FACILITY AGREEMENT
Dated 13th June, 1997
(Pounds)2,250,000,000
TERM LOAN FACILITY
(Pounds)600,000,000
REVOLVING CREDIT FACILITY
Between
PACIFICORP SERVICES LIMITED
PACIFICORP FINANCE (UK) LIMITED
PACIFICORP ACQUISITIONS
as Guarantors
PACIFICORP ACQUISITIONS
as Borrower
CITIBANK, X.X.
XXXXXXX XXXXX INTERNATIONAL
X.X. XXXXXX SECURITIES LTD
as Arrangers
CITIBANK, X.X.
XXXXXXX XXXXX CREDIT PARTNERS X.X.
XXXXXX 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
XXXXX & XXXXX
London
B3:95992.2
CONTENTS
CLAUSE PAGE
1. Interpretation............................................................1
2. Facilities and Related Matters...........................................29
3. Purpose and Responsibility...............................................33
4. Conditions Precedent.....................................................34
5. Advances and Documentary Credits.........................................36
6. Optional Currencies......................................................40
7. Cancellation of Commitments..............................................41
8. Repayment................................................................42
9. Prepayment...............................................................42
10. Interest Periods.........................................................45
11. Interest.................................................................47
12. Payments.................................................................48
13. Taxes....................................................................50
14. Market Disruption........................................................52
15. Increased Costs..........................................................54
16. Illegality...............................................................56
17. Mitigation...............................................................57
18. Guarantee................................................................58
19. Additional Borrowers, Guarantors and Security............................61
20. Representations and Warranties...........................................63
21. Undertakings.............................................................69
22. The Offer................................................................87
23. Financial Ratios.........................................................89
24. Default..................................................................91
25. Indemnities..............................................................99
26. Agents, Arrangers and Banks.............................................101
27. Fees, Expenses and Stamp Taxes..........................................107
28. Waivers, Remedies Cumulative............................................109
29. Notices.................................................................110
30. Assignments, Transfers and Substitutions................................110
31. Set-Off and Redistribution..............................................115
32. Governing Law and Jurisdiction..........................................116
33. Confidentiality.........................................................117
34. Miscellaneous...........................................................118
SCHEDULES PAGE
A. Notice Details for Borrower and Agents..................................119
X. Xxxxx' Commitments and Notice Details...................................122
C. Forms of Request........................................................123
D. Substitution Certificate................................................124
E. Calculation of Additional Cost..........................................126
F. Accession Agreement.....................................................128
G. Documentary Conditions Precedent........................................134
H. Terms of Banks' Indemnity to LC Bank....................................138
I. Reservations............................................................140
SIGNATORIES..................................................................142
THIS FACILITY AGREEMENT is dated the 13th June, 1997 and made BETWEEN:-
(1) PACIFICORP SERVICES LIMITED a company incorporated in England and Wales
(No. 3366016) ( the "COMPANY");
(2) PACIFICORP ACQUISITIONS a company incorporated in England and Wales (No.
3386442) ("BIDCO");
(3) PACIFICORP FINANCE (UK) LIMITED a company incorporated in England and Wales
(No. 3365681) ("FINANCE");
(4) CITIBANK, N.A., XXXXXXX XXXXX INTERNATIONAL and X.X. XXXXXX SECURITIES LTD
as Arrangers (in this capacity the "ARRANGERS");
(5) CITIBANK, N.A., XXXXXXX XXXXX CREDIT PARTNERS L.P. and XXXXXX 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 (Pounds)2,250,000,000 to
Bidco and, upon their accession hereto as Additional Borrowers, the Target and
certain of its Subsidiaries and a revolving credit facility of
(Pounds)600,000,000 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 with the agreement of the Facility Agent 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 Accounting Date for which Accounts are required to be
prepared for the purposes of this Agreement.
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"ACCOUNTS" means from time to time:-
(a) the latest audited consolidated annual accounts of the Bidco Group
together with a Reconciliation Statement in relation thereto;
(b) the latest unaudited consolidated quarterly accounts of the Bidco
Group together with a Reconciliation Statement in relation thereto;
(c) the consolidated unaudited accounts of the Bidco 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 Bidco 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 Xxx 0000 and, unless the context otherwise
requires, all subordinate legislation made pursuant thereto.
"ADDITIONAL BORROWER" means the Target and any wholly owned subsidiary of
the Target, 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 means, for
the Interest Period relating to that Advance or overdue amount:
(i) where such Advance or amount is denominated in Sterling, the cost as
calculated by the Facility Agent in accordance with Schedule E 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; and
(ii) where such Advance or amount is denominated in a currency other than
Sterling, the rate per annum notified by any Bank to the Facility
Agent to be the cost to that Bank of compliance with all reserve
assets, liquidity or cash margin or other requirements of any
applicable monetary or other authority in relation to that Advance or
overdue amount.
"ADDITIONAL GUARANTOR" means any member of the Bidco 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 Bidco,
PLUS the outstanding principal amount of any Subordinated Debt other than
the Subordinated Debt arising pursuant to the Xxxxx Global Subordinated
Loan Note;
PLUS the amount standing to the credit (or, as the case may be, MINUS the
amount standing to the debit) of the capital and revenue reserves of the
Bidco Group;
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PLUS any amount standing to the credit or MINUS any amount standing to the
debit of the consolidated profit and loss account of the Bidco 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 Bidco or
any of its Subsidiaries (other than to another member of the Bidco 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 in any member of the Bidco Group other than Bidco
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.
"ADJUSTED NET INCOME" for any quarterly Accounting Period of Bidco means
the sum of (i) the net profit (after tax) of the Bidco 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 Bidco 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 Bidco Group for such quarterly Accounting Period
adjusted for the amount by which the tax payable by the Bidco 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.
"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) Xxxxxxx Sachs International Bank and Xxxxxxx Xxxxx Credit Partners
L.P. will be treated as Affiliates of each other.
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"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.
"AMAZON ELECTRICITY" means Eastern Electricity plc.
"AMAZON GAS" means Eastern Natural Gas Limited.
"ANNOUNCEMENT DATE" means the date on which the Press Release is issued.
"APPLICABLE ACCOUNTING PRINCIPLES" means 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 writing by the Majority
Banks.
"APPLICABLE TAXES" has the meaning given to it in Clause 13.1.
"ASSET SPLIT" means together:
(i) the transfer by Xxxxx Global to Bidco of 100% of the issued share
capital of Xxxxx Holdings and the issuance by Bidco in favour of
Xxxxx Global of the Xxxxx Global Subordinated Loan Note;
(ii) the transfer by Bidco to Coalco of 100% of the issued share capital
of Xxxxx Holdings in satisfaction of the Coalco Loan and all
obligations and liabilities arising pursuant to and the cancellation
of the Coalco/Bidco Loan Agreement; and
(iii) the accession by Xxxxx Global as Subordinated Creditor to the
Intercreditor Agreement with respect to the Xxxxx Global
Subordinated Loan Note,
as contemplated by 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 Bidco to
audit the consolidated annual accounts of Bidco.
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"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 that 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
Bidco is obliged pursuant to Clause 21.10(o) 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.
"BANK" means each of the following:-
(a) each party whose name is set out in Schedule B;
(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,
6
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 Clauses 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 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 the Target for and as at the end of the financial year of the Target
ended 30th September, 1996.
"BORROWER" means Bidco and each Additional Borrower.
"BORROWER ACCESSION AGREEMENT" means an agreement substantially in the form
of Schedule F Part I 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, 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 and 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 concerned carried on in
the normal course and not entered into primarily as a means of raising
finance, and which do not involve any deferral of payment of any sum
for more than six months;
(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 in the
ordinary course of business carried on in the normal course);
(d) leases, agreements or instruments which are treated as finance leases
in accordance with the Applicable Accounting Principles other than the
variable amounts payable in respect of the generation lease
arrangements in force as at the date hereof between National Power plc
and any member of the Target Group and Powergen plc and any member of
the Target Group;
(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,
7
any of the indebtedness specified in this definition 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 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;
(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 must 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 the definition of Consolidated Net Total Borrowings in
Clause 1.1 or for the purposes of Clause 21.4(a) double counting shall be
avoided and:-
(i) any interest, dividends, commission, fees or other like financing
charges, and any item falling within paragraph (g), shall be
excluded, save in each case to the extent capitalised;
(ii) the outstanding amount of any Subordinated Debt and 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;
(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, or in any notes to those Accounts; and
(vi) all obligations and liabilities in respect of Derivative
Transactions (other than any Hedging Documents) shall be included
to the extent the Net Termination Value of such Derivative
Transactions at any time exceeds (Pounds)100,000,000.
"BORROWINGS LIST" means a list delivered to the Facility Agent on or about
25th June, 1997 and initialled on behalf of the Company 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) as at 30th May, 1997 and in respect
of which any utilisation thereunder constitutes or would constitute a
Borrowing of any member of the Target Group, (b) which of those facilities
were utilised as at 30th May, 1997 and the
8
approximate extent of such utilisation and indicating any such Borrowings
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
Bidco to be the member which), subject to becoming a Borrower hereunder, is
to be the Borrower of any funds borrowed 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
(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
Xxxxx'x 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;
(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 Xxxxx'x Investor Services Inc. or A2 or
higher by Standard & Poor's Ratings Group.
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"CHIEF FINANCIAL OFFICER" means the finance director or chief financial
officer of Bidco from time to time or in his absence his deputy (being an
Authorised Signatory of Bidco).
"CITIZENS" means Citizens Power LLC and each of its subsidiaries.
"COALCO" means Pacificorp Powercoal LLC, a limited liability company
organised on June 10, 1997 under the laws of Oregon.
"COALCO/BIDCO LOAN" bears the meaning given to that term in Clause
4.1(b)(iv).
"COALCO/BIDCO LOAN AGREEMENT" means the agreement, note or other instrument
pursuant to which the Coalco/Bidco Loan is outstanding or by which it is
evidenced or, as the case may be, the intercompany loan arrangement
pursuant to which the Coalco/Bidco Loan is to be made.
"COALCO FACILITY AGREEMENT" means a credit agreement dated on or around the
date hereof between Coalco, the Lenders (as defined therein), and Xxxxxx
Guaranty Trust Company of New York as swingline lender, issuing bank,
paying agent and collateral agent for the Lenders (as defined therein).
"COALCO INTERCREDITOR AGREEMENT" means an agreement dated on or about the
25th June,1997 and entered into by certain of the parties hereto and
certain of the parties to the Coalco Facility Agreement.
"COALCO LENDERS" means the Lenders (as defined in the Coalco Facility
Agreement) from time to time.
"COALCO LOAN" means, at any time, all amounts outstanding at that time upon
and subject to the terms of the Coalco Facility Agreement.
"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 Schedule B 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.
"COMPANY/BIDCO LOAN AGREEMENT" means the loan arrangements entered into or
to be entered into between the Company and Bidco pursuant to which the
Company shall lend to Bidco Subordinated Debt as more fully referred to in
the Structure Memorandum.
"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 Bidco (taken together as one period) means
the profit of the Bidco Group for such period:-
BEFORE DEDUCTING all depreciation and other amortisation (including,
without limitation, amortisation of goodwill arising from and upon the
acquisition of the Shares and amortisation
10
of Offer Costs and amortisation of any prepayment made prior to the date
hereof 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 Target Group and between Powergen Plc and a member of the
Target Group);
BEFORE TAKING INTO ACCOUNT all extraordinary items (whether positive or
negative) but AFTER TAKING INTO ACCOUNT all exceptional 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 arising of the Bidco Group 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 Bidco 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 Bidco Group from sources
external to the Bidco Group (giving effect to the proviso to the definition
of Borrowings in Clause 1.1.),
LESS the Bidco Group's Cash (excluding moneys received by Amazon
Electricity in consideration of the supply of goods and/or services prior
to the date of such supply) 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 Bidco 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 Bidco 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 four (taking into account the provisions of
Clause 23.2) consecutive quarterly Accounting Periods (taken together as
one period) of Bidco means the Interest accrued during
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such period as an obligation of any member or members of the Bidco Group
(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 Bidco 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 Bidco 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 Bidco 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
the Company, Finance, Bidco 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.
"DISTRIBUTIONS" bears the meaning given to that term in Clause 21.6.
"DISTRIBUTION BUSINESS" means the business of Amazon Electricity, or any
successor undertaking to that business within the Bidco Group, in or
ancillary to the distribution (whether
12
for its own account or that of any other party) of electricity through the
distribution system of Amazon Electricity 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.
"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/COMPANY LOAN AGREEMENT" means the loan arrangements entered into
or to be entered into between the Company and Energyco pursuant to which
Energyco shall lend to the Company 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, 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
Company 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 Company 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
13
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.
"FACILITY OFFICE" in relation to a Bank means:-
(a) the office of that Bank whose address appears under its name in
Schedule B 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.
"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 Security
Documents, the Hedging Documents, the Intercreditor Agreement, the
Coalco/Bidco Loan Agreement, the Xxxxx Global Subordinated Loan Note, the
Energyco/Company Loan Agreement, the Company/Bidco Loan Agreement, the
Coalco Intercreditor Agreement and any other document designated as such by
the Facility Agent and the Company.
"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 thereof in Dollars at an exchange rate of (Pounds)1:
$1.64.
14
"FIXED STERLING EQUIVALENT" in relation to any amount denominated in
Dollars means the equivalent thereof in Sterling at an exchange rate of
$1.64: (Pounds)1.
"GAS ACT" means the Gas Xxx 0000 (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.
"GAS LICENCE" means a licence for the transportation, shipping or supply of
gas held by a member of the Bidco Group, as issued pursuant to Section 7 or
7A of the Gas Act.
"GENERATION BUSINESS" means the business of Target and its Subsidiaries in
or ancillary to the generation (whether for its own account or that of any
other party) of electricity.
"GROUP" means:
(i) when designated "COMPANY", the Company and its Subsidiaries (excluding
Xxxxx Group) from time to time;
(ii) when designated "BIDCO", Bidco and its Subsidiaries (excluding Xxxxx
Group) from time to time,
and without such designation the Bidco Group or the Company Group as the
context so requires.
"GUARANTOR" means each of the Company, Finance, Bidco and each Additional
Guarantor.
"GUARANTOR ACCESSION AGREEMENT" means an agreement substantially in the
form of Schedule F Part II made pursuant to Clause 19.2.
"HEDGING DOCUMENTS" means any and all interest rate swap and/or interest
rate cap and/or other interest rate hedging agreements entered into or
committed to be entered into by any member of the Bidco Group in relation
to the risk management of Bidco Group's floating rate interest exposure as
have been heretofore (and/or as may hereafter be) agreed in writing between
the Company 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).
"HIGH YIELD BRIDGE FACILITY AGREEMENT" means a bridge loan agreement dated
on or around the date hereof between Energyco as borrower, Newco as
guarantor, Citibank N.A., Xxxxxxx Xxxxx Credit Partners LP and Xxxxxx
Guaranty Trust Company of New York as arrangers.
"HIGH YIELD LOAN" means loans of up to US$1,575,000,000 made or to be made
to Energyco, upon and subject to the terms of the High Yield Bridge
Facility Agreement.
"HOLDING COMPANY" means, in relation to a body corporate, any other body
corporate of which it is a Subsidiary.
15
"INFORMATION MEMORANDUM" means an information memorandum relating to the
Company Group as, when and if agreed between the Company and the Arrangers
for use in the syndication of the Facility.
"INTRA GROUP LOAN AGREEMENT" means a loan agreement, in the agreed form to
be entered into by members of the Company Group.
"INTERCREDITOR AGREEMENT" means an agreement in the agreed form made or to
be made between the Company, Finance, Bidco, 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);
(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.
"INTERIM PAYMENT" means any Distribution paid in respect of, or by
reference to, the first two consecutive quarterly Accounting Periods in any
annual Accounting Period of Bidco.
"LC BANK" means Citibank, N.A. and/or any other bank which becomes an LC
Bank pursuant to Clause 5.8.
16
"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
upward, 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 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 a licence for the generation, transmission or supply of
electricity held by a member of the Company Group and issued pursuant to
Section 6(1) of the Act and any Gas Licence, in each case as modified or
supplemented from time to time.
"LICENCEHOLDER" means at any time a member of the Company 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 the Company, Bidco
or the Target 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 the Target
or any other member of the Target Group once it has become a Subsidiary of
the Company.
17
"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. (66 2/3%) of the
aggregate 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. (66 2/3%) 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 aggregate Commitments at such time, provided that
such Banks include all of the Original Banks.
"MARGIN" means one point three zero per cent. (1.30%) per annum, provided
that if at any time after the expiry of the Accounting Period ending 31st
March, 1998 any consolidated Accounts of the Group delivered to the
Facility Agent 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
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 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) (3)
% Margin (p.a) Margin (p.a.)
(a) Greater than 75% 1.30% 1.15%
(b) Equal to or less than 75% but greater 1.10% 0.95%
than 70%
(c) Equal to or less than 70% but greater than 0.90% 0.75%
65%
(d) Equal to or less than 65% but greater than 0.70% 0.55%
60%
(e) Equal to or less than 60% 0.50% 0.35%
then (subject as mentioned below) the Margin shall be the percentage per
annum set out in Column 2 above opposite such ratio, or, in the case of
determining any rate of interest or fees to apply hereunder to any
Utilisation made by Amazon Electricity, the percentage per annum set out in
Column 3 above, 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:
18
(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 Bidco 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,
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 the Company 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
Coalco to Bidco on the terms of the Coalco/Bidco Loan Agreement equal to
the Fixed Dollar Equivalent of 61.666'% (or such other percentage as the
Company 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 this definition by more than 0.5) of the Requested
Amount for that Tranche 1A Advance.
"MATERIAL ADVERSE EFFECT" means any effect which is or is reasonably likely
to have:
(a) 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
19
(b) (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.
"MATERIAL SUBSIDIARY" means, at any time, each Obligor (other than the
Company) and, on and from the Unconditional Date, each Licenceholder,
together with:
(i) on and from the Unconditional Date until the date from which paragraph
(ii) below applies:
(a) Target;
(b) Amazon Electricity;
(c) Eastern Merchant Property Limited;
(d) Eastern Power and Energy Trading Limited;
(e) 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 Bidco
(other than any Project Finance Subsidiary):
(I) (A) whose profit before tax (on a consolidated basis if it has
Subsidiaries and for the latest period comprising an annual
Accounting Period of Bidco or four consecutive quarterly
Accounting Periods of Bidco (taken together as one period) for
which consolidated Accounts of the Bidco Group have been
delivered to the Facility Agent) on ordinary activities or (B)
whose gross assets (excluding goodwill) represent 5% or more of
the consolidated profits before tax on ordinary activities of the
Bidco Group for such period or, as the case may be, consolidated
gross assets (excluding goodwill) of the Bidco Group, in each
case as calculated by reference to the latest consolidated
Accounts of the Bidco Group delivered to the Facility Agent
adjusted in such manner as the auditors of Bidco may determine
(which determination shall be conclusive in the absence of
manifest error) to reflect the profits (or losses) before tax on
ordinary activities and consolidated gross assets (excluding
goodwill) of any person which has become or ceased to be a member
of the Bidco Group since the end of the financial period to which
the latest financial statements of the Bidco Group relate; or
(II) to which is transferred (after the end of the financial period to
which the latest consolidated financial statements of the Bidco
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 Subsidiary under this
sub-Clause (ii) upon the completion of such transfer.
20
"MODEL" means the economic projections and base assumptions concerning the
Bidco Group prepared by Xxxxxxx 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 Bidco 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 ended on or prior to such date 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 Bidco 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 Bidco Group and such counterparty would also terminate
and the amount (if any) payable by such member of the Bidco 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 Bidco Group determined as of
the later of (a) the end of the most recently ended quarterly Accounting
Period 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 Company Group in
respect of the disposal to any person who is not a member of the
Company 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), 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 Company Group in
arranging and effecting that disposal;
(b) the proceeds of any equity subscription in the capital of the Company
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(f)); and/or
(c) the proceeds of any claim for loss or destruction of or damage to the
property of a member of the Company Group made by a member of the
Company Group under any insurance policy save where the Company
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 Company Group 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 and electricity forward
contracts and contracts for differences), the difference between (a) the
aggregate amounts (if any) that would be required to be paid by any
21
member of the Bidco Group if such Derivative Transactions were terminated
by reason of a default relating to any member of the Bidco Group, and (b)
the aggregate amounts (if any) that any member of the Bidco Group would be
entitled to receive if such Derivative Transactions were terminated by
reason of a default relating to any member of the Bidco 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).
"NEWCO" means Pacificorp Group Holdings Company, an Oregon corporation
incorporated on June, 10 1997.
"OBLIGOR" means each Borrower and each Guarantor.
"OFFER" means the offer for the Shares to be made by Xxxxxxx Sachs
International on behalf of Bidco 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)).
"OFFER ACCOUNT" means the account in the name of Bidco opened with the
Facility Agent 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 the Company or any Subsidiary thereof
(including any member of the Target 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
the Target containing the formal Offer.
"OFFER TERMINATION DATE" means the earliest date (as notified by Bidco 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 (c) all procedures pursuant to section 428 et seq. Companies Xxx 0000
which are capable of being implemented have been completed and all payments
pursuant thereto to shareholders in the Target have been made in full.
"OPEN MARKET SHARES" means the shares in the capital of Target purchased
by Riki (or any Affiliate thereof) prior to the Unconditional Date
(including any such shares represented by Target's American Depositary
Shares).
"OPTIONAL CURRENCY" means any freely available and transferable
eurocurrency.
22
"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 the Target 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).
"PANEL" means The Panel on Takeovers and Mergers.
"XXXXX GLOBAL" means Peabody Global Investments, Inc.
"XXXXX GLOBAL SUBORDINATED LOAN NOTE" means the subordinated loan note
issued or to be issued by Bidco to Xxxxx Global as contemplated by the
Structure Memorandum.
"XXXXX GROUP" means Citizens and Xxxxx Holdings.
"XXXXX HOLDINGS" means Peabody Holding Company Inc. and each of its
subsidiaries.
"XXXXX INVESTMENTS" means Peabody Investments Inc.
"POOLING AND SETTLEMENT AGREEMENT" means an agreement dated 30th March,
1990 made by the Target 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.
"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 "Borrowings" in this
Clause 1.1 which finances or otherwise relates to the acquisition,
development, ownership and/or operation of an asset:
(a) which is incurred by a Project Finance Subsidiary; or
23
(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
Bidco Group) has or have no recourse whatsoever to any member of the
Bidco 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; and/or
(ii) recourse to such debtor for the purpose only of enabling amounts
to be claimed in respect to such Borrowing in an enforcement of
any Encumbrance given by such debtor over such asset 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 to such debtor generally, or directly or indirectly to
a member of the Bidco 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.
"PROJECT FINANCE SUBSIDIARY" means any Subsidiary of Bidco:
(a) which is a company whose principal assets and business are constituted
by the ownership, acquisition, development and/or operation of an
asset whether directly or indirectly;
(b) none of whose Borrowings in respect of the financing of the ownership,
acquisition, development and/or operation of an asset benefits from
any recourse whatsoever to any member of the Company Group (other than
the Subsidiary itself 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 the Company by written notice to
the Facility Agent provided that the Company may give written notice
to the 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.
24
"RECOGNISED BANK" means at any time a bank or other entity 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 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 UK 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 if, at the time it becomes a
party to this Agreement, it is resident (as defined in the appropriate
double taxation treaty) in a country with which the United Kingdom has
an appropriate double taxation treaty and such treaty provides at the
date hereof (or in the case of a transferee under Clause 30, at the
date of transfer) under its terms for 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 the
appropriate application to the appropriate tax authority under such
treaty for such exemption.
"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 Bidco 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
Xxxxxx Guaranty Trust Company of New York and/or of such other Banks (if
any) as may become Reference Banks pursuant to Clause 30.5.
"REFINANCING DEBT" means all Borrowings 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 Bidco has indicated on that list may be refinanced
in accordance with the provisions of Clause 21.9.
25
"REQUEST" means a request, substantially in the form of Schedule C (as
appropriate), made by a Borrower to the Facility Agent for a Utilisation.
"RESERVATIONS" means the qualifications and reservations set out in
Schedule I.
"XXXXXXX" means PacifiCorp, an Oregon corporation incorporated on August
11, 1987.
"RIKI" means PacifiCorp Holdings, Inc, a Delaware corporation incorporated
on July 3, 1994.
"SECRETARY OF STATE" means the Secretary of State as referred to in the Act
and the Secretary of State as referred to in the Gas Act.
"SECURITY DOCUMENTS" means the Debenture of even date herewith executed by
both the Company and Bidco and any other security documents identified in
Schedule G Part IV, 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.
"SHARES" means existing unconditionally allotted or issued and fully paid
shares in the Target and any further shares in the Target which are
unconditionally allotted or issued before the date on which the Offer
ceases to be open for acceptances (or such earlier date as the Company 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 the Target's American Depositary Shares.
"STERLING" and "(Pounds)" 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 and charts entitled "Financing
the Acquisition of The Energy Group plc" dated June 1997 delivered to the
Facility Agent on or about 25th June, 1997 and initialled on behalf of the
Company and the Facility Agent for the purposes of identification.
"SUBORDINATED CREDITOR" bears the meaning given to that term in the
Intercreditor Agreement.
"SUBORDINATED DEBT" means:
(i) the outstanding principal amount from time to time under the
Company/Bidco Loan Agreement;
(ii) the outstanding principal amount from time to time owing by Bidco to
Finance;
(iii) the Xxxxx Global Subordinated Loan Note; and
(iv) any separate unsecured loans to the Company or by the Company to
Bidco which in each case (a) have a maturity falling after the Final
Repayment Date, (b) are not
26
capable of acceleration whilst any amount of principal, interest, fees
or breakage costs may be or become payable by any member of the Bidco
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 Bidco Group under the Finance
Documents on the terms set out in the Intercreditor Agreement; and
(v) any subordinated Borrowing by the Company or Finance or by Bidco from
the Company or Finance that (i) has no principal payments due on a
date that is earlier than twenty-four months after the Final Repayment
Date, (ii) is subordinated and the subject of intercreditor provisions
which are reasonably satisfactory to the Majority Banks and (iii) has
a fixed interest rate, which rate shall be, in the good faith judgment
of the Chief Financial Officer, consistent with the market at the time
of issuance for similar subordinated Borrowings.
"SUBSIDIARY" means:
(a) a subsidiary as defined in Section 736 of the Companies Xxx 0000, 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
Xxx 0000, as amended or, in either case, any statutory re-enactment or
replacement thereof,
but, in each case, shall exclude any member of the Xxxxx 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 to this
Agreement pursuant to Substitution Certificates.
"TARGET" means The Energy Group plc a company incorporated under the laws
of England and Wales.
"TARGET GROUP" means Target and its Subsidiaries.
"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 Bidco Group relating to the
surrender of UK Corporation tax for group relief purposes.
"TRANSACTION DOCUMENTS" means the Finance Documents, the Coalco Facility
Agreement, the Coalco/Bidco Loan Agreement, the High Yield Bridge Facility
Agreement, any Intra Group Loan Agreement and the Tax Sharing Agreement.
27
"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)).
"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, the Majority
Offer Banks or all of the Banks.
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) in a form previously agreed in writing by or on behalf of
the Facility Agent and the Company, or (ii) in form and substance
satisfactory to the Original Banks and initialled by or on behalf of
the Company 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
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;
(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;
28
(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;
(i) references (by whatever term, including by name) to the Company,
Bidco, the Target, 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;
(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
29
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
(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.
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 Xxxxx xxxxx to the relevant Borrowers
the following facilities:
(a) TRANCHE 1A FACILITY: a term loan facility whereby, subject as
aforesaid, the Banks, when requested by Bidco and/or (after becoming a
Borrower hereunder pursuant to a Borrower Accession Agreement) the
Target or any of the Target's Subsidiaries pursuant to a Request, will
make Tranche 1A Advances denominated in Sterling to Bidco, the Target
or any of the Target'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;
(b) TRANCHE 1B FACILITY: a term loan facility whereby, subject as
aforesaid, the Banks, when requested by Bidco and/or (after becoming a
Borrower hereunder pursuant to a Borrower Accession Agreement) the
Target or any of the Target's Subsidiaries pursuant to a Request will
make Tranche 1B Advances denominated in Sterling to Bidco, the Target
or any of the Target'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
30
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 Bidco and/or (upon it
becoming a Borrower pursuant to a Borrower Accession Agreement) the
Target or any Subsidiary of the Target;
(c) Tranche 1B Utilisations may be made only by Bidco and/or (upon it
becoming a Borrower pursuant to a Borrower Accession Agreement) the
Target or any Subsidiary of the Target;
(d) without prejudice to the provisions of Clause 10.4(d), Bidco 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 five 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;
(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;
(g) (Pounds)200,000,000 of the Tranche 2 Commitments shall not be capable
of being drawn other than (i) by way of Documentary Credit in favour
of lessors (or by way of Documentary Credit as a counter indemnity to
banks with outstanding guarantees, indemnities or letters of credit in
favour of lessors) in relation to the lease and/or cross-border lease
facilities in favour of Peterborough Power, Ltd referred to in the
Borrowings List, and/or (ii) by way of Advance the proceeds of which
are applied to cash collateralise obligations to such lessors in
respect of such leases and/or to such banks in respect of such
outstanding guarantees, indemnities or letters of credit in favour of
such lessors (and accordingly unless and until such amount is drawn
for that purpose or cancelled it shall remain undrawn but available
for drawing upon and subject to the terms of this Agreement);
(h) prior to the Asset Split occurring Bidco shall not make any Tranche 1B
Utilisation unless the entire proceeds are applied for the purpose
specified in Clause 3.1(a)(ii)(B); and
(i) prior to the Asset Split occurring, Bidco shall not itself make
Tranche 2 Utilisations outstanding at any time of an aggregate
Original Sterling Amount in excess of (Pounds)50,000,000.
31
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 the Company 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 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) COMPANY AS OBLIGORS' AGENT: Any and each Obligor (other than the Company)
by and upon its execution of this Agreement or a Borrower Accession
32
Agreement or a Guarantor Accession Agreement, irrevocably appoints the
Company to act on its behalf as its agent in relation to the Finance
Documents and irrevocably authorises the Company 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) COMPANY'S ACTS BINDING: Every act, omission, agreement, undertaking,
settlement, waiver, notice or other communication given or made by the
Company 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 the Company and any other Obligor, those of the
Company shall prevail.
2.5 CHANGE OF CURRENCY
(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
the Company), 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 Facility Agent shall be entitled to that extent to give
priority to putting the Banks into that position.
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 the Target'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 the Target's American Depositary Shares.
(b) Upon the occurrence of the event set out in paragraphs (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.
33
(c) Whilst Clause 2.6(a) applies to the terms of this Agreement:
(i) Bidco shall not be permitted to dispose of the Shares or the Target'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 the Target's
American Depositary Shares (or any of them) shall be held by Bidco 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 Bidco 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 Bidco, the Target or any of its Subsidiaries to the
Optionholders under proposals with respect to the Option Schemes
put to them in connection with the Offer;
(C) the consideration payable pursuant to the operation by Bidco 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 the Target and its Subsidiaries in accordance
with Clause 21.9 and (B) the payment of Offer Costs;
(iii) in the case of Tranche 2 Utilisations, (A) the general working
capital requirements of the Borrowers and their Subsidiaries (subject
always to the other terms of this Agreement), and (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 Bidco, the Target and its Subsidiaries in
accordance with Clause 21.9.
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(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, 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 the Company 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 Banks that, after 100% of the Shares have been acquired by Bidco
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 "SURPLUS")
of the Tranche 1A Commitments will remain undrawn, then from and after the
date of such notice the proceeds of Tranche 1A Advances in an aggregate
amount not at any time exceeding the Surplus may be applied as provided for
in Clause 3.1(a)(i)(D).
3.3 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 the Company 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 Schedule G Part I in the agreed form and each of the
documents referred to in Schedule G Part I 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) all those matters (including, without limitation,
capitalisations, reorganisations, transfers and debt repayments
and receipts) described in the Structure Memorandum and required
to have been completed on or before the Unconditional Date have
been completed substantially in accordance with the Structure
Memorandum;
(ii) the Open Market Shares have been transferred to and are
unconditionally owned by Bidco;
(iii) an aggregate amount of at least (Pounds)980,000,000 (or the
Fixed Dollar Equivalent of such amount to the extent not
deposited in Sterling) has been deposited into
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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; and
(iv) Coalco has entered into the Coalco Facility Agreement and the
obligations of all the parties to the Coalco Facility Agreement
are unconditional as regards the loans to be made to Coalco to
be applied by Coalco in funding its loans to Bidco contemplated
by the Structure Memorandum save to the extent that any of those
obligations are conditional upon the making of a Utilisation or
Utilisations under this Agreement, and Coalco has entered into
an intercompany loan arrangement with Bidco to the effect that
proceeds of certain drawings made pursuant to the Coalco
Facility Agreement will be lent to Bidco (such loan being
referred to herein as the "COALCO/BIDCO LOAN"), and has
instructed the Coalco Lenders to remit directly (or through
their agent) the proceeds of any such drawing under the Coalco
Facility Agreement to the Offer Account.
As to satisfaction of the conditions in paragraphs (i), (ii) and (iv)
above, the certificate of an Authorised Signatory of the Company
shall be prima facie evidence;
(c) OFFER: the Offer shall have become or been declared unconditional in
all respects without Bidco having declared the Offer or permitted the
Offer to become so unconditional in circumstances where any provision
of Clause 22 is breached thereby;
(d) HEDGING: the Company and the Facility Agent shall have agreed in
writing 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
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)) 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) of this Agreement are correct
in all material respects (as if then made) ignoring any
references to Subsidiaries (other than Bidco), the Target, its
Subsidiaries and their respective businesses and assets; and
36
(iii) no Event of Default falling within any of paragraphs (f) to (l)
inclusive of Clause 24.1 has occurred with respect to the
Company, Finance or Bidco; 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 Coalco to Bidco on the terms of the Coalco/Bidco Loan
Agreement on or prior to the making of such Tranche 1A Advance.
4.3 FURTHER CONDITIONS PRECEDENT
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) 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 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.
5. ADVANCES AND DOCUMENTARY CREDITS
5.1 DELIVERY OF REQUEST
(a) Subject to the terms of this Agreement, Bidco 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, the Company, 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
37
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, Bidco
and, in the case of any other Tranche 1 Advance, Bidco, the Target or
any of the Targets' Subsidiaries (upon (in the case of the Target 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 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 (Pounds)10,000,000
in the case of a Tranche 1 Advance or (Pounds)20,000,000 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
(Pounds)20,000,000, and in the case of a Tranche 2 Utilisation by way
of Letter of Credit, a Sterling Equivalent of at least
(Pounds)2,000,000, provided always that no Requested 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, 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.
38
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.
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.
(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 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),
39
(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 Company 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 the Company 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 Schedule H. 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 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 the Company and the Majority
Banks, may designate any Bank as a replacement LC Bank, but not with
respect to Documentary Credits already issued by an existing LC Bank.
40
(b) The LC Bank may resign at any time on giving not less than 3 months' prior
written notice to the Facility Agent and the Company to expire on or after
the first anniversary of the Unconditional Date if (i) the Company 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 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
41
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
The Company 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
(Pounds)20,000,000 and in whole multiples of (Pounds)2,500,000 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 the Company 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), the Company, 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 (Pounds)20,000,000 (or its equivalent in
other currencies, in the case of a Tranche 2 Utilisation) (and, if more, a
whole multiple of (Pounds)2,500,000).
(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
Company Group are disposed of; or
43
(b) any funds are received by the Company 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(f)); or
(c) any insurance proceeds are recovered by a member of the Group which
represent Net Proceeds,
the Company, unless the Majority Banks shall otherwise consent in writing,
shall apply, or shall procure that (subject to the proviso set out below)
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 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(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
(Pounds)25,000,000 in the aggregate and/or (with respect only to any
excess the Company confirms that 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) (other than in respect of the disposal or sale of assets permitted
pursuant to Clause 21.3(c)(ii)(F)) to Net Proceeds arising from
disposals (other than those falling within paragraphs (i) to (iv)
above) 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
Bidco Group shown in the audited Accounts of the Bidco 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, the Base Financial Statements) provided and to the extent
that such consideration is applied within one year of receipt in
acquiring other assets to be used in the course of the Bidco Group's
business without any breach of Clause 21.10(a); or
(vi) 50% of the Net Proceeds arising from any other disposals (other than
in respect of the disposal or sale of assets permitted pursuant to
Clause 21.3(c)(ii)(F)) which do not fall to be dealt with under
paragraphs (i) to (v) above provided and to the extent that such 50%
portion of the Net Proceeds is applied within one year of receipt in
acquiring other assets to be used in the course of the Bidco Group's
business carried on without breaching Clause 21.10(a); or
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(vii) to Net Proceeds arising as a result of any disposal referred to in
the Structure Memorandum and carried out as contemplated therein.
9.4 AVAILABILITY OF NET PROCEEDS
Where:
(i) the terms of a Licence restrict the ability of a member of the Bidco
Group to make Net Proceeds available;
(ii) a member of the Bidco Group is prohibited by section 151 et seq.
Companies Xxx 0000 from applying Net Proceeds; or
(ii) 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. The Company will and will procure
that the relevant member of the Bidco 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 the Company or the Borrower named in such notice shall be bound to
prepay (or, in the case of the Company, 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 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
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(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 the Company 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.
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 the Company 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 otherwise agrees). If
the relevant Borrower fails to specify the duration of an Interest Period
for any Advance the duration of that Interest Period shall be
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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 (Pounds)20,000,000. 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.
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) Bidco 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
47
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 the Company 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
(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 judgement, 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 the Company
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.
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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 the Company, the relevant Borrower and the Banks.
12. PAYMENTS
12.1 FUNDS, PLACE AND CURRENCY
Payments 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:-
(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.
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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) 3p.m. on the
Business Day prior to, or (in the case of any amount denominated in an
Option 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.
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.
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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.
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 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
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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 to the appropriate authority.
13.5 TAX SAVING
(a) In the event that, following the imposition of any Applicable Tax on any
payment by 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.
(b) Nothing contained in this Agreement shall interfere with the right of any
Finance Party to arrange its Tax and other affairs in whatever manner it
thinks fit and, in particular, no 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.
(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.
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 to such Finance Party under the Finance
52
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 Xxxxxxx Xxxxx Credit Partners L.P.) confirms
to the Company that it is a Recognised Bank and agrees to notify the
Company 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 Bank proposing to be a Recognised Bank by virtue of paragraph (c) of
the definition of Recognised Bank in Clause 1.1 shall submit 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 as promptly as practicable after becoming a party hereto
and, if such form is returned to such Bank by such tax authority, shall
then promptly submit such form to the United Kingdom Inland Revenue (FICO
Dept). If a Bank is or becomes unable for any reason to submit such form
or a Bank becomes aware that such a form previously submitted by it is no
longer valid or becomes incorrect for any reason, such Bank shall notify
the Company as promptly as practicable.
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, the Company (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 the Company 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
the Company 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, the
Company 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, the Company 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 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
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
55
(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 the Company 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 the Company)
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 the Company 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 to comply with its obligations under Clause 13.8 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 on the overall net income of such Finance
Party's Facility Office imposed in the jurisdiction in which that
office is situate; or
56
(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 the Company through the Facility Agent, declare
that to the extent necessary to avoid any such illegality or breach of Laws
its obligations to the Company 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.
57
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 the Company and, upon the written
request of such Borrower, shall enter into discussions with the
Company 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 the Company, the Facility Agent will enter into
discussions with the Company 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 the Company 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 the
Company 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 the Company, 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 ADDITIONAL COST MITIGATION
If circumstances exist or arise in respect of a Bank which result in its
incurring, in relation to any Advance or overdue amount for any Interest
Period, an Additional Cost falling within paragraph (ii) of the definition
of Additional Cost in Clause 1.1, then at the request of the Company that
Bank shall enter into discussions with the Company with a view to
determining what mitigating action might be taken by that Bank, including
the possibility of a change in the Facility Office of such Bank. Without
prejudice to any other provision of this Agreement obliging the Obligors or
any of them, to pay, indemnify or otherwise compensate such Bank for such
Additional Cost, upon the written request of the Company, the Bank shall
take such steps as it considers reasonable and practical to mitigate and
remove such circumstances provided nothing in this Clause shall oblige any
Bank or the Facility Agent to take any step or action which it considers
may reasonably be expected to have an adverse effect upon its business,
operations, financial condition or Tax affairs.
58
17.3 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 surety (or similar in any applicable jurisdiction),
prompt performance by each other Obligor of all its payment
obligations 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 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.
59
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
(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
60
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
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.
18.7 NON-COMPETITION
Until all amounts which may be or become payable by any and all Obligors
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).
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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.
19. ADDITIONAL BORROWERS, GUARANTORS AND SECURITY
19.1 ADDITIONAL BORROWERS
(a) Bidco shall use reasonable endeavours to ensure that each of the members of
the Target Group identified in the Borrowings List as intended to become a
Borrower (or, where more than one member of the Bidco Group is identified
in respect of any particular Refinancing Debt, whichever of those members
is selected by Bidco to be the borrower of any funds borrowed to refinance
that Refinancing Debt) shall do so as promptly as practicable after the
Unconditional Date 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 (as therein
specified) borrowed by them, and that all conditions precedent applicable
under Schedule G, Part II in respect of the making of Utilisations by those
members of the Target Group shall be satisfied as promptly as practicable.
To the extent that the procedures set out in S.155-158 Companies Xxx 0000
need to be satisfied for that purpose, Bidco shall use reasonable
endeavours to procure that those procedures are satisfied.
(b) In order for any wholly-owned Subsidiary of Bidco to become a Borrower, it
and the Company (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 Target 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.
(c) Subject to Clause 19.1(d), upon execution of such Accession Agreement by
the relevant Subsidiary as Additional Borrower, the Company 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.
(d) The obligations of the Finance Parties to such Additional Borrower with
respect to the 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 Schedule G Part II.
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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 Schedule G Part III shall, as soon as the
procedures set out in section 155 et seq. Companies Xxx 0000 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 the Company for itself
and on behalf of the existing Borrowers and Guarantors) and (ii) delivering
to the Facility Agent each of the documents listed in Schedule G Part II,
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) The Company shall use its reasonable endeavours to ensure that any
procedures set out in Section 155 et seq. Companies Xxx 0000 required to be
completed to permit the companies identified in Schedule G Part III to give
such guarantees, to permit the members of the Target Group to enter into
the Intra Group Loan Agreement and to permit the Companies identified in
Schedule G Part III to accede to the terms of the Debenture as Chargors as
required by Clause 19.3(a) shall be implemented:
(i) if the requirements of S.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 Xxx 0000, promptly after the expiry of such period.
19.3 ADDITIONAL SECURITY
(a) The Obligors shall procure that (i) the Security Document specified in
Schedule G Part IV is executed and delivered to the Security Agent on or
before the Unconditional Date and (ii) as soon as the procedures set out in
section 155 et seq. Companies Xxx 0000 have been completed the companies
identified in Schedule G Part III accede to the terms of the Debenture as
Chargors (as defined therein).
(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 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.
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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(l), the Company and Bidco only) represents and warrants to each of the
Finance Parties (but, in the case of any Obligor other than the Company,
only in relation to itself and its Subsidiaries or Material Subsidiaries
(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 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 action to authorise the 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 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
64
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 the Target 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 pursuant thereto and/or (iii) the
continued carrying on of the business of the Target and the Company
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 Xxx 0000 (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 the
Company and Bidco'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
65
purposes of the Model were arrived at after careful
consideration and to the best of the Company and Bidco'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 upon 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
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 has 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 the Company in writing of an
Information Memorandum.) All material factual information contained
in the Information Memorandum was true (or, in the case of information
provided by any person other than the Company or Bidco or its or their
advisors or relating to the Target or any of its Subsidiaries, was
true to the best of the Company's or Bidco's knowledge and belief) in
all material respects at the date (if any) ascribed thereto in the
Information Memorandum or (if none) at the date of the relevant
component of the Information Memorandum. Any and all expressions of
opinion or intention and any projections contained in the Information
Memorandum were arrived at after careful consideration and to the best
of the Company's and Bidco's knowledge and belief (reasonable enquiry
having been made) were based on reasonable grounds. 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 the
Company or Bidco or its or their advisors or relating to the Target or
any of its Subsidiaries, to the best of the Company's or Bidco's
knowledge or belief) was not misleading in any material respect and
did not omit to disclose any matter failure to disclose which would
result in any material information contained in the Information
Memorandum being misleading in any material respect in the context of
this Agreement.
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(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
s.429 et seq. Companies Xxx 0000 or by transfer from Riki) will be
beneficially owned by Bidco and Bidco will be entitled forthwith (but
subject to registration in the shareholders' register of the Target 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 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 any way 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
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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
Company 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
(whether in respect of any site previously or currently owned or
occupied by any member of the Company 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) THE COMPANY AND BIDCO: 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 the Company nor Bidco will have
any material commitments or indebtedness.
(q) LICENCE:
(i) Each Licenceholder has been duly authorised by:
(A) the Secretary of State under Section 6 of the Act to
generate and/or distribute and/or supply (as appropriate in
each case) electricity; and/or
(B) the Director General of Gas Supply under Section 7 or 7A of
the Gas Act to transport and/or ship and/or supply (as
appropriate) gas,
and such Licences are in full force and effect;
(ii) no Licenceholder is in contravention of:
(A) any term or condition of any Licence; or
(B) any requirement of the Act and/or the Gas Act or any
regulations made thereunder; or
(C) any other statutory requirement or any final order or
confirmed provisional order made under the Act and/or the
Gas Act; or
(D) any undertaking given by it to the Director-General or the
Director General of Gas Supply or the Secretary of State in
relation to the conduct of its business as a generator of
electricity or, as a public electricity supplier or as a
public gas supplier (as the case may be),
the contravention or consequence of which is reasonably likely
to have a Material Adverse Effect;
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(iii) none of the Director-General, the Director General of Gas Supply
or the Secretary of State has given notice to revoke a Licence
except where a replacement licence is to be granted to a member
of the Target Group or (after the Unconditional Date) the Bidco
Group in its place (if such replacement Licence is 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);
(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:
(i) 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.
(ii) The Structure Memorandum contains descriptions which (insofar as
they relate to it and its Subsidiaries or any joint venture) in
all material respects are true, complete and correct, of the
corporate ownership structure of the Group (including details of
any minority shareholders in any member of the group held by any
person who is not a member of the Group).
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 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 the Company or Bidco 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
the Company and Bidco.
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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 the Company, are given only in relation to itself and its
Subsidiaries.
21.2 INFORMATION AND ACCOUNTING STANDARDS
(a) ACCOUNTS: The Company 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 120 days thereof) the audited
consolidated accounts of itself and of the Bidco 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 Bidco,
consolidated) balance sheet and profit and loss account and in the
case of the Bidco Group, cash flow statement for such Accounting
Period;
(ii) 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, a profit and loss statement, balance sheet and
cash flow statement for such quarterly Accounting Period in the form
customarily prepared by management, and 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, the unaudited
consolidated accounts of the Bidco Group for such quarterly
Accounting Period showing at least the detailed information necessary
to determine Bidco'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 as at the date of such certificate no Default has occurred
and is then continuing which has not
70
previously been waived pursuant to a Waiver Letter or providing
details of any such Default 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 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 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
Company 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 Bidco 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 Bidco 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:
(A) the Unconditional Date had occurred on the first day of the first
of those three pro forma Accounting Periods (and as if Bidco had
then been in existence);
(B) 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).
(b) NOTIFICATIONS: The Company shall furnish or procure that there shall be
furnished to the Facility Agent in sufficient copies for each of the
Banks:-
71
(i) promptly, all notices, reports or other documents despatched by the
Company and by Bidco to their respective shareholders (in their
capacity as shareholders convening or concerning shareholders
meetings or to which they are entitled by statute or under the
Company's or Bidco's (as the case may be) Articles of Association)
generally (or any class of them);
(ii) promptly after becoming aware of the same being instituted or
threatened and, in the case of (I) or (II) below, that the same
would, if adversely determined, (A) have a Material Adverse Effect or
(B) involve any such liability as is referred to in (II) below,
details of any litigation, arbitration or administrative proceedings
involving it or any of its Subsidiaries which, if adversely
determined, would (I) have a Material Adverse Effect or (II) involve
liability or potential liability or alleged liability in excess of
(Pounds)5,000,000 or its equivalent in other currencies or which
involves the Director General, the Secretary of State, any Licence
held by any member of the Company Group or any Licence Undertaking;
(iii) promptly, such further information regarding its financial condition,
business and assets and that of the Company 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);
(iv) promptly, upon being notified of the same, details of all transfers
of shares by any member of the Company Group in the share capital of
any Obligor, and details of any issue or transfer of shares in the
capital of any Material Subsidiary made by any member of the Company
Group after the date hereof to any person who is not a member of the
Bidco Group;
(v) written details of any Default promptly after becoming aware of the
same, and of any remedial steps being taken and proposed to be taken
in respect of that Default;
(vi) during the period from the date of issue and approval by the Company
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 the Company by the Facility Agent, the Company will
notify the Facility Agent in reasonable detail of any matters
(whether occurring prior to or after the date of 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 the Target) cause the Information Memorandum
taken as a whole when read without knowledge of such matters to be
inaccurate or misleading in any material respect;
(vii) 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;
72
(viii) promptly upon Energyco and/or the Company making any filing with
the Securities and Exchange Commission, a copy thereof;
(ix) or to the English legal advisers to the Facility Agent, the Offer
Document and each draft of the Offer Document produced on or after
the date of the Press Release and delivered to the Target; and
(x) 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: Bidco 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) Bidco 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
Bidco Group shall end on an Accounting Date;
(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 Bidco
Group will change its financial year end (other than to an
Accounting Date in December) without the prior written consent of
the Facility Agent.
(d) ACCOUNTING STANDARDS: Bidco will ensure that all Consolidated Accounts of
the Bidco 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 Bidco 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, the Company 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 Bidco agree, such departure shall become
part of the Applicable Accounting Principles. If the Majority Banks and
Bidco do not so agree, the Facility Agent and Bidco 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
73
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 Bidco 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 Bidco 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 Company Group will, create or permit to subsist any
Encumbrance on the whole or any part of its respective present or future
business, assets or undertaking, 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;
(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 Company 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) 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 Bidco Group and existing at the date of their acquisition but
not created in contemplation of their acquisition, provided that the
principal amount secured by any such Encumbrances is not prohibited
by Clause 21.4 and shall not be increased beyond the amount secured
thereby at the date of such acquisition;
(vi) Encumbrances over credit balances on accounts of members of the Bidco
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 Bidco 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,
74
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 Derivatives Transactions permitted by the
terms hereof to be undertaken provided that the aggregate of such
deposits shall not at any time exceed (Pounds)10,000,000 or the
equivalent in other currencies;
(ix) the right of a counterparty to two or more Derivative Transactions
effected with the same member of the Bidco 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 Bidco Group) securing only the unpaid purchase price of goods
supplied;
(xi) any Encumbrance created by or over the shares in the capital of a
Project Finance Subsidiary to secure its Project Finance Borrowings
or recourse to the holder of such shares;
(xii) any Encumbrance expressly disclosed against this undertaking in
writing addressed to the Banks prior to the date hereof;
(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 over cash providing cash collateral as referred to
in and for the purposes identified in Clause 2.2(g); and
(xv) Encumbrances (other than over the Shares and shares in the capital
of a member of the Company Group) not otherwise permitted pursuant
to paragraphs (i)-(xiv) (inclusive) above together securing
indebtedness in an aggregate principal amount not exceeding
(Pounds)75,000,000 (or its equivalent in other currencies).
(b) TRANSACTIONS SIMILAR TO SECURITY: No Obligor will, and each Obligor will
procure that no member of the Company Group will, save as permitted by a
Waiver Letter:
(i) sell or otherwise dispose of any of its assets on terms where such
asset may be leased to or re-acquired by any member of the Bidco
Group other than to the extent that such transaction (if structured
as a Borrowing secured by an Encumbrance on such asset) could take
place without causing or increasing any breach of either of Clauses
21.3(a) and 21.4; or
75
(ii) 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 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 Company Group will, save as permitted by a Waiver Letter 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 Amazon Electricity 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 Bidco Group, (I) the gross value of which (based,
in relation to disposals 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 Bidco Group most recently delivered to the Facility Agent)
when aggregated with all other disposals by each member of the
Bidco 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 gross value of the assets
of the Bidco Group as shown in such Accounts and (II) in
respect of which the Net Proceeds of such disposal will be
applied (A) within 12 months of the date of such disposal in or
towards acquiring for any member of the Bidco 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) transfers 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 (on arm's length terms) or securitisation (on
normal market terms) of customer account receivables of Amazon
Electricity on a non-recourse basis (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);
76
(G) disposals by one member of the Bidco Group to another member of
the Bidco Group;
(H) disposals of assets not otherwise permitted pursuant to
paragraphs (A)-(G) above or (I)-(K) 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 (Pounds)50,000,000 (or its
equivalent in other currencies);
(I) the Asset Split and all such other matters as are contemplated by
the Structure Memorandum;
(J) the disposal of Citizens;
(K) disposals permitted pursuant to Clause 21.3(b)(i).
All disposals (save those permitted pursuant to paragraphs (D), (F)
(in the case of securitisations on normal market terms only) or (G))
shall be made on arm's length terms or on terms more favourable to the
Bidco Group.
(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) BORROWINGS:
(i) The Company will procure that the aggregate Borrowings of the Target
and its Subsidiaries taken together on a consolidated basis (including
the amount of any Borrowings thereof permitted pursuant to Clause
21.4(b) and (c) and giving effect to the proviso to the definition of
Borrowings in Clause 1.1) outstanding at any one time will not exceed
the sum of the following:
(A) the outstanding principal amount from time to time of any Tranche
2 Utilisations made by such companies and any Tranche 1
Utilisations drawn by such companies and applied for the purposes
contemplated in Clause 3.1(a)(i)(B), (ii)(A) and (iii);
(B) the principal amount of all Borrowings of such companies
outstanding at the Unconditional Date and disclosed in the
Borrowings List until refinanced by Tranche 1 Utilisations or by
Tranche 2 Utilisations made by such companies;
(C) the outstanding principal amount from time to time of all
Borrowings where the creditor and debtor of such Borrowings are
members of the Bidco Group;
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(D) Borrowings to the extent covered by a Documentary Credit made
available under this Agreement;
(E) (Pounds)75,000,000 (or its equivalent in other currencies) or
such higher amount (if any) as may be permitted by a Waiver
Letter;
(F) Project Finance Borrowings;
(G) Borrowings incurred to refinance the Facilities in full and
discharge all outstanding liabilities under the Finance
Documents in a principal amount (when aggregated with all
amounts permitted to be outstanding under paragraph (iii)(G)
below) of not less than the amount required to do so; and
(H) any guarantees, indemnities and like instruments permitted to
exist pursuant to Clause 21.4(b) which constitute Borrowings.
(ii) The Company will procure that the members of the Bidco Group do not
incur Borrowings of such amounts as result in the Company failing to
be in compliance with Clause 23.1.
(iii) The Company, Finance and Bidco shall not incur any Borrowings other
than:
(A) under this Agreement;
(B) Subordinated Debt and the Coalco/Bidco Loan;
(C) under the Energyco/Company Loan Agreement;
(D) Borrowings to the extent covered by a Documentary Credit made
available under this Agreement;
(E) in the case of Bidco, where the other party to such Borrowing is
a member of the Bidco Group;
(F) in the case of Borrowings incurred by the Company or Finance as
debtor, where the creditor is Bidco and the loan has been made
in compliance with the terms of Clause 21.6;
(G) Borrowings incurred to refinance the Facilities in full and
discharge all outstanding liabilities under the Finance
Documents in a principal amount (when aggregated with all
amounts permitted to be outstanding under paragraph (i)(G)
above) of not less than the amount required to do so;
(H) those represented by the loan notes referred to in the Offer.
(b) THIRD PARTY GUARANTEES: No Obligor will, and each Obligor will procure
that no other member of the Company Group will, incur or permit to be
outstanding, 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, other than any such Borrowing arising under (A) the Finance
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Documents, or (B) 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 (C) any guarantee, indemnity 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 (D) the Gas Framework Agreement, or (E)
arrangements created to facilitate the operation of accounts of members of
the Bidco Group and other accounts of members of the Bidco 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
(F) (to the extent such guarantees are outstanding in respect of Borrowings
referred to in paragraph (I) under the heading Citizens Power LLC in the
Borrowings List) guarantees by the Target in respect of obligations of
Citizens existing at the Unconditional Date not exceeding an aggregate
principal amount of $310,000,000, provided that such guarantees by the
Target shall, unless otherwise agreed by the Majority Banks, be released
within 270 days after the first Utilisation Date (G) guarantees by the
member of Target 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 (F) above.
21.5 LOANS OUT
No Obligor will, and each Obligor will procure that no member of the
Company 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 Bidco Group to another member of the
Bidco Group the proceeds of which are used in the ordinary course of
the business of the borrower carried on in compliance with the terms
of this Agreement;
(d) loans made to trade customers of the Bidco Group in the ordinary
course of business the purpose of which is to facilitate trade between
such customers and members of the Bidco Group;
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(e) Borrowings not otherwise permitted pursuant to paragraphs (a) - (d)
above in an aggregate amount for the Bidco Group as a whole at any
time outstanding not exceeding (Pounds)20,000,000 (or its equivalent
in other currencies);
(f) finance leases entered into in the ordinary course of business;
(g) any Borrowing between Bidco as creditor and the Company or Finance as
debtor which is permitted under Clause 21.6;
(h) any Borrowing between Finance as creditor and the Company as debtor
(or vice versa);
(i) any Borrowing between the Company as creditor and Energyco as debtor;
(j) any Borrowing between the Company or Finance as creditor and Bidco as
debtor constituting Subordinated Debt.
21.6 DISTRIBUTIONS, SUBORDINATED DEBT AND SHARE CAPITAL
(a) Bidco 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
Bidco (or any class of its share capital) or distribute any dividend
or share premium reserve of Bidco; or
(iii) pay (other than to a member of the Bidco 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 Bidco 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 Bidco
Group in consequence of such payment; or
(iv) make any loans to Energyco or any Affiliate thereof which is not a
member of the Bidco Group; or
(v) redeem, repurchase, defease, retire, return or repay any of its share
capital or resolve to do so other than where such redemption,
repurchase, defeasement, retirement or repayment occurs between
members of the Bidco Group; or
Provided that:
(A) Bidco may pay in cash Subordinated Payments; and
(B) Bidco may declare and pay in cash Dividends; and
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(C) Bidco may make loans to the Company or Finance (the "COMPANY LOANS");
and
(D) Bidco may pay any Excess Amount; and
(E) Bidco may redeem, repurchase, defease, retire, return or repay any of
its share capital (a "REDEMPTION PAYMENT")
(such Subordinated Payments, Dividends, Company Loans, Redemption Payments
and Excess Amounts together being the "DISTRIBUTIONS") in accordance with
and subject to Clause 21.6(b) or (f)(ii) of this Agreement and/or Clause
7.2 of the Intercreditor Agreement.
(b) Subject to the provisos below, Bidco shall be entitled 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 Bidco for that
quarterly Accounting period (accompanied by a certificate as referred to in
Clause 22.2(a)(iv)) in an amount equal to:
(i) if at all times during that quarterly Accounting Period Bidco has
maintained and does also on the proposed payment date maintain senior
long term debt ratings of BBB - or better (from Standard & Poor's
Rating Group) and Baa3 or better (from Xxxxx'x Investor Services
Group) (both ratings being required contemporaneously), fifty per
cent. (50%) of Adjusted Net Income for that quarterly Accounting
Period; or
(ii) if either or both of such debt ratings were not maintained at any
relevant time, twenty five per cent. (25%) of Adjusted Net Income for
that quarterly Accounting Period;
PROVIDED THAT notwithstanding the foregoing:
(A) 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 70% 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 Bidco during the quarterly Accounting Period in
which such Distribution is paid and the three immediately preceding
quarterly Accounting Periods shall not exceed the Sterling Equivalent
of $75,000,000;
(B) 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) for the purposes of applying provisos (A) and (B) above in respect of
any proposed payment of a Distribution, the amount of such
Distribution shall be deemed paid on, and (to the extent that Adjusted
Capital and Reserves have not already been reduced on
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account thereof) shall be deducted in calculating Adjusted Capital and
Reserves as determined on, the last Accounting Date prior to the date
for payment.
(c) CERTIFICATION OF PAYMENT AMOUNTS
Where any payment of Distributions is proposed to be made, Bidco shall,
prior to making such payment, provide to the Facility Agent not less than
10 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) OVERPAYMENT OF DISTRIBUTIONS
(i) If the Accounts delivered to the Facility Agent pursuant to Clause
21.2(a)(ii) with respect to any quarterly Accounting Period during
which a payment of Distributions has been made show that the
requirements of Clause 21.6(b) have not been met with respect to such
payment (when tested by reference to such Accounts) the amount (the
"QUARTERLY EXCESS PAYMENT") by which the aggregate payment exceeded
that which could have been made while satisfying the requirements of
Clause 21.6(b) (when so tested) shall be applied in reduction of the
amount of Distributions otherwise permitted to be paid in respect of
subsequent period(s) by Clause 21.6 until the amount of such Quarterly
Excess Payment shall have been so applied in full.
(ii) If the annual audited Accounts delivered to the Facility Agent
pursuant to Clause 21.2(a)(i) with respect to any annual Accounting
Period during which a payment of Distributions has been made show that
the requirements of Clause 21.6(b) have not been met with respect to
such payment (when tested by reference to such audited accounts
instead of the relevant quarterly management accounts), the amount
(the "ANNUAL EXCESS PAYMENT") by which the aggregate payment exceeded
that which could have been made while satisfying the requirements of
Clause 21.6(b) (when so tested) shall be applied in reduction of the
amount of Distributions otherwise permitted to be paid in respect of
subsequent period(s) by Clause 21.6 until the amount of such Annual
Excess Payment shall have been so applied in full.
(e) TIMING OF CERTAIN DISTRIBUTIONS
Without prejudice to the restrictions set out in the foregoing provisions
of this Clause 21.6 relating to Distributions, the Company shall ensure
that payments (other than to any member of the Bidco Group) pursuant to the
Tax Sharing Agreement are not made earlier than is provided for in the Tax
Sharing Agreement.
(f) SHARE CAPITAL AND DEBT
The Company will not, and no Obligor will, and each Obligor will procure
that no other member of the Company Group will, save as permitted by a
Waiver Letter:
(i) save as contemplated by the Structure Memorandum, issue any new share
capital or grant any option to any person to subscribe for any shares
in its capital:
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(aa) save that Finance may issue to the Company and/or Bidco 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 Bidco (as the case may be)) and save also
that the Company 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 the Company; and
(bb) save that any member of the Bidco Group may issue share capital
to another member of the Bidco 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 the Company 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/Company Loan Agreement and/or the
Company/Bidco Loan Agreement and/or the Xxxxx Global Subordinated Loan
Note and/or in respect of any Subordinated Debt other than as
permitted pursuant to Clause 21.6(a) and (b) and the terms of the
Intercreditor Agreement and, with respect to the Xxxxx Global
Subordinated Loan Note, interest may be paid to the extent that Xxxxx
Global has declared or will promptly declare a dividend payment at
least equal to the proceeds of such interest payment.
21.7 ENVIRONMENTAL MATTERS
Each Obligor will and will procure that each member of the Company 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 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 Company Group
will, insure and keep insured all its property and assets (including those
taken on 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
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procure that each member of the Company 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 Bidco 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 Bidco 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.
The Company 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 Companies Xxx 0000; and
(b) as soon as the procedures set out in Section 155 et seq Companies
Xxx 0000 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 Xxx 0000 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).
The Company shall ensure that any renegotiated terms applicable to any
Refinancing Debt (other than that denominated according to the Borrowings
List in the currency of the Czech Republic) 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 Bidco.
21.10 GENERAL UNDERTAKINGS
(a) CHANGE OF BUSINESS: No Obligor will, and each Obligor will procure that
no other member of the Company 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 and generation, and business activities related to the gas,
telecommunications and water industries or the energy or energy related
business) provided that any member of the Company Group may continue to
carry on any business which it carries on as at the date hereof.
(b) MERGERS: No member of the Company Group shall enter into any merger or
consolidation with any other person, save that (i) members of the Bidco
Group may do so with other members of the Bidco 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 with the
Company.
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(c) HOLDING COMPANY: Save as permitted by a Waiver Letter, none of the
Company, Finance or Bidco shall carry on any business (other than the
provision of administrative services to members of the Company 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 the Company, are shares in Finance or a share in
Bidco held as nominee for Finance or loans to Finance or Bidco or (to the
extent permitted by Clauses 21.5 and 21.6) Energyco, or (ii) in the case of
Finance, are shares in Bidco or loans to Bidco or the Company, or (iii) in
the case of Bidco, are Shares acquired in the Target by Bidco or loans to
any member of the Bidco Group or (subject to Clause 21.6) to the Company or
Finance, and in the case of (i), (ii) and (iii) and subject to Clause 2.6
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 Bidco immediately upon any
merger of it and the Target (whether by liquidation of the Target or
otherwise).
(d) ADMINISTRATION AND WINDING-UP ORDERS ETC.: No Obligor will, and each
Obligor will procure that no other member of the Company Group will, save
as permitted by a Waiver Letter, make or join in making any application to
any court for an administration, winding-up, receivership or other similar
order to be made in relation to any Obligor or Material Subsidiary, other
than in respect of a solvent winding-up or dissolution of a member of the
Company Group where such application or the granting of any such
application is made to effect a merger of two companies permitted under the
terms of Clause 21.10(b) or would not have a Material Adverse Effect.
(e) ARM'S-LENGTH TERMS: No Obligor will, and each Obligor will procure that no
other member of the Company 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 Company
Group to a member of the Bidco Group or by Bidco to the Company or Finance,
(ii) disposals by one member of the Company Group to a member of the Bidco
Group permitted by Clause 21.3(c), (iii) transactions entered into on terms
more favourable to a member of the Bidco 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, (v) other transactions
between members of the Bidco Group not otherwise prohibited by the terms of
this Agreement, (vi) the Asset Split and (vii) the Coalco/Bidco Loan
Agreement and (viii) disposal by Xxxxx Investments to Coalco or any of its
subsidiaries of net proceeds of any disposal of Citizens.
(f) AMENDMENTS TO DOCUMENTS: No Obligor will, and each Obligor will procure
that no other member of the Company 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.
(g) CONSTITUTIONAL DOCUMENTS: No Obligor will, and each Obligor will procure
that no other member of the Company 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 Company 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 Xxxxxxx x. Northern
-------------------
Bank Development Corporation Limited & Ors) against any Obligor it shall
-------------------------------------------
not be given by that Obligor.
85
(h) COMPLIANCE WITH LAWS: Each Obligor will, and will procure that each other
member of the Company 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.
(i) CONSENTS: Each Obligor will, and will procure that each other member of
the Company 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 the 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.
(j) PENSION SCHEMES: The Company shall procure that all pension schemes
maintained by or for the benefit of any member of the Company 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 actuaries of recognised standing, being rectified in accordance
with such governing provisions.
(k) SYNDICATION: The Company shall ensure that such members of the Company
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 and, in each case
until the earlier of conclusion of the general syndication (as notified to
the Company by the Facility Agent) or the date falling six months after the
Unconditional Date.
(l) LICENCE UNDERTAKINGS
The Company shall procure that on and from the Unconditional Date each
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
86
(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) take all appropriate steps efficiently to perform and discharge the
duties and functions of a public gas transporter, shipper and/or
supplier in accordance with the provisions of the Gas Act and, in
particular, to comply with:
(A) the terms and conditions of the Licence; and
(B) the provisions of any final order or confirmed provisional order
made under the Gas Act,
where failure to take all appropriate steps would have or would be
reasonably likely to have a Material Adverse Effect;
(iii) not consent to any material amendment to the terms and condition 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 electricity
industry or gas industry (as the case may be) as a whole, within 30
days the Company and the Facility Agent (on behalf of the Banks), have
not agreed new terms for this Agreement acceptable to the Majority
Banks, within 30 days the Company and the Agent (on behalf of the
Banks) have not agreed new terms for this Agreement acceptable to the
Majority Banks;
(iv) not consent to any revocation of any Licence except where a
replacement licence is to be granted to a member of the Bidco Group in
its place (if such replacement Licence is 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);
(v) promptly and in any event not less than 10 Business Days prior to it
so doing, inform the 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;
(vi) promptly supply to the Facility Agent:
(A) certified copies of all notices or orders served on it by the
Director General or the Director General of Gas Supply or the
Secretary of State in exercise of the powers conferred on him by
the Act and/or the Gas Act (as the case may be);
(B) details of any references relating to it to the Monopolies and
Mergers Commission; and
(C) details of the exercise or purported exercise by the Secretary of
State or the Director General or the Director General of Gas
Supply of the powers conferred on them by the Fair Trading Xxx
0000, the Competition Xxx 0000,
87
Section 12 of the Act and/or Section 24 of the Gas Act relating
to it or any business carried on by it and regulated thereby;
(vii) 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
(viii) not permit any person other than a member of the Bidco Group to
perform or manage on its behalf any of its functions as a public
electricity and/or gas supplier, as set out in the relevant Licence
and the Act (in the case of electricity) or the Gas Act (in the case
of gas.
(m) OFFER DOCUMENT: Upon reasonable notice being given by the Facility Agent
and at its reasonable request, the Company shall procure that Bidco shall
explain or give details of any item in any draft of the, or 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 the Target and/or the Target Group).
(n) OFFER TERMINATION DATE: Promptly upon the occurrence of the Offer
Termination Date Bidco shall give notice to the Facility Agent (who shall
notify the Banks of the same) that the same has occurred.
(o) SECTION 428: Promptly upon acquisition by it of 90% in value of the share
capital in Target to which the Offer relates, Bidco shall implement the
procedures set out in Section 429 of the Companies Xxx 0000 and use its
reasonable endeavours to acquire 100% of the issued share capital of Target
within 6 weeks of its implementation of such procedure.
(p) HEDGING DOCUMENTS: The Company will effect the interest rate hedging
transactions described in the letter referred to in Clause 4.1(d) in
amounts, and by the times contemplated in such letter.
(q) STRUCTURE MEMORANDUM: As soon as permitted by relevant law after the
Unconditional Date the Company shall procure that:
(i) the American Depositary Shares in the capital of the Target shall be
delisted from the New York Stock Exchange and shall be converted to
ordinary shares in the capital of the Target; 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.
(r) ASSET SPLIT: The Company will procure that within 270 days of the first
Utilisation Date the Asset Split shall have occurred.
22. THE OFFER
(a) Each of the Company and Bidco undertakes that:
88
(i) without the prior agreement of the Majority Offer Banks (such
agreement being conclusively evidenced by a written notice from the
Facility Agent to the Company and, in the case of sub-paragraphs (A)
and (C), not to be unreasonably withheld or delayed) neither Bidco
nor, in respect of sub-paragraph (C) only, the Company 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 Bidco and the Banks
from time to time;
(C) issue or allow to be issued any press release or other publicity,
the text of which has not been previously agreed with the
Arrangers, which makes reference to the Facilities or to some or
all of the Finance Parties unless the publicity is required by
law, the Code or any stock exchange (in which case the Company or
Bidco (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 Xxx 0000, the Companies Xxx 0000 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 Bidco and/or its
advisers pursuant to the Code) and such other matters relevant to the
Offer as the Facility Agent may reasonably request.
(b) Bidco undertakes that, without the prior agreement of the Majority Offer
Banks, Bidco will not decide, declare or accept that valid acceptances in
respect of less than 90 per cent. in nominal value of Amazon 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
their agreement if it is shown to their reasonable satisfaction that Bidco
will achieve acceptances sufficient to enable it to give notice under
section 429 of the Companies Xxx 0000 in relation to the shares to which the
Offer relates.
(c) Bidco 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 Target 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 Target Group's licences
under the Gas Xxx 0000 or the Electricity Xxx 0000 proposed in
connection with the Offer;
89
(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
accepted in connection with the acquisition of other regional electricity
companies in the UK 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 Bidco Group to comply with its
material obligations under the Finance Documents, Bidco 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), (j) and (l) in Appendix 1 to the Press Release is
relevant. If the Panel gives a confirmation substantially in those terms,
Bidco shall at the earliest opportunity declare the Offer lapsed by reason
of the non-fulfilment of such condition(s).
(d) If Bidco 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 Bidco (with the Panel's consent, if
needed) to lapse the Offer, Bidco shall promptly notify the Facility Agent
and, if the Majority Offer Banks, acting reasonably, state that in their
opinion such circumstance or event would materially and adversely affect
the ability of the Bidco Group to comply with its material obligations
under the Finance Documents, Bidco 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, Bidco 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
The Company and Bidco will procure that:-
(a) CONSOLIDATED NET TOTAL BORROWINGS TO THE SUM OF ADJUSTED CAPITAL AND
RESERVES AND CONSOLIDATED TOTAL NET 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 Total Net Borrowings on such
Accounting Date, where Y has the value indicated for such Accounting
Date in such table:-
PERIOD Y%
Unconditional Date to 00
00xx Xxxxx, 0000
0xx Xxxxx, 0000 to 31st December, 1998 76
90
1st January, 1999 to 31st December, 1999 75
1st January, 2000 to 31st December, 2000 74
1st January, 2001 to 31st December, 2001 72
1st January, 2002 to Final Repayment Date 70
(b) CONSOLIDATED EBITDA TO CONSOLIDATED TOTAL NET INTEREST PAYABLE:
Consolidated EBITDA for any period comprising an annual Accounting
Period of Bidco or four (taking into account the provisions of Clause
23.2) consecutive quarterly Accounting Periods of Bidco (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)
31st December, 1997 2.3
31st March, 1998 2.3
30th June, 1998 2.3
30th September, 1998 2.3
31st December, 1998 2.3
31st March, 1999 2.3
30th June, 1999 2.3
30th September, 1999 2.3
31st December, 1999 2.3
31st March, 2000 2.5
30th June, 2000 2.5
30th September, 2000 2.5
31st December, 2000 2.5
31st March, 2001 2.7
30th June, 2001 2.7
30th September, 2001 2.7
31st December, 2001 2.7
31st March, 2002 2.7
30th June, 2002 2.7
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 21.1(a)(vi) and Accounts delivered to the Facility
Agent pursuant to Clause 21.2(a)(ii).
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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 under any Finance Document at the place, in the currency
and in the funds 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
(Financial Undertakings); 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 and, if such failure is
capable of remedy within such period, such Obligor shall have
failed to remedy such failure within 14 days after the earlier
of the relevant Obligor becoming aware of such default (provided
that such 14 day period shall be suspended from the date on
which any Obligor notifies the Facility Agent of such failure,
to the date on which the Facility Agent confirms to the relevant
Obligor that such remedy is required) and 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) (Dividends) or 21.6(f) (Share Capital), or any of the
things prohibited in Clause 21.10(g) (Constitutional Documents)
shall be done to or by any Obligor, whether or not (having
regarding to the rule in Xxxxxxx x. 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 14 days after
the earlier of the relevant Obligor becoming aware thereof
(provided that such 14 day period shall be suspended from the
date on which any Obligor notifies the Facility Agent of such
thing, to the date on which the Facility Agent confirms to the
relevant Obligor such remedy is required) and receipt by the
relevant Obligors of written notice from the Facility Agent to
such Obligor requiring the thing to be remedied; or
92
(c) MISREPRESENTATION/BREACH OF WARRANTY: any representation, warranty or
statement made or repeated by or on behalf of any Obligor, in any
Finance Document or in any certificate or statement delivered by or on
behalf of any Obligor or other member of the Company 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 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 that 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
(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 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) of a
member or any members of the Company Group (taken together)
aggregating (Pounds)30,000,000 (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) of any
member or members of the Company Group (taken together)
aggregating (Pounds)30,000,000 (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
93
(iii) If funds aggregating (Pounds)30,000,000 (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) aggregating
(Pounds)30,000,000 (or its equivalent in other currencies) or
more of any member or members of the Company 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 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
94
of its assets with a value in excess of (Pounds)30,000,000 (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 Xxxxxxxxxx Xxx, 0000; or
(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 (Pounds)30,000,000 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 law or 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 or amalgamation permitted under this
Agreement or approved pursuant to a Waiver Letter or and 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)) which would not have a Material
Adverse Effect); 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 Xxxxxxx
and any of its Affiliates acquires control (as defined in Section 416
of the Income and Corporation Taxes Act 1988) of the Company; 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
95
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, 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 Bidco 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 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
electricity industry as a whole, within 30 days the Company 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 is granted to a member of the Bidco 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 electricity industry as a whole,
within 30 days the Company and the Facility Agent (on behalf of
the Banks) have not agreed new terms for this Agreement
acceptable to the Majority Banks; or
96
(s) GAS FRAMEWORK AGREEMENT: Target or any other member of the Bidco Group
ceases to be a party to the Gas Framework Agreement except where
another member of the Bidco Group becomes a party to that agreement in
its place or
(t) COMPLIANCE WITH ACT: Any member of the Bidco 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
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
(u) POOLING AND SETTLEMENT AGREEMENT: any notice requiring Target to
cease to be a party to the Pooling and Settlement Agreement is given
to Target or any member of the Bidco Group under Clauses 60.1.3 or
60.2.2 of the Pooling and Settlement Agreement or Target or any member
of the Bidco Group otherwise ceases to be a party to the Pooling and
Settlement Agreement save where another member of the Bidco Group
becomes a party in its place; or
(v) INTERCREDITOR AGREEMENT:
(i) any Affiliate of the Company (other than a member of the Company
Group) party thereto fails to comply with any provision of the
Intercreditor Agreement or the Coalco 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 the Company (other than a member of
the Company Group) party thereto, in the Intercreditor Agreement
or in the Coalco Intercreditor Agreement or in any certificate or
statement delivered by or on behalf of any Obligor or other
member of the Company Group under or in connection with the
Intercreditor Agreement or in the Coalco 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 that 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
97
(iii) any of the Intercreditor Agreement or the Coalco 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 obligation of any
Affiliate of the Company (other than a member of the Company
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 Coalco Intercreditor Agreement
(taken as a whole) or it shall be unlawful for any such Affiliate
to perform any of its material obligations under the
Intercreditor Agreement or in the Coalco 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 interests of the Banks under the Finance Documents (taken as a
whole) shall be materially prejudiced thereby; or
(w) MATERIAL ADVERSE EFFECT: any event or series of events whether related
or not occurs which has a Material Adverse Effect; or
(x) 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(b)(F)
shall not be discharged or released within 270 days of the first
Utilisation Date.
24.2 SANCTIONS
Subject, where applicable, to Clause 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 the Company:-
(a) declare that 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, provided that until all the Shares have
been acquired pursuant to the Offer and/or the procedure set out in
Section 428 et seq. Companies Act, 1985 or the Offer Termination Date
has occurred this power shall not be exercised so as to result in (i)
the maximum aggregate amount from time to time remaining to be paid
(on the assumption that all outstanding Shares will be acquired) to
accepting shareholders pursuant to the Offer and/or pursuant to
procedures implemented or to be implemented under Section 428 et seq.
Companies Xxx 0000 and
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to the Optionholders under the proposals referred to in Clause
3.1(a)(i)(B), less (ii) the amount (if any) by which the aggregate
amount paid to Bidco by the Company in cash for share capital and
Subordinated Debt and all Matching Amounts capable of being drawn
pursuant to the Coalco/Bidco Loan Agreement from time to time exceeds
the amount which has actually been paid to accepting shareholders
pursuant to the Offer from time to time and/or used for any other
purpose referred to in Clause 3.1(a)(i)(B) or (C) or (ii), exceeding
(iii) the amount of the undrawn Commitments the proceeds of drawings
of which are capable in accordance with Clause 3.1 of being applied in
payment to accepting shareholders in the Target pursuant to the Offer
and/or for any other purpose referred to in Clause 3.1(a)(i)(B) or
(C); 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 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.
No Finance Party shall be entitled to enjoin 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 as contemplated hereby and in accordance with Clauses 4.2 and 22
(other than Clauses 22(a)(i)(C), (ii) and (iii)) hereof.
24.3 CLEAN UP PERIOD
If during the period ending on the date three months from the Unconditional
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 the Target 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) the Company or Bidco or the Target shall notify the Facility Agent of
that fact by fax promptly after becoming aware thereof, giving a
reasonable description of:
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(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 the Company and/or Bidco and/or the Target 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) the
earlier of:
(i) the date three months after the Unconditional Date; or
(ii) the date on which, as a direct consequence of it being
reasonably likely that a Material Adverse Effect would result
from such Potential Event of Default or from the effects thereof
or from the continued inaction by the Facility Agent and the
Banks as regards the exercise of rights under this Agreement,
the Facility Agent on the instructions of the Majority Banks has
confirmed in writing to the Company that it is so reasonably
likely; or
(iii) a Material Adverse Effect actually occurring as a direct
consequence of that Potential Event of Default.
Provided that (A) the foregoing shall not apply with respect to any
Potential Event of Default under any of Clauses 24.1(a), (b)(iii), (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), (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 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 the
Majority Offer Banks that such Potential Event of Default is likely to be
cured within three months after the Unconditional Date without any Material
Adverse Effect occurring.
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.
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(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 Clauses 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, charges 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.
25.3 INDEMNITY RELATING TO FACILITIES
(a) The Company 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 the Company 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 the Company under this Clause 25.3 promptly upon its
becoming aware of that potential claim; and
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(ii) if the Company 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 the Company 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 the Company
hereunder, as the Company may reasonably request.
(c) At the request of the Company, from time to time, each Finance Party will
discuss with the Company and will give careful consideration in good faith
to the views of the Company 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 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 the Company 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.
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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 each are intended to be of a mechanical and administrative
nature.
26.2 MAJORITY BANKS' 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.
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
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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 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 the
Company) a copy of any of the documents listed in Schedule G 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 the Company) 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.
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(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 the Facility 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.
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, judgements, 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.
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26.14 RESIGNATION
Each Agent may (after consultation with the Company) resign by giving
notice thereof to the Banks and the Company and may be removed by the
Majority Banks giving notice to that effect to such Agent and the Company
after prior consultation with the Company. In that event the Majority
Banks, with the consent of the Company where the relevant Agent has so
resigned (such consent not to be unreasonably withheld or delayed and the
Company shall be deemed to have consented if it has not given notice
refusing consent within 14 days of any request for consent) and in any
event after consultation with the Company 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 the Company, 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 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.
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 the
Company) 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 the Company, nothing in this Clause 26.16(a) shall
authorise:-
(i) the extension of any Availability Period; or
(ii) any variation of the definition of "MAJORITY 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
106
(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.
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.
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26.18 BANKS
(a) Each Bank (other than Xxxxxxx Xxxxx Credit Partners L.P.) 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:
(i) either:
(A) not resident in the United Kingdom for United Kingdom tax
purposes; or
(B) 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) Bidco shall pay to the Facility Agent for each Bank a commitment fee
computed at the rate of zero point one zero (0.10%) 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) Bidco shall pay to the Facility Agent for each Bank a commitment fee
computed at the rate of 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 per annum 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 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) Bidco 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 Bidco and
countersigned by Bidco, to be distributed in the amounts and manner as
heretofore agreed between the Arrangers.
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(b) Bidco 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 Bidco and countersigned by Bidco.
(c) Bidco 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 Bidco and countersigned by Bidco.
27.3 DOCUMENTARY CREDIT ISSUANCE FEE
Each Borrower shall pay to the Facility Agent on the Utilisation Date in
respect of each Documentary Credit for the account of the relevant party
a fee of:
(a) (in the case of a Documentary Credit issued by the LC Bank) point
one two five per cent. (0.125%) flat calculated on the intended
maximum Outstanding Liability Amount of such Documentary Credit as
at the Utilisation Date payable to the LC Bank; or
(b) (in the case of a Documentary Credit issued by the Facility Agent on
behalf of all of the Banks severally in proportion to their Tranche
2 Commitments) an administration fee of (Pounds)1,000 to the
Facility Agent.
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 only case of Documentary Credits issued by the LC Bank) an
additional point one two five per cent. (0.125%) 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, the Company 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
109
any thereof which may be executed at any time after the date of this
Agreement), together in all cases with all value added and similar Taxes
applicable.
(b) Subject to Clause 27.5(c) below, the Company 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 within 12 months of the date hereof and the
execution of any further Finance Documents from time to time, together
with all 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)) the Company 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
The Company (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
other than if requested pursuant to Clause 2.6), together, in each case,
with all value added and similar Taxes applicable to the same.
27.7 STAMP TAXES
The Company 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 of 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
110
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.
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 Xxxxxxx by facsimile transmission at such
facsimile number as shall be notified in writing to the Facility Agent by
Xxxxxxx 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 Schedule A or
Schedule B, 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 ensure 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, a Bank (the "EXISTING BANK") may at any time
assign, transfer or novate any of its rights and/or obligations under
this Agreement to another bank or financial institution (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 the Company 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
(Pounds)10,000,000.
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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 (Pounds)10,000,000
as of the date immediately following the date of such transfer, provided
that this sub-paragraph shall not apply to any such transfers made
between Xxxxxxx Xxxxx International Bank and Xxxxxxx Sachs Credit
Partners L.P.
(b) 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 the
Company 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 the Company (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.
(c) 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.
(d) 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 (Pounds)750.
(e) 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 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.
(f) Each New Bank confirms to the Existing Bank and the other Finance Parties
that it:
(i) has made its own independent investigation and assessment of the
financial condition and affairs of 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;
112
(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.
(g) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a New Bank of any of the rights and/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 of its obligations under this Agreement
or otherwise.
(h) 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 a
duly completed certificate executed by the Existing Bank and the
New Bank, substantially in the form of Schedule D (a "SUBSTITUTION
CERTIFICATE"); and
(ii) the Facility Agent executes it.
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 Xxxxxxx
Sachs Credit Partners L.P. as Existing Bank and Xxxxxxx Xxxxx
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 Xxxxxxx Xxxxx Credit
Partners L.P. to Xxxxxxx Sachs International Bank and vice versa);
113
(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 Documents which differ from the
discharged rights only insofar as they are exercisable by or
against the New Bank instead of the Existing Bank,
all 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, the provisions of 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 the Company 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 the Company written notice of such Banks or Affiliates
having become Reference Banks as soon as practical thereafter. If a
Reference 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 the Company (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), 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 or (b) to any other location in any other jurisdiction
provided (in respect of any Bank other than Xxxxxxx Xxxxx Credit Partners
L.P.) it does not thereby cease to be a Recognised Bank.
30.7 INCREASED COSTS AND ILLEGALITY
(a) Subject as provided in paragraph (b) below, if any assignment, transfer
or substitution 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, substitution or
114
change in Facility Office. No such assignment, transfer, substitution or
change in Facility Office shall be made if the assignee, transferee or
substitute 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, transfer or substitution of or
with respect to the rights or obligations of the Original Banks, provided
that the same is effected by the Original Banks within twelve months from
the date of this Agreement, or (ii) with respect to any assignment,
transfer or novation from Xxxxxxx Xxxxx Credit Partners L.P. to Xxxxxxx
Sachs International Bank and, or (iii) with respect to any assignment,
transfer or novation by Xxxxxxx Xxxxx Credit Partners L.P. to the extent
that they would not have applied had such assignment, transfer or
novation been effected by Xxxxxxx Sachs International Bank.
However, the Original Banks (except with respect to assignments,
transfers or novations by Xxxxxxx Xxxxx Credit Partners L.P. to Xxxxxxx
Sachs International Bank and except, with respect to other assignments,
transfers or novations by Xxxxxxx Xxxxx Credit Partners L.P., that the
obligations of Xxxxxxx Sachs Credit Partners L.P. under this paragraph as
it applies thereto shall be limited to those which would apply if such
assignment, transfer or novation were made by Xxxxxxx Xxxxx International
Bank) will use reasonable endeavours (to the extent not materially
prejudicial to their ability successfully to syndicate the Facilities
within twelve months of the Unconditional Date) to avoid making any
assignment, transfer or substitution to or in favour of any assignee,
transferee or New Bank having an 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,
transfer or substitution.
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 assignment,
transfer or Substitution Certificate entered into between Xxxxxxx Sachs
International Bank and Xxxxxxx Xxxxx Credit Partners L.P.).
30.9 RESTRICTION
Notwithstanding anything to the contrary contained in this Agreement,
unless otherwise agreed by the Majority Banks and the Company in any
particular case (which agreement is hereby given in respect of any
transfers, assignments or substitutions of any Utilisations and/or
Commitments between Xxxxxxx Sachs International Bank and Xxxxxxx Xxxxx
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.
115
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 obligation 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 Borrower or any Guarantor under this Agreement is
greater (the amount of the excess being herein referred to as the "EXCESS
AMOUNT") than 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
Borrower or the Guarantors under this Agreement, then the receiving Bank
shall promptly notify the Facility Agent thereof and:-
(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
116
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 of 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
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.
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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:-
(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 other 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 the Company 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 Xxxxxxx and to any member of the Company 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.
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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) (Dividends), 21.6(d)
(Share Capital and Subordinated 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.
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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SCHEDULE A
PART I
BORROWERS
PACIFICORP
ACQUISITIONS
State of Incorporation: England and Wales
Registered Office: Xxxxxxxxxx Xxxxx,
00/00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
Registered No: 3386442
Address for Notices: 000 X.X. Xxxxxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attention: W.E. Xxxxxxxxx, Vice President and Treasurer
Fax: (000) 000 0000
120
PART II
GUARANTORS
PACIFICORP SERVICES
LIMITED
State of Incorporation: England and Wales
Registered Office: Xxxxxxxxxx Xxxxx
00/00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
Registered No: 3366016
Address for Notices: 000 X.X. Xxxxxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attention: W.E. Xxxxxxxxx, Vice President and Treasurer
Fax: (000) 000 0000
PACIFICORP FINANCE
(UK) LIMITED
State of Incorporation: England and Wales
Registered Office: Xxxxxxxxxx Xxxxx
00/00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
Registered No: 3365681
Address for Notices: 000 X.X. Xxxxxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attention: W.E. Xxxxxxxxx, Vice President and Treasurer
Fax: (000) 000 0000
PACIFICORP
ACQUISITIONS
State of Incorporation: England and Wales
Registered Office: Xxxxxxxxxx Xxxxx
00/00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
Registered No: 3386442
Address for Notices: 000 X.X. Xxxxxxxxx , Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attention: W.E. Xxxxxxxxx, Vice President and Treasurer
Fax: (000) 000 0000
121
PART III
FACILITY AGENT
Citibank International Plc
X.X. Xxx 000
000 Xxxxxx
Xxxxxx, XX0X 0XX
Address for notices: as above
Attention: Loans Agency
Tel: 0000 000 0000
Fax: 0171 500 4482
SECURITY AGENT
Citibank, N.A.
X.X. Xxx 000
000 Xxxxxx
Xxxxxx, XX0X 0XX
Address for notices: as above
Attention: Loans Agency
Tel: 0000 000 0000
Fax: 0171 500 4482
122
SCHEDULE B
BANK, FACILITY OFFICE AND NOTICE XXXXXXX 0X XXXXXXX 0X XXXXXXX 2
DETAILS COMMITMENT COMMITMENT COMMITMENT
(Pounds) (Pounds) (Pounds)
CITIBANK, N.A. 540,000,000 210,000,000 200,000,000
X.X. Xxx 000
000 Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Address for notices: as above
Attention: Loans
Administration -
Tel: 0000-000-0000
Fax: 0000-000-0000
XXXXXXX XXXXX CREDIT PARTNERS L.P. 540,000,000 210,000,000 200,000,000
00 Xxxxx Xxxxxx
Xxx Xxxx
Xxx Xxxx 00000
Address for notices:
000 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Xxx Xxxxxxxxxxxx/
Xxxxxxx Xxxx
Tel: 0000 000 0000/
0000 000 0000
Fax: 0000 000 0000
XXXXXX GUARANTY TRUST COMPANY OF 540,000,000 210,000,000 200,000,000
NEW YORK
60 Victoria Embankment
Xxxxxx XX0X 0XX
Address for notices: as above
Attention: Credit Operations
Tel: 0000 000 0000
Fax: 0000 000 0000
123
SCHEDULE C
FORMS OF REQUEST
To: [
]
Attention: [ ]
From: [Company or Borrower] Date: [ ]
REQUEST (ADVANCE)
FACILITY AGREEMENT DATED [ ] JUNE, 1997
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
[ ]
124
SCHEDULE D
SUBSTITUTION CERTIFICATE
To: [ ] as Facility Agent
From: [THE EXISTING BANK] and [THE NEW BANK] Date: [ ]
PACIFICORP ACQUISITIONS (Pounds)[ ]
TERM LOAN FACILITY AND REVOLVING CREDIT FACILITY
DATED [ ] JUNE, 1997 (THE "CREDIT AGREEMENT")
References to Clauses are to Clauses of the Credit Agreement.
We refer to Clause 30.4 (Substitution Certificates).
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 (Substitution Certificates).
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 Clauses
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 the Company in connection herewith has been obtained.]/*/
8. This Substitution Certificate is governed by English law.
/*/ Not required for transfers between Xxxxxxx Xxxxx Credit Partners L.P. and
Xxxxxxx Sachs International Bank
/*/ Not required for transfers between Xxxxxxx Xxxxx Credit Partners L.P. and
Xxxxxxx Sachs International Bank
125
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:
126
SCHEDULE E
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.
127
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.
(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 the Company and the Banks thereof and (after consultation with the
Reference Banks and the Company) 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.
128
SCHEDULE F
PART I
BORROWER ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT is dated the day of June, 1997 and made BETWEEN
[ ] (the "ADDITIONAL BORROWER") (1), PacifiCorp Services
Limited (the "COMPANY" and a "GUARANTOR") (2), PacifiCorp Acquisitions ("BIDCO"
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 (5) 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 [ ], 1997 made between the Company and
Bidco 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 the Company 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.
2. AGREEMENTS, CONFIRMATIONS AND REPRESENTATIONS
(a) The Additional Borrower hereby:-
129
(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 Banks, the
Security Agent and the Facility Agent in the terms of Clause 20.2
(other than paragraphs (g)(iii), (k), (l), (n)(ii) and (p)] 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.
IN WITNESS WHEREOF the parties hereto have caused this Borrower Accession
Agreement to be duly executed on the date first written above.
ADDITIONAL BORROWER:
COMPANY:
PACIFICORP SERVICES LIMITED
By:
130
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:
131
PART II
GUARANTOR ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT is dated the day of June, 1997 and made BETWEEN
[ ] (the "ADDITIONAL GUARANTOR") (1), PacifiCorp Services
Limited (the "COMPANY" and an "EXISTING GUARANTOR") (2), PacifiCorp Acquisitions
("BIDCO") and an "EXISTING GUARANTOR" and a "BORROWER") (3) PacifiCorp Finance
(UK) Limited ("FINANCE" and "EXISTING GUARANTOR") (4) [ ]
(each also an "EXISTING GUARANTOR") (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 [ ], 1997 made between the Company and
Bidco 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 the Company 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:-
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:-
132
(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 20.2
(other than paragraphs [(g)(iii), (k), (l), (n)(ii) and (p)] 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 caused this Guarantor Accession
Agreement to be duly executed on the date first written above.
ADDITIONAL GUARANTOR:
COMPANY:
PACIFICORP SERVICES LIMITED
133
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:
134
SCHEDULE G
DOCUMENTARY CONDITIONS PRECEDENT
PART I
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. A certified copy or originals of the Tax Sharing Agreement.
3. The Fee Letter(s) referred to in Clause 27.2 duly executed by Bidco.
4. At least two originals of (a) the Debenture, duly executed by each relevant
Obligor, and (b) the Intercreditor Agreement, and the Coalco Intercreditor
Agreement duly executed by all parties other than the Finance Parties.
5. 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 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.
6. A copy of (and of all applications for) any and all approvals, consents,
licences, exemptions and other requirements of governmental and other
authorities required for the entering into or performance of the Finance
Documents.
7. 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 to sign all notices, certificates and other documents or
communications to be delivered by such Obligor thereunder.
8. 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.
9. The Offer Document, reflecting in all material respects the text of the
Press Release.
10. The Press Release.
11. The Structure Memorandum.
12. The letter referred to in Clause 4.1(d).
13. Model.
14. Borrowings List.
135
PART II
Each of the documents referred to in paragraphs 1, 5, 6, 7 and 8 (and, in the
case of a company incorporated outside of 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.
136
PART III
ADDITIONAL GUARANTORS AND CHARGORS
The Energy Group PLC
Rollalong Limited
Rollalong Hire Limited
Eastern Group PLC
137
PART IV
SECURITY DOCUMENTS
THE DEBENTURE
PLEDGE AGREEMENT between (inter alios) PacifiCorp Powercoal LLC and Xxxxxx
Guaranty Trust Company of New York as Collateral Agent for the Coalco Lenders
and (as regards that security) the Bidco Banks creating a pledge over all the
capital stock of TPC Corporation securing (inter alia) the Coalco Loan and
related obligations of Coalco under the Coalco Facility Agreement and the
obligations of Bidco as Borrower under this Agreement in respect of Tranche 1A
Loans the proceeds of which are applied in financing the acquisition of Shares
and/or financing Offer Costs, Tranche 1B Loans the proceeds of which are applied
in financing Offer Costs and Tranche 2 Utilisations outstanding at any time in
an aggregate Original Sterling Amount not exceeding (Pounds)50,000,000.
SECURITY AGREEMENT between (inter alios) TPC Corporation and Xxxxxx Guaranty
Trust Company of New York as Collateral Agent for the Coalco Lenders and (as
regards that security) the Bidco Banks creating a pledge over certain personal
property of TPC Corporation securing the same obligations as are secured by the
aforementioned Pledge Agreement.
138
SCHEDULE H
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 Schedule H.
4. The obligations of each Tranche 2 Bank under Clause 5.6 and this Schedule H
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
Schedule H or reduce, impair or affect such obligations or cause all or any
part of such obligations to be irrecoverable from or unenforceable against
any Obligor or to discharge, reduce, affect or impair any of such
obligations, including without limitation:
(a) any time, waiver or indulgence granted to any 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 Documents or in respect of any other guarantee,
security, obligation, right or remedy;
(b) the recovery of any judgment 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
139
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 Schedule H 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 Schedule H 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 Schedule H
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 Schedule H 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 Schedule H shall be in
addition to and shall 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 Schedule H 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 Schedule H shall be conclusive in the
absence of manifest error.
140
SCHEDULE I
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 judgement 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 at to be
so treated.
10. Clause 34.1 (Severability) 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 provisions of Clause 18.7(b) may constitute a charge which is
required to be registered under Section 395 Companies Act 1985 (as
amended).
141
17. That the exercise by a Security Agent of powers and remedies expressed to
be given to it pursuant to the terms of the Debenture may be limited.
142
SIGNATORIES TO FACILITY AGREEMENT
THE COMPANY
PACIFICORP SERVICES LIMITED
By: W.E. XXXXXXXXX
FINANCE
PACIFICORP FINANCE (UK) LIMITED
BY: W.E. XXXXXXXXX
BIDCO
PACIFICORP ACQUISITIONS
By: W.E. XXXXXXXXX
THE ARRANGERS
CITIBANK, N.A.
By: XXXXX X. XXXX
XXXXXXX XXXXX INTERNATIONAL
By: XXXXXX XXXXXXXXX
X.X. XXXXXX SECURITIES LTD
By: XXXXXXXXX XXXXXXXX
THE ORIGINAL BANKS
CITIBANK, N.A.
By: XXXXX X. XXXX
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: XX XXXXX
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By: XXXXXXX XXXXX-XXXXX
143
THE LC BANK
CITIBANK, N.A.
By: XXXXX X. XXXX
THE FACILITY AGENT
CITIBANK INTERNATIONAL PLC
By: XXXX XXXXXXXX
THE SECURITY AGENT
CITIBANK, N.A.
By: XXXXX X. XXXX
