LIMITED LIABILITY PARTNERSHIP
Exhibit 4.39
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LIMITED LIABILITY PARTNERSHIP |
CONFORMED COPY
DATED 30 SEPTEMBER 2004
BRITISH ENERGY PLC
BRITISH ENERGY POWER AND ENERGY TRADING LIMITED
EGGBOROUGH POWER (HOLDINGS) LIMITED
EGGBOROUGH POWER LIMITED
BARCLAYS BANK PLC
THE ROYAL BANK OF SCOTLAND PLC
WEST LB AG
THE TORONTO-DOMINION BANK
AND
CERTAIN FINANCIAL INSTITUTIONS
THIS DEED is dated 30 September 2004
BETWEEN:
| (1) | BRITISH ENERGY PLC, a company incorporated in Scotland (registered no. SC162273), whose registered office is at 0 Xxxxxxx Xxxxxxxx, Xxxx Xxxx, Xxxx Xxxxxxxx X00 0XX (“BE”); |
| (2) | BRITISH ENERGY POWER AND ENERGY TRADING LIMITED, a company incorporated in Scotland (registered no. SC200887), whose registered office is at 0 Xxxxxxx Xxxxxxxx, Xxxx Xxxx, Xxxx Xxxxxxxx X00 0XX (“BEPET”); |
| (3) | EGGBOROUGH POWER (HOLDINGS) LIMITED, a company incorporated in Scotland (registered no. SC201083) whose registered office is at 0 Xxxxxxx Xxxxxxxx, Xxxx Xxxx, Xxxx Xxxxxxxx X00 0XX (“EPHL”); |
| (4) | EGGBOROUGH POWER LIMITED, a company incorporated in England and Wales (registered no. 03782700), whose registered office is at Xxxxxxx Xxx, Xxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxxxx XX0 0XX (“EPL”); |
| (5) | BARCLAYS BANK PLC, a company incorporated in England and Wales (registered no. 01026167), whose registered office is at 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX in its capacity as agent for the Finance Parties (as defined in the Credit Agreement) (the “Agent”); |
| (6) | BARCLAYS BANK PLC, a company incorporated in England and Wales (registered no. 01026167), whose registered office is at 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX in its capacity as security trustee for the Finance Parties (as defined in the Credit Agreement) (the “Security Trustee”); |
| (7) | BARCLAYS BANK PLC, a company incorporated in England and Wales (registered no. 01026167), whose registered office is at 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX in its own capacity; |
| (8) | THE ROYAL BANK OF SCOTLAND PLC, a company incorporated in Scotland (registered no. SC090312), whose registered office is at 00 Xx. Xxxxxx Xxxxxx, Xxxxxxxxx XX0 0XX in its own capacity; |
| (9) | WESTLB AG, a financial institution incorporated in Germany with limited liability and having its head offices in Duesseldorf and Muenster where it is registered under numbers HRB42975 and HRB6400 respectively, acting through its London Branch at Woolgate Exchange, 00 Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, registered in England and Wales as a branch under no. BR001899; |
| (10) | THE TORONTO DOMINION BANK, a company incorporated in Canada (registered no. FC004422), whose registered office is at XX Xxx 0, Xxxxxxx-Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0, acting through its London Branch at Xxxxxx Xxxxx, 00/00 Xxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX; |
| (11) | THE FINANCIAL INSTITUTIONS listed in Schedule 1. |
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WHEREAS:
The parties have agreed to terminate and release all their respective rights and obligations under the Agreements to which they are a party (in each and every capacity) as of the Restructuring Date.
| 1. | DEFINITIONS |
| 1.1 | In this Deed: |
“Agreements” means each of the Agreements listed in Schedule 2.
“Credit Agreement” means the credit agreement originally dated 13 July 2000 as amended and restated on 8 September 2000, 24 October 2000, 12 December 2000, 5 February 2001 and on or about the date of this Deed.
“Creditor Restructuring Agreement” means the creditor restructuring agreement dated as of 30 September 2003 between, inter alios, BE, EPL and EPHL.
“Deed” means this Deed and the Schedules hereto.
“Restructuring Date” has the same meaning as given to it in the Creditor Restructuring Agreement.
| 1.2 | Any reference in this Deed to a person shall be construed as to include its and any subsequent permitted successors, assigns and transferees in accordance with their respective interests. |
| 1.3 | A person who is not a party to this Deed has no right under the Contract (Rights of Third Parties) Xxx 0000. |
| 2. | RELEASE |
With effect from the Restructuring Date, the Agreements are terminated and each party to the Agreements (in each and every capacity) irrevocably and unconditionally releases the other parties to the Agreements (in each and every capacity) from their respective rights and obligations under the Agreements (whether present or future and/or actual or contingent).
| 3. | COUNTERPARTS |
This Deed may be executed in any number of counterparts, each of which is an original and all of which together evidence the same agreement.
| 4. | GOVERNING LAW |
This Deed and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Deed and its formation shall be governed and construed in accordance with English law.
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SCHEDULE 1
FINANCIAL INSTITUTIONS
Arab Bank plc
Banc of America Securities Limited
Barclays Bank PLC
Bear Xxxxxxx Bank plc
Citibank International plc
Credit Industriel et Commercial (Singapore Branch)
Credit Suisse First Boston
Deutsche Bank AG, London
Xxxxxxx Xxxxx Credit Partners X.X.
Xxxxxx Xxxxxxx Bank International Limited
ORN European Debt S.à.x.x.
Scotiabank Europe plc
The Royal Bank of Scotland plc
The Toronto-Dominion Bank
WestLB AG
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SCHEDULE 2
Agreements to be Terminated
| 1. | The calculations and forecasting agreement originally dated 13 July 2000 as amended and restated on 8 September 2000 between EPL and the Agent. |
| 2. | The sponsor undertaking originally dated 13 July 2000 as amended and restated on 8 September 2000 between BE, EPHL, BEPET, EPL, the Agent and the Security Trustee. |
| 3. | The capacity and tolling agreement originally dated 13 July 2000 as amended and restated on 8 September 2000 and 5 February 2001 between BEPET and EPL. |
| 4. | The CTA guarantee dated 8 September 2000 given by BE to EPL. |
| 5. | The capacity and tolling agreement direct agreement originally dated 13 July 2000 as amended and restated on 8 September 2000 between BEPET, EPL and the Agent. |
| 6. | The deed of indemnity in relation to employees liabilities dated 13 July 2000 between BE and EPL. |
| 7. | The subordinated loan agreement originally dated 13 July 2000 as amended and restated on 8 September 2000 between EPL and BE. |
| 8. | The service contract dated 8 September 2000 between BE and EPL. |
| 9. | The accounts agreement dated 8 September between EPL and the Agent. |
| 10. | The deed of payment originally dated 13 July 2000 as amended and restated on 8 September 2000 between EPL and BEPET. |
| 11. | The ISDA Master Agreement originally dated 6 October 2000 as amended on 9 April 2003 between EPL and Barclays together with all associated confirmations. |
| 12. | The ISDA Master Agreement originally dated 15 March 2001 as amended on 10 April 2003 between EPL and RBS together with all associated confirmations. |
| 13. | The ISDA Master Agreement originally dated 5 May 2001 as amended on 24 April 2003 between EPL and WestLB together with all associated confirmations. |
| 14. | The ISDA Master Agreement originally dated 5 March 2001 as amended on 9 April 2003 between EPL and TDB together with all associated confirmations. |
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IN WITNESS WHEREOF this Deed has been executed as a deed by the parties to this Deed and is intended to and is hereby delivered by all the parties to this Deed as a deed on the date specified above.
| EXECUTED as a deed by British Energy plc acting by |
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| Signature of director |
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| Name of director | XXXX XXXXXXXXX | |
| Signature of director/secretary | ||
| Name of director/secretary | XXXXXX XXXXXX | |
| EXECUTED as a deed by British Energy Power and Energy Trading Limited acting by |
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| Signature of director | ||
| Name of director | XXXX X’XXXX | |
| Signature of director/secretary | ||
| Name of director/secretary | XXXXXX XXXXXX | |
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| EXECUTED as a deed by Eggborough Power (Holdings) Limited acting by | ||
| Signature of director |
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| Name of director |
XXXXXX XXXXXX | |
| Signature of secretary |
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| Name of secretary |
XXXX XXXXXXXXX | |
| EXECUTED as a deed by Eggborough Power Limited acting by |
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| Signature of director |
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| Name of director |
XXXX X’XXXX | |
| Signature of director/secretary |
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| Name of director/secretary |
XXXXXX XXXXXX | |
| EXECUTED as a deed by Barclays Bank plc as Agent acting by its attorney |
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| in the presence of |
XXXXX XXXXXX | |
| Signature of witness |
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| Name of witness |
Xxxxxx Xxxx | |
| Address: |
0 Xxx Xxxxx Xxxxxxxxx Xxxxxx Xxxxx | |
| Occupation: |
Bank Manager | |
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| EXECUTED as a deed by Barclays Bank plc as Security Trustee acting by its attorney | ||
| in the presence of |
XXXXX XXXXXX | |
| Signature of witness |
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| Name of witness |
Xxxxxx Xxxx | |
| Address: |
0 Xxx Xxxxx Xxxxxxxxx | |
| Xxxxxx Xxxxx | ||
| Occupation: |
Bank Manager | |
| EXECUTED as a deed by Barclays Bank plc in its own capacity acting by its attorney | ||
| in the presence of |
XXXXX XXXXX | |
| Signature of witness |
||
| Name of witness |
Xxxxx Xxxxxx | |
| Address: |
0 Xxx Xxxxx Xxxxxxxxx | |
| Xxxxxx Xxxxx | ||
| Occupation: |
Bank Manager | |
| EXECUTED as a deed by Arab Bank plc acting by its attorney | ||
| in the presence of |
XXXXXXX XXXXX | |
| Signature of witness |
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| Name of witness |
Xxxxx Xxxxxxxx | |
| Address: |
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| Occupation: |
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| EXECUTED as a deed by Banc of America Securities Limited acting by its attorney | ||
| in the presence of |
XXXXX XXXXX | |
| Signature of witness |
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| Name of witness |
Xxxxxx X. Xxxxx | |
| Address: |
9W. 00xx Xxxxxx | |
| 0xx Xxxxx, XX | ||
| XX 00000 | ||
| Occupation: |
Banker | |
| EXECUTED as a deed by Barclays Bank plc acting by its attorney | ||
| in the presence of |
XXXXX XXXXX | |
| Signature of witness |
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| Name of witness |
Xxxxx Xxxxxx | |
| Address: |
0 Xxx Xxxxx Xxxxxxxxx | |
| Xxxxxx Xxxxx | ||
| Occupation: |
Bank Manager | |
| EXECUTED as a deed by Bear Xxxxxxx Bank plc acting by its attorney | ||
| in the presence of |
XXXX XXXXXXXXX | |
| Signature of witness |
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| Name of witness |
Xxxxx Xxxxxxxxxx | |
| Address: |
Bear Xxxxxxx Bank plc, Block 8, | |
| Horcourt Centre, Charlotte way, | ||
| Dublin | ||
| Occupation: |
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| EXECUTED as a deed by Citibank International plc acting by its attorney | ||
| in the presence of |
XXXXXXX XXXXX | |
| Signature of witness |
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| Name of witness |
Xxxxx Xxxxxxxx | |
| Address: |
38 Xxxxxx Manor | |
| Chelmsford | ||
| Occupation: |
Banker | |
| EXECUTED as a deed by Credit Industriel et Commercial (Singapore Branch) acting by its attorney | ||
| in the presence of |
XXXXXX XXXXX | |
| Signature of witness |
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| Name of witness |
Xxxxxxx X. Xxxxxx | |
| Address: |
000 Xxxxxxx Xxxxxx | |
| 00xx Xxxxx, XX | ||
| XX 00000 | ||
| Occupation: |
Controller | |
| EXECUTED as a deed by Credit Suisse First Boston acting by its attorney | ||
| in the presence of |
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| Signature of witness |
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| Name of witness |
Xxxx Biddulah | |
| Address: |
Xxxxxx X00 0XX | |
| Occupation: |
Banker | |
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| EXECUTED as a deed | ||
| by Deutsche Bank AG,London | ||
| acting by its attorney | ||
| in the presence of | ||
| Signature of witness | ||
| Name of witness | Fraser Xxxxx | |
| Address: | Xxxxxxxxxx Xxxxx | |
| Xxxxxx | ||
| XX0X 0XX | ||
| Occupation: | ||
| EXECUTED as a deed | ||
| by Xxxxxxx Sachs Credit Partners L.P. | ||
| acting by its attorney | ||
| in the presence of | XXXXXXXXX XXXXXXXX | |
| Signature of witness | ||
| Name of witness | Xxxxxx Xxxxxxx | |
| Address: | 00 Xxxxxx Xxxxxx | |
| Xxxxxx | ||
| X0 0XX | ||
| Occupation: | Trainee Solicitor | |
| EXECUTED as a deed | ||
| by Xxxxxx Xxxxxxx Bank International Limited | ||
| acting by its attorney | ||
| in the presence of | XXXXX XXXXX | |
| Signature of witness | ||
| Name of witness | Xxxxxx Xxxxxx | |
| Address: | Xx. 0 Xxxxxxxxx Xxxx | |
| Xxxxxx | ||
| XX0 0XX | ||
| Occupation: | Investment Banker | |
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| EXECUTED as a deed | ||
| by ORN European Debt S.à.x.x. | ||
| acting by its attorney | ||
| in the presence of | XXXXXX XXXX | |
| Signature of witness | ||
| Name of witness | Xxxxxxxxx Xxxxxx - Saudax | |
| Address: | ||
| Occupation: | ||
| EXECUTED as a deed | ||
| by Scotiabank Europe plc | ||
| acting by its attorney | ||
| in the presence of | XXXXX XXXXXX | |
| Signature of witness | ||
| Name of witness | Xxx Macillivary | |
| Address: | Xxxx 0 ,00-00 Xxxxxxxxx Xxxx | |
| Xxxxxx XX00 0X0 | ||
| Occupation | Banker | |
| EXECUTED as a deed | ||
| by The Royal Bank of Scotland plc | ||
| acting by its attorney | ||
| in the presence of | XXXX XXXXXXXX | |
| Signature of witness | ||
| Name of witness | Xxxx Xxxx | |
| Address: | 000 Xxxxxxxxxxx | |
| XX0X 0XX | ||
| Occupation: | Banker | |
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| EXECUTED as a deed | ||
| by The Toronto-Dominion Bank | ||
| acting by its attorney | ||
| in the presence of | XXXXXX XXXXXXX | |
| Signature of witness | ||
| Name of witness | Xxx Xxxxxx | |
| Address: | Xxxxxx Xxxxx | |
| 00/00 Xxxxxxxx Xxxxxx | ||
| Xxxxxx | ||
| XX0X 0XX | ||
| Occupation: | Senior Manager, Legal Compliance | |
| EXECUTED as a deed | ||
| by WestLB AG | ||
| acting by its attorney | ||
| in the presence of | XXXXX XXXXXXX | |
| Signature of witness | ||
| Name of witness | Holde X. Xxxxxx | |
| Address: | London | |
| Occupation: | Personal Assistant | |
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