demanded in the interim.
3. No assurance, security or payment avoided under any law relating to
bankruptcy, liquidation, insolvency, reconstruction or reorganisation or
any similar laws and no release settlement, arrangement or discharge which
may have been given or made on the basis of any such assurance, security or
payment shall prejudice or affect the right of the LC Bank to recover from
each of the Tranche 2 Bank to the full extent of their obligations under
Clause 5.6 and this Eighth Schedule.
4. The obligations of each Tranche 2 Bank under Clause 5.6 and this Eighth
Schedule shall not be impaired, affected or revoked by any act, omission,
transaction, limitation, matter, thing or circumstance whatsoever which but
for this provision might operate to release or exonerate such Tranche 2
Bank from all or any part of its obligations under Clause 5.6 and this
Eighth Schedule or reduce, impair or affect such obligations or cause all
or any part of such obligations to be
-149-
irrevocable from or unenforceable against any Obligor or to discharge,
reduce, affect or impair any of such obligations, including without
limitation:
(a) any time, waiver or indulgence granted to any Obligor or any other
person or the forbearance of the LC Bank in enforcing the obligations
of any Obligor or any other person under this Agreement or any of the
other Finance Document or in respect of any other guarantee, security,
obligation, right or remedy;
(b) the recovery of any judgement against any Obligor or any other person
or any action to enforce the same;
(c) the taking of any other security from any Obligor or any other person
or the failure, refusal or neglect to take, perfect or enforce, any
rights, remedies or securities from or against any Obligor or any
other person or all or any part of the security constituted by any of
the Finance Documents;
(d) any alteration in the constitution of any Obligor or any defect in or
irregular exercise of the borrowing or other powers of any Obligor or
any other person or any legal limitation, disability, incapacity or
other circumstance relating to any Obligor or any other person whether
arising in relation to this Agreement, any of the other Finance
Documents or any other guarantee or security or otherwise howsoever;
(e) any amendment or supplement to or variation of any Finance Document;
(f) the insolvency, bankruptcy, liquidation, reconstruction or
reorganisation of, or analogous proceedings relating to any Obligor or
any other person or any composition or arrangement made by any of them
with the LC Bank, any Bank or any other person or any transfer or
extinction of any liabilities of or any Obligor by any law, order,
regulation, decree, court order or similar instrument; or
(g) any irregularity, unenforceability or invalidity of any obligations of
any Obligor or any other person under any security or document (to the
intent that such Tranche 2 Bank's obligations under Clause 5.6 and
this Eighth Schedule shall remain in full force as if there were no
such irregularity, unenforceability or invalidity).
5. The LC Bank shall be entitled to enforce the obligations of each Bank under
Clause 5.6 and this Eighth Schedule without making any demand on or taking
any proceedings against or filing any proof or claim in any insolvency,
winding up or liquidation of any Obligor or any other person or exhausting
any right or remedy against any Obligor or any other person or taking any
action to enforce any part of the security constituted or evidenced by any
of the Finance Documents.
6. The obligations of each Tranche 2 Bank under Clause 5.6 and this Eighth
Schedule shall be continuing obligations and shall extend to the ultimate
balance of the obligations referred to in paragraph (a) thereof. If, for
any reason, such obligations cease to be continuing obligations, the LC
Bank may open a new account with or continue any existing account with any
Obligor or other person and the liability of each Tranche 2 Bank in respect
of amounts guaranteed by it pursuant to Clause 5.6 and this Eighth Schedule
at the date of such cessation shall remain regardless of any payments in or
out of any such account.
7. The LC Bank's rights under Clause 5.6 and this Eighth Schedule shall be in
addition to and shall
-150-
be in no way prejudiced by any other rights of or security held by the LC Bank
in relation to the obligations of any Obligor. The LC Bank's rights under
Clause 5.6 and this Eighth Schedule are in addition to and are not exclusive of
those provided by law.
8. A certificate of the LC Bank as to any amount due to it from any Bank
pursuant to Clause 5.6 and this Eighth Schedule shall be conclusive in the
absence of manifest error.
-151-
THE NINTH SCHEDULE
RESERVATIONS
1. The principle that equitable remedies are remedies which may be granted or
refused at the discretion of the court.
2. The limitation of enforcement by law relating to bankruptcy, insolvency,
liquidation, reorganisation, court schemes, moratoria, administration or
other laws generally affecting the rights of creditors.
3. The time barring of claims under the Limitation Acts.
4. The possibility that following the judgment in the case of IN RE CHARGE
CARD SERVICES LIMITED (1986) it may not be possible for a bank to obtain a
charge to secure obligations owed to it over monies deposited with it.
5. The possibility that an undertaking to assume liability for or to indemnify
a person against non payment of UK stamp duty may be void.
6. Defences of set off or counterclaim and similar principles.
7. Rights and defences under the laws of any foreign jurisdictions in which
relevant obligations may have to be performed.
8. The possibility that penalty interest may not be recoverable.
9. Circumstances in which an English court would not treat as conclusive those
certificates and determinations which the Finance Documents state as to be
so treated.
10. Clause 34.1 and the corresponding clauses of other Finance Documents may
not be effective in certain circumstances depending on the nature of the
prohibition or unenforceability in question.
11. Documents may be amended orally by the parties thereto notwithstanding
provisions therein to the contrary.
12. The effectiveness of the Debenture as regards assets (if any) situated
outside England and Wales will be governed to some extent by laws other
than English.
13. The priority rules for any security created by the Finance Documents.
14. English courts do not necessarily give full effect to an indemnity for the
costs of litigation.
15. Security created by the Debenture over any shares will only constitute an
equitable charge until such shares are registered in the name of the
Security Agent or its nominee.
16. That the Security Documents do and the provisions of Clause 18.7(c) may
constitute a charge which is required to be registered under Section 395
Companies Act 1985 (as amended).
17. That the exercise by a Security Agent of powers and remedies expressed to
be given to it pursuant
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to the terms of the Debenture may be limited.
18. That security which is expressed to be fixed may only be floating.
19. The provisions of Clauses 25.1 (CURRENCY INDEMNITY) and Clause 12.3
(CURRENCY) may be superceded by a judgment, whether given in an English
court or elsewhere.
20. Where any party to the Transaction Documents is vested therein with a
discretion and may determine a matter in its opinion, English law may
require that such discretion is exercised reasonably or that such opinion
is based on reasonable grounds.
-153-
THE TENTH SCHEDULE
ENCUMBRANCES
1. A pledge over 737,195 shares in Teplarny Brno a.s. and 385,000 shares in
S.M.E. a.s. granted to Ceska Sporitelna as security agent against a CZK 3.4
Billion 7 Year Promissory Note Program for Eastern Overseas Finance Ltd.
2. The charges on cash granted by Eastern Merchant Properties Limited to The
Industrial Bank of Japan, The Bank of Nova Scotia and Societe Generale in
respect of deposits in an aggregate principal amount not exceeding
L408,087,073.
-154-
THE ELEVENTH SCHEDULE
ECONOMIC AND MONETARY UNION
1. ALTERNATIVE CURRENCIES DURING TRANSITION PERIOD If and to the extent that
any EMU legislation provides that following the commencement of the third stage
of EMU an amount denominated either in the euro or in the national currency unit
of a participating member state and payable within that participating member
state by crediting an account of the creditor can be paid by the debtor either
in the euro unit or in that national currency unit, the Borrower shall be
entitled to pay or repay any such amount either in the euro unit or in such
national currency unit.
2. ADVANCES DURING TRANSITION PERIOD If any Advance made (or to be made) on
or after the commencement of the third stage of EMU would, but for this
provision, be capable of being made either in the euro or in a national currency
unit, such Advance shall be made in the euro.
3. BUSINESS DAYS With effect on and from the commencement of the third stage
of EMU, the definition of Business Day in Clause 1.1 shall be amended by the
addition thereto (at the end) of the following:
"and, if the reference to Business Day relates to a date for the payment or
conversion of a sum denominated in the euro or in a national currency unit,
a day on which (a) such clearing or settlement system as is determined by
the Facility Agent to be suitable for clearing or settlement of the euro is
open for business and (b) banks are generally open for business in such
financial centre as is determined by the Facility Agent to be suitable for
clearing or settlement of such national currency unit.".
4. ROUNDING AND OTHER CONSEQUENTIAL CHANGES With effect on and from the
commencement of the third stage of EMU:
(a) without prejudice and in addition to any method of conversion or
rounding prescribed by any EMU legislation, each reference in this
Agreement to a fixed amount or fixed amounts in a national currency
unit to be paid to or by the Facility Agent shall be replaced by a
reference to such comparable and convenient fixed amount or fixed
amounts in the euro unit as the Facility Agent may from time to time
reasonably specify (after consultation with PA); and
(b) save as expressly provided in this Schedule, this Agreement shall be
subject to such changes of construction as the Facility Agent may from
time to time reasonably specify (after consultation with PA) to be
necessary to reflect the changeover to the euro in participating
member states.
-155-
THE TWELFTH SCHEDULE
REQUIRED DISTRIBUTIONS SCHEDULE
PACIFICORP ACQUISITIONS
(Certificate Pursuant to Clause 21.6)
I, [director of PA], refer to Clause 21.6(b) of the Facility Agreement
dated 3rd February 1998 between PacifiCorp Acquisitions (the "Company"),
Citibank International plc as facility agent and the various other parties
thereto (the "Facility Agreement"). (Terms defined in the Facility Agreement
have the same meanings herein).
During the last three quarters we have pursuant to Clause 21.6(b)(i), (ii)
and/or (iii) of the Facility Agreement paid Distributions of L/$[ ] and
we now intend paying pursuant to Clause 21.6(b)(i), (ii) and/or (iii) of the
Facility Agreement a further amount of L/$[ ].
The Company hereby confirms that those Distributions now to be paid will be
used to meet contractual or other legal obligations of EnergyCo which have
fallen due or will do so within the current or next financial quarter. The
Company further confirms that all other sources of funds reasonably available to
EnergyCo have been (or will within the current or next financial quarter be)
utilised in full.
Signed
_________________________________
for and on behalf of
PACIFICORP ACQUISITIONS
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SIGNATORIES TO FACILITY AGREEMENT
SERVICES
PACIFICORP SERVICES LIMITED
By: /s/ W.E. ▇▇▇▇▇▇▇▇▇
FINANCE
PACIFICORP FINANCE (UK) LIMITED
By: /s/ W.E. ▇▇▇▇▇▇▇▇▇
PA
PACIFICORP ACQUISITIONS
By: /s/ W.E. ▇▇▇▇▇▇▇▇▇
THE ARRANGERS
CITIBANK, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By: /s/ ▇. ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ SECURITIES LTD.
By: /s/ ▇. ▇▇▇▇
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THE ORIGINAL BANKS
CITIBANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS, L.P.
By: /s/ ▇. ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ ▇. ▇▇▇▇▇▇▇
THE FACILITY AGENT
CITIBANK INTERNATIONAL PLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
THE SECURITY AGENT
CITIBANK, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
THE LC BANK
CITIBANK, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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