The Amendment and Restatement Agreement dated September 30, 2004



 Exhibit 4.35 
  
 CONFORMED COPY 
  
 AMENDMENT AND RESTATEMENT AGREEMENT 
  
 DATED 30 September, 2004 
  
 Between 
  
 EGGBOROUGH POWER LIMITED 
 as Borrower 
  
 BRITISH ENERGY POWER AND ENERGY TRADING LIMITED 
  
 EGGBOROUGH POWER (HOLDINGS) LIMITED 
  
 BARCLAYS CAPITAL 
 as Arranger 
  
 THE FINANCIAL INSTITUTIONS 
 Listed in Schedule 1 
  
 with 
  
 BARCLAYS BANK PLC 
 as Agent and Security
Trustee 
  
 

 
  
 ALLEN & OVERY LLP 
  
 LONDON 







 CONTENTS 
  

					
	 Clause

	  	Page


	1.	  	Interpretation	  	1
	2.	  	Conditions Precedent	  	2
	3.	  	Representations and Warranties	  	3
	4.	  	Amendments and Acknowledgements	  	4
	5.	  	Jurisdiction	  	5
	6.	  	Governing Law	  	5
		
	 Schedule

	  	 
			
	1.	  	Banks	  	6
	2.	  	Conditions Precedent	  	7
	3.	  	Form of Amended and Restated Credit Agreement	  	10
	4.	  	Form of Amended and Restated Intercreditor Agreement	  	11
		
	 Signatories
	  	12








 THIS AMENDMENT AND RESTATEMENT AGREEMENT is a deed and is dated 30 September, 2004 
  

	BETWEEN:	

  

	(1)	EGGBOROUGH POWER LIMITED as borrower (the Borrower); 

  

	(2)	BRITISH ENERGY POWER AND ENERGY TRADING LIMITED (BET); 

  

	(3)	EGGBOROUGH POWER (HOLDINGS) LIMITED (EPHL); 

  

	(4)	BARCLAYS BANK PLC as agent (in this capacity the Agent); 

  

	(5)	BARCLAYS BANK PLC as security trustee (in this capacity the Security Trustee); 

  

	(6)	BARCLAYS CAPITAL (the investment banking division of Barclays Bank PLC) as Arranger (in this capacity the Arranger); and 

  

	(7)	THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Banks) as banks (the Banks). 

  

	BACKGROUND:	

  

	(A)	This Amendment and Restatement Agreement is supplemental to, and amends and restates, a credit agreement originally dated 13th July, 2000 (as amended) (the Credit Agreement),
and an intercreditor agreement originally dated 8th September, 2000 (as amended) (the Intercreditor Agreement). 

  

	(B)	The Parties now wish to amend and restate the terms of: 

  

	 	(i)	the Credit Agreement on the terms set out in the amended and restated credit agreement (the Amended and Restated Credit Agreement) in Schedule 3 to this Amendment and
Restatement Agreement; and 

  

	 	(ii)	the Intercreditor Agreement on the terms set out in the amended and restated intercreditor agreement (the Amended and Restated Intercreditor Agreement) in Schedule 4 to this
Amendment and Restatement Agreement. 

  

	(C)	It is intended that this document take effect as a deed notwithstanding that a party may only execute this document under hand. 

  
 IT IS AGREED as follows: 
  

	1.	INTERPRETATION 

  

	1.1	Definitions 

  

	(a)	Capitalised terms defined in the Amended and Restated Credit Agreement have, unless expressly defined in this Amendment and Restatement Agreement, the same meaning in this Amendment
and Restatement Agreement. 

  

	(b)	Agreements means the Credit Agreement and the Intercreditor Agreement. 

  


	(c)	Restructuring Date has the meaning given to it in the Creditor Restructuring Agreement. 

  

	(d)	New Finance Document means: 

  

	 	(i)	this Agreement; 

  

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	 	(ii)	the Credit Agreement, as amended by Clause 3 (Amendment and Restatement); 

  

	 	(iii)	the Intercreditor Agreement, as amended by Clause 3 (Amendment and Restatement); 

  

	 	(iv)	the New Debenture; 

  

	 	(v)	the EPHL Security Document; and 

  

	 	(vi)	the Accounts Agreement. 

  

	1.2	Construction 

  
 The provisions of clause 1.2 (Construction) of the Amended and Restated Credit Agreement apply to this Amendment and Restatement Agreement as though they
were set out in full in this Amendment and Restatement Agreement except that references to the Amended and Restated Credit Agreement are to be construed as references to this Amendment and Restatement Agreement. 
  

	2.	CONDITIONS PRECEDENT 

  

	(a)	Subject as set out below, the Credit Agreement and the Intercreditor Agreement will be amended and restated on and from the later to occur of: 

  

	 	(i)	the date on which the Agent notifies the Borrower and the Banks that it has received all of the documents and other evidence set out in Part I of Schedule 2 (Conditions Precedent),
in form and substance reasonably satisfactory to the Agent (acting on the instructions of the Majority Banks). Such notice will be deemed to have been given on the date on which this Amendment and Restatement Agreement is signed by all the parties
hereto; 

  

	 	(ii)	the date on which the Agent notifies the Borrower and the Banks that it has received all of the documents and other evidence set out in Part II of Schedule 2 (Conditions Precedent),
in form and substance reasonably satisfactory to the Agent (acting on the instructions of the Majority Banks); and 

  

	 	(iii)	the date on which the CTA Bonds are sold to the Borrower pursuant to the Second Intercompany Loan Agreement, 

  
 (the Restatement Date). 
  

	(b)	The Agent agrees that it will give each notice to the Borrower and the Banks specified in paragraph (a) above promptly after it has received all of the documents and other evidence
set out in Part I or Part II of Schedule 2 (Conditions Precedent) respectively. 

  

	(c)	The Banks agree to respond promptly to any notice from the Agent that relates to the documents and other evidence set out in Schedule 2 (Conditions Precedent) and to suspend the
timing requirements under Clause 19.18(a) of the Credit Agreement for these purposes. 

  

	(d)	If the Restatement Date has not occurred on or before the Restructuring Long Stop Date (as defined in the Creditor Restructuring Agreement), this Amendment and Restatement Agreement
shall terminate. 

  

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	(e)	The Borrower shall ensure that the CTA Bond Account and the Asset Option Account are opened with Barclays Bank plc no later than 10 Business Days after the date of this Agreement.


  

	3.	AMENDMENT AND RESTATEMENT 

  
 Subject to the terms of this Amendment and Restatement Agreement, the Agreements will each be amended and restated on and from the Restatement Date in the
case of the Credit Agreement, as set out in Schedule 3 and in the case of the Intercreditor Agreement, as set out in Schedule 4. 
  

	4.	EXISTING SECURITY DOCUMENTS 

  

	(a)	The Finance Parties agree that, from the Restatement Date: 

  

	 	(i)	the exception in the definition of Secured Senior Liabilities in the Existing Debenture in respect of unlawful financial assistance under Sections 151 and 152 of the Companies Act
1985 includes, without limitation, any obligation of EPHL under the Share Option Agreement; 

  

	 	(ii)	the Security Trustee may only convert a floating charge created by the Existing Debenture into a fixed charge in circumstances where it may convert a floating charge created under
the New Debenture into a fixed charge; 

  

	 	(iii)	the Borrower shall not be in breach of any representation or warranty given under the Existing Debenture unless it would be in breach of a corresponding representation or warranty
under the New Debenture; 

  

	 	(iv)	the Borrower shall not be in breach of any covenant in the Existing Debenture unless it would be in breach of a corresponding covenant in the New Debenture and EPL is not obliged to
comply with any covenants in the Existing Debenture that are more onerous than the covenants in the New Debenture; 

  

	 	(v)	Notwithstanding any provision in the Existing Debenture to the contrary, the Borrower may deal with the Relevant Agreements (as defined in the New Debenture) (and any payments
thereunder) in the manner set out in the New Debenture; 

  

	 	(vi)	the Security Trustee may only enforce the security constituted by the Existing Debenture in circumstances where the Security Trustee has the right to enforce the security
constituted by the New Debenture; 

  

	 	(vii)	the exceptions under the New Debenture as to when the Security Trustee may redeem any prior security interest, procure the transfer of a security interest to itself or settle and
pass the accounts of a prior mortgagee, chargee or encumbrancer shall apply to the corresponding provisions of the Existing Debenture; 

  

	 	(viii)	the Security Trustee or any administrative receiver, receiver or manager appointed under the Existing Debenture shall not be entitled to exercise any rights, powers or discretions
over and above those granted to the Security Trustee or any administrative receiver, receiver or manager appointed under the New Debenture; 

  

	 	(ix)	any moneys received by the Security Trustee or any Receiver under or pursuant to the Existing Debenture shall be applied in accordance with the Amended and Restated Intercreditor
Agreement; 

  

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	 	(x)	the Borrower shall not be in breach of any representation or warranty given under the Shares Pledge or EPHL Assignment unless it would be in breach of a corresponding representation
or warranty under the EPHL Security Document; 

  

	 	(xi)	the Borrower shall not be in breach of any covenant in the Shares Pledge or EPHL Assignment unless it would be in breach of a corresponding covenant in the EPHL Security Document
and EPL is not obliged to comply with any covenants in the Shares Pledge or EPHL Assignment that are more onerous than the covenants in the EPHL Security Document; 

  

	 	(xii)	the Security Trustee may only enforce the security constituted by the Shares Pledge or the EPHL Assignment in circumstances where the Security Trustee has the right to enforce the
security constituted by the EPHL Security Document; 

  

	 	(xiii)	the exceptions under the EPHL Security Document as to when the Security Trustee may redeem any prior security interest, procure the transfer of a security interest to itself or
settle and pass the accounts of a prior mortgagee, chargee or encumbrancer shall apply to the corresponding provisions of the Shares Pledge and the EPHL Security Assignment; 

  

	 	(xiv)	the Security Trustee or any administrative receiver, receiver or manager appointed under the Shares Pledge or the EPHL Assignment shall not be entitled to exercise any rights,
powers or discretions over and above those granted to the Security Trustee or any administrative receiver, receiver or manager appointed under the EPHL Security Document; and 

  
 any moneys received by the Security Trustee or any Receiver under or
pursuant to the Shares Pledge or the EPHL Security Assignment shall be applied in accordance with the Amended and Restated Intercreditor Agreement. 
  

	(b)	For the avoidance of doubt, nothing in paragraph (d) above amends or waives any Security Interest given by way of fixed charge, assignment, mortgage, floating charge or other
security interest created under the Existing Debenture. 

  

	5.	AMENDMENTS AND ACKNOWLEDGEMENTS 

  

	(a)	This Amendment and Restatement Agreement is a Finance Document. 

  

	(b)	Except as amended by this Amendment and Restatement Agreement, each of the Agreements shall after the Restatement Date remain in full force and effect. 

  

	(c)	This Amendment and Restatement Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were in a single copy
of this Amendment and Restatement Agreement. 

  

	6.	CREDITOR RESTRUCTURING AGREEMENT 

  
 The Finance Parties acknowledge the terms of, and hereby agree to comply with, the terms of Schedule 3 to the Creditor Restructuring Agreement as of and
from the date of this Amendment and Restatement Agreement. 
  

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	7.	JURISDICTION 

  

	7.1	Submission 

  
 For the benefit of each Finance Party, the Borrower agrees that the courts of England have jurisdiction to settle any disputes in connection with any
Finance Document and accordingly submits to the jurisdiction of the English courts. 
  

	7.2	Non-exclusivity 

  
 Nothing in this clause 6.2 limits the right of a Finance Party to bring proceedings against the Borrower in connection with any Finance Document:

  

	 	(a)	in any other court of competent jurisdiction; or 

  

	 	(b)	concurrently in more than one jurisdiction. 

  

	8.	GOVERNING LAW 

  

	 	(a)	This Amendment and Restatement Agreement is governed by English law. 

  

	 	(b)	This Amendment and Restatement Agreement has been entered into on the date stated at the beginning of this Amendment and Restatement Agreement. 

  

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 SCHEDULE 1 
  

BANKS 
  

	
	 Arab Bank plc

	
	 Banc of America Securities Limited

	
	 Barclays Bank PLC

	
	 Bear Stearns Bank plc

	
	 Citibank International plc

	
	 Credit Industriel et Commercial (Singapore Branch)

	
	 Credit Suisse First Boston

	
	 Deutsche Bank AG, London

	
	 Goldman Sachs Credit Partners L.P.

	
	 Morgan Stanley Bank International Limited

	
	 ORN European Debt S.à.r.l.

	
	 Scotiabank Europe plc

	
	 The Royal Bank of Scotland plc

	
	 The Toronto-Dominion Bank

	
	 WestLB AG



	

  

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 SCHEDULE 2 
  

CONDITIONS PRECEDENT 
  
 PART I 
  
 Borrower 
  

	1.	A certified copy of the constitutional documents of the Borrower and EPHL. 

  

	2.	A certified copy of a resolution of the board of directors of the Borrower and EPHL approving the terms of, and the transactions contemplated by, this Amendment and Restatement
Agreement and the New Finance Documents to which it is a party. 

  

	3.	A certified copy of a resolution of the shareholders of the Borrower and EPHL approving the terms of, and the transactions contemplated by, this Amendment and Restatement Agreement
and the other New Finance Documents to which it is a party. 

  

	4.	A specimen of the signature of each person authorised on behalf of the Borrower and EPHL to execute or witness the execution of any New Finance Document or to sign or send any
document or notice in connection with any New Finance Document. 

  

	5.	A certificate of an authorised signatory of the Borrower certifying that each copy document (other than those expressed to be in agreed form and the Air Gas Production Electricity
Supply Agreement, the Air Gas Production Connection Agreement, the Air Gas Production On-Site Supply Agreement and the shared spares agreement to be entered into by the Borrower and PowerGen UK PLC) referred to in Part I of this Schedule 2 is
correct, complete and in full force at the date of this Amendment and Restatement Agreement. 

  
 Legal Opinions 
  

	1.	An agreed form legal opinion of Allen & Overy LLP, legal advisers in England to the Agent, addressed to the Finance Parties named as parties on the date of this Amendment and
Restatement Agreement. 

  

	2.	An agreed form legal opinion of Tods Murray LLP, legal advisers in Scotland to the Agent, addressed to the Finance Parties, named as parties on the date of this Amendment and
Restatement Agreement. 

  

	Finance	and other documents 

  

	1.	A copy of each of the New Finance Documents and copies of each of the other Finance Documents. 

  

	2.	A copy of each of the Project Contracts. 

  

	3.	A copy of each of the Station Contracts. 

  

	4.	A copy of the FGD Contract. 

  

	5.	A copy of each of the Revenue Agreements. 

  

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	6.	A copy of the First Intercompany Loan Agreement. 

  

	7.	A copy of the Second Intercompany Loan Agreement. 

  

	8.	A copy of any Environmental Licence. 

  

	9.	A copy of the Sale of Business Agreement. 

  

	10.	A copy of the Share Purchase Agreement. 

  

	11.	Confirmation that all insurance arrangements required to be effected or maintained under the Credit Agreement are in full force and effect as at the date of this Amendment and
Restatement Agreement. 

  
 Accounts 
  
 Evidence that all Accounts (other than the CTA Bond Account and the Asset Option Account)
are open in accordance with the Credit Agreement, as amended by Clause 3 (Amendment and Restatement) of this Agreement, and the Accounts Agreement. 
  
 Other documents and evidence 
  
 Evidence that all fees and expenses due and payable from the Borrower under the Finance Documents have been or will be paid on or before the Restatement Date. 

 
  

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 PART II 
  
 Legal Opinions 
  

	1.	The executed legal opinion of Allen & Overy LLP referred to in Part I of this Schedule 2. 

  

	2.	The executed legal opinion of Tods Murray LLP, referred to in Part I of this Schedule 2. 

  
  

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 SCHEDULE 3 
  

FORM OF AMENDED AND RESTATED CREDIT AGREEMENT 
  
 [TO BE ADDED] 
  

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 SCHEDULE 4 
  

FORM OF AMENDED AND RESTATED INTERCREDITOR AGREEMENT 
  
 [TO BE ADDED] 
  

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 SIGNATORIES 
  

					
	Borrower	 	 	 	 
			
	EXECUTED as a DEED by	 	 	 	)
	EGGBOROUGH POWER LIMITED	 	 	 	)
	acting by	 	 	 	)
	and	 	 	 	)
		
	Director	 	    Neil O’Hara
		
	Director/Secretary	 	    Robert Armour
			
	BET	 	 	 	 
			
	EXECUTED as a DEED by	 	 	 	)
	BRITISH ENERGY POWER AND	 	 	 	)
	ENERGY TRADING LIMITED	 	 	 	)
	acting by	 	 	 	)
	and	 	 	 	)
		
	Director	 	    Neil O’Hara
		
	Director/Secretary	 	    Robert Armour
			
	EPHL	 	 	 	 
			
	EXECUTED as a DEED by	 	 	 	)
	EGGBOROUGH POWER	 	 	 	)
	(HOLDINGS) LIMITED	 	 	 	)
	acting by	 	 	 	)
	and	 	 	 	)
		
	Director	 	    Neil O’Hara
		
	Director/Secretary	 	    Robert Armour

  
 Banks 
  

			
	ARAB BANK PLC
		
	By:	 	Michael Clark
		
	 	 	Graham Pinnell

  

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	BANC OF AMERICA SECURITIES LIMITED
		
	By:	 	Kenneth Schneier
	
	BARCLAYS BANK PLC
		
	By:	 	Allan Pover
	
	BEAR STEARNS BANK PLC
		
	By:	 	Liam MacNamara
	
	CITIBANK INTERNATIONAL PLC
		
	By:	 	William Bonsu
	
	CREDIT INDUSTRIEL ET COMMERCIAL SINGAPORE BRANCH
		
	By:	 	Robert Petty
	
	CREDIT SUISSE FIRST BOSTON
		
	By:	 	Kim Bailes and Edward Lowe
	
	DEUTSCHE BANK AG LONDON
		
	By:	 	 
	
	GOLDMAN SACHS CREDIT PARTNERS LP
		
	By:	 	Vladimira Mircheva
	
	MORGAN STANLEY BANK INTERNATIONAL LIMITED
		
	By:	 	Wendy Newby
	
	ORN EUROPEAN DEBT S.à.r.l.
		
	By:	 	Orn Capital LLP by Gordon Webb

  

 13 









			
	SCOTIABANK EUROPE PLC
		
	By:	 	Steve Dobson
	
	THE ROYAL BANK OF SCOTLAND PLC
		
	By:	 	Paul Sullivan

  

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	THE TORONTO-DOMINION BANK
		
	By:	 	Graeme Francis
	
	WESTLB AG
		
	By:	 	David Stewart
		
	 	 	Tim Sai Louie
	
	The Agent
	
	BARCLAYS BANK PLC
		
	By:	 	Simon Deaves
	
	The Security Trustee
	
	BARCLAYS BANK PLC
		
	By:	 	Simon Deaves

  

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