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EXHIBIT (b)(5)
AMENDMENT AGREEMENT
RELATING TO A FACILITIES AGREEMENT DATED 2 MARCH 1998
TU Finance (No. 1) Limited (1)
TU Finance (No. 2) Limited (2)
TU Acquisitions PLC
Chase Manhattan plc (3)
Xxxxxx Brothers International
Xxxxxxx Xxxxx Capital Corporation
as Joint Lead Arrangers
The Chase Manhattan Bank (4)
Xxxxxx Commercial Paper Inc.
Xxxxxxx Xxxxx Capital Corporation
as Underwriters
The Chase Manhattan Bank (5)
as Issuing Bank
Chase Manhattan International Limited (6)
as Facility Agent
Chase Manhattan International Limited (7)
as Security Agent
For the Primary Borrower For the Facility Agent
Xxxxxx Xxxx Xxxxxx Xxxxx Xxxxxxx
London London
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THIS AGREEMENT is made the 3rd day of March 1998
BETWEEN:
(1) TU Finance (No. 1) Limited (a company registered in England and Wales
with company number 3505836) as Primary Borrower and the initial
Permitted Borrower;
(2) TU Finance (No. 2) Limited a company registered in England and Wales
with company number 3514100 ("Xxxxx 2") and TU Acquisition PLC, a
company registered in England and Wales with company number 3455523
("Bidco");
(3) Chase Manhattan plc, Xxxxxx Brothers International and Xxxxxxx Xxxxx
Capital Corporation as joint lead arrangers (the "Arrangers");
(4) The Chase Manhattan Bank, Xxxxxx Commercial Paper Inc. and Xxxxxxx
Xxxxx Capital Corporation as the original Banks (the "Underwriters");
(5) The Chase Manhattan Bank as the initial Issuing Bank;
(6) Chase Manhattan International Limited as the Initial Facility Agent;
and
(7) Chase Manhattan International Limited as the initial Security Agent.
WHEREAS:
(A) This Agreement is supplemental to a facilities agreement dated 2 March
1998 (the "Facilities Agreement") made between the parties to this
Agreement.
(B) The offer is to be increased today to 840p per Target Share and the
parties to this Agreement have agreed that the Facilities Agreement
shall be amended as follows in order to give effect to the increased
equity and debt financing necessary to give effect to the offer as
amended.
NOW IT IS HEREBY AGREED as follows:
1. Interpretation
In this Agreement unless otherwise provided in this Agreement or
unless there is something in the subject or context inconsistent with
it, all words and expressions defined in the Facilities Agreement
shall have the same respective meanings in this Agreement.
2. Amendment of the Facilities Agreement
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2.1 On receipt by the Facility Agent of the Conditions Precedent set out
in Schedule 1 to this Agreement, in form and substance satisfactory to
the Facility Agent the Facilities Agreement shall be amended by
amending the amount on the cover page to be L.3,625,000,000 and as
follows:
(a) Clause 1.1(a) (Purpose) of the Facilities Agreement is
amended by deleting "L.1,700,000,000" and inserting
"L.1,775,000,000" and by deleting "L.1,115,000,000" and
inserting "L.1,150,000,000";
(b) Clause 2.1(a) ("The Facilities") of the Facilities Agreement
is amended by deleting "L.1,700,000,000" and inserting
"L.1,775,000,000";
(c) Clause 2.1(b) (The Facilities) of the Facilities Agreement is
amended by deleting "L.1,115,000,000" and inserting
"L.1,150,000,000";
(d) Paragraph (c)(i) of Part B of Schedule 3 (Conditions
Precedent) of the Facilities Agreement is amended by deleting
"L.1,622,390,000" and inserting "L.1,678,082,000";
(e) Paragraph (f) and (k) of Part A of Schedule 3 (Conditions
Precedent) of the Facilities agreement are deleted and
inserted in Part B of Schedule 3 as new paragraphs (h) and (i)
respectively. It is expressly recognized that whilst these
conditions precedent have not been satisfied as at the date of
this Agreement, the documents necessary to satisfy these
conditions are in agreed form subject only to the Debenture
being amended to refer to the Facilities as they are finally
amended in order to implement the Offer and to receiving the
advice of King & Spalding in respect of the perfection of the
security interest created by the Debenture over American
Depository Receipts;
(f) The definition of "Agreed Projections" in Clause 1.2
(Definitions) of the Facilities Agreement shall be amended to
read "means the projections for the Group dated 2nd March 1998
as amended by the supplemental projections of 3rd March 1998,
both in the agreed form";
(g) It is recognized that whilst the Loan Note Instrument referred
to in paragraph (e) of Part A of Schedule 3 (Conditions
Precedent) is in agreed form, it has not yet been executed; a
reference to the Loan Note Instrument, duly executed, will be
added to the new paragraph (h) of Part B of Schedule 3
referred to above;
(h) The definition of "Fee Letters" in Clause 1.2 (Definitions) of
Facilities Agreement shall be construed as including, without
limitation, the fee letter referred to in Clause 7.1(a) of the
Facilities Agreement, as amended and restated on 3 March 1998;
and
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(i) Schedule 1 (The Banks and their Commitments) to the Facilities
Agreement is amended and restated in the terms of Schedule 2
of this Agreement.
3. Construction
3.1 The Facilities Agreement and this Agreement shall hereafter be read
and construed as one document and references in the Facilities
Agreement and each of the Finance Documents to the Facilities
Agreement shall be read and construed as references to the Facilities
Agreement as supplemented and amended by this Agreement.
3.2 Except where inconsistent with the provisions of this Agreement the
terms of the Facilities Agreement are hereby confirmed and shall
remain in full force and effect.
3.3 The execution, delivery and effectiveness of this Agreement shall not,
except as expressly provided by the terms of this Agreement, operate
as a waiver of any right, power or remedy of any Finance Party or the
Facility Agent under the Facilities Agreement, nor constitute a waiver
of any provisions of the Facilities Agreement.
4. Representations and Warranties of the Obligors
Each Obligor confirms and repeats, as of the date of this Agreement
and as of the date on which the amendments contained in this Agreement
take effect in accordance with clause 2 above, the representations and
warranties made by such Obligor in clause 9 (Representations and
Warranties) of the Facilities Agreement, with references therein to
the "Agreement" to be deemed to be references to the Facilities
Agreement as amended by this Agreement and the definition of "Finance
Documents" shall be construed accordingly.
5. Costs and Expenses
The Principal Borrower will reimburse to the Facility Agent on demand
all proper costs and expenses (including legal costs and out-of-pocket
expenses) and all value added tax thereon incurred by the Facility
Agent in connection with the negotiation, preparation and execution of
this Agreement, whether or not the Facilities Agreement is actually
amended in accordance with Clause 2 of this Agreement.
6. Counterparts
This Agreement may be executed in any number of counterparts and by
the different parties hereto on separate counterparts each of which
when executed and delivered shall constitute an original but all the
counterparts shall together constitute one and the same instrument.
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7. Law
This Agreement shall be governed by and construed in accordance with
English Law.
IN WITNESS whereof this Agreement has been entered into the day and year first
above written.
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SCHEDULE 1
CONDITIONS PRECEDENT
1. Certified copies of resolutions of the board of directors of each of
the Primary Borrower, Xxxxx 2 and Bidco in the agreed form approving
the execution and delivery of this Amendment Agreement and the
borrowing of the increased Facilities provided for in this Amendment
Agreement.
2. The amended underwriting fee letter, restating the fees payable by
reference to the increased facilities, countersigned by the Primary
Borrower.
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SCHEDULE 2
THE BANKS AND THEIR COMMITMENTS
==========================================================================================================
Commitments
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Bank Revolving Credit
Acquisition Facility Interim Facility Facility
Address and telefax number L. L. L.
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The Chase Manhattan Bank 591,666,667 383,333,334 233,333,334
000 Xxxxxx Xxxx
Xxxxxx
XX0X 0XX
Fax: x00 000 000 0000
Attn: Xxxx Xxxxxxx
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Xxxxxx Commercial Paper Inc. 591,666,666 383,333,333 233,333,333
3 World Financial Center
10th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: x000 000 0000
tel: x000 000 0000
Attn: Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxx Capital Corporation 591,666,667 383,333,333 233,333,333
4 World Financial Center
x/x Xxxxxxx Xxxxx & Xx.
Xxxxx Xxxxx
0xx Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Tel: x000 000 0000
Attn: Xxxxx Xxxxxx
==========================================================================================================
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PRIMARY BORROWER, XXXXX 2 AND BIDCO
Signed for and on behalf of
TU Finance (No.1) Ltd.
(company number 3505836)
/s/ TU Finance (No.1) Ltd.
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Signed for and on behalf of
TU Finance (No.2) Ltd.
(company number 3514100)
/s/ TU Finance (No.2) Ltd.
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Signed for and on behalf of
TU Acquisitions PLC
(company number 3455523)
/s/ TU Acquisitions PLC
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JOINT LEAD ARRANGERS
Signed for and on behalf of
Chase Manhattan plc
as Arranger
/s/ Chase Manhattan plc
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Signed for and on behalf of
Xxxxxx Brothers International (Europe) Limited
as Arranger
/s/ Xxxxxx Brothers International (Europe) Limited
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Signed for and on behalf of
Xxxxxxx Xxxxx Capital Corporation
as Arranger
/s/ Xxxxxxx Xxxxx Capital Corporation
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ORIGINAL BANKS
Signed for and on behalf of
The Chase Manhattan Bank
as Underwriter
/s/ The Chase Manhattan Bank
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Signed for and on behalf of
Xxxxxx Commercial Paper Inc.
as Underwriter
/s/ Xxxxxx Commercial Paper Inc.
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Signed for and on behalf of
Xxxxxxx Xxxxx Capital Corporation
as Underwriter
/s/ Xxxxxxx Xxxxx Capital Corporation
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ISSUING BANK
Signed for and on behalf of
The Chase Manhattan Bank
as Issuing Bank
/s/ The Chase Manhattan Bank
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FACILITY AGENT
Signed for and on behalf of
Chase Manhattan International Limited
as Security Agent
/s/ Chase Manhattan International Limited
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SECURITY AGENT
Signed for and on behalf of
Chase Manhattan International Limited
as Security Agent
/s/ Chase Manhattan International Limited
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