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National Express may lose contracts

Lord Adonis, transport secretary, wants to bring East Anglia and c2c routes under state control

The government has a strong legal case for nationalising the c2c and National Express East Anglia franchises after the announcement by National Express that it will hand back its £1.4bn east coast contract, according to a respected rail industry lawyer.

National Express is refusing to relinquish its two remaining rail contracts when it walks away from the London-to-Edinburgh route, as it is expected to do later this year. Lord Adonis, the transport secretary, is determined to strip the group of its other franchises under cross-default guidelines. If he is successful, the state will be the owner of Britain’s most prestigious rail route and two of its busiest commuter franchises by the end of the year.

Nick Olley, a partner at Burges Salmon, said the government’s franchise terms appeared to provide no loopholes. An expert on complex rail contracts, which run into hundreds of pages and lengthy appendices, Olley said that the standard contract, which applies to the east coast, contains a provision which allows: “Termination, as a result of an event of default, of any other franchise agreement to which the franchisee or an affiliate of the franchisee is a party.”

According to Olley, that clause undermines the National Express argument that franchises are standalone entities that have no recourse to their parents. He said: “In the absence of a bespoke amendment I would expect the Department [for Transport, DfT] to be entitled to default the East Anglia or c2c franchises as and when the east coast franchise is terminated as a result of the franchisee’s default. This is because the East Anglia/c2c franchisees will be affiliates of the east coast franchisee.”

today National Express stood by its “clear and detailed” legal advice that it had a strong case. The group said: “National Express believes that the secretary of state would not be permitted … to execute the right of cross-default contained in the franchise agreements for National Express East Anglia and c2c.”

Adonis has warned that National Express will be banished from the rail franchise market if it abandons the east coast line because it will not be able to meet the pre-qualifying criteria for contract bids. However, he has refused to discuss the government’s legal right to cross-default in detail, telling the Guardian that the DfT has “got to take legal advice” before deciding how to proceed.

One rail industry source cautioned that the DfT might need to hire more personnel in order to cope with the demands of running three busy franchises. The DfT announced on Wednesday that it had drafted in Elaine Holt, the former head of the First Capital Connect franchise, to run the east coast route on behalf of the government.

“Has the DfT got the bodies to run three franchises? There are not that many rail executives just hanging around at the moment,” said the source.

Nonetheless, the transport secretary’s refusal to renegotiate the east coast deal, forcing National Express to hand back the keys, is receiving support from senior figures in the transport industry. “Lord Adonis did the right thing. It would have penalised successful franchises otherwise,” said David Begg, a former adviser to the government on transport.

Backers of rail nationalisation, who were out in force on Wednesday, again put pressure on the government to keep the east coast franchise in state hands today. Bob Crow, general secretary of the RMT union, warned of industrial action if Adonis proceeds with plans to return the route to the private sector next year.

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£30bn shortfall hits transport plans

Leak reveals transport funding crisis as east coast mainline nationalised

The full scale of the funding crisis facing Britain’s transport system was exposed today as the country’s most expensive rail contract was nationalised, while details emerged of a potential £30bn spending gap.

A leaked industry memo seen by the Guardian warned of “looming spending cuts” on major transport projects after Department for Transport officials described the consequences of restoring order to public finances. There are now fears that major schemes could be delayed, reduced or scrapped in an expenditure freeze. They include:

• The £16bn Crossrail scheme linking Heathrow airport to Canary Wharf and Essex, which could be delayed.

• A £6bn road building programme including the extension of the hard shoulder on Britain’s motorways, which could be cut.

• A proposed high-speed rail route could be pushed back by a decade.

• The rail fare cap of inflation plus 1% could be lifted, raising fares.

The DfT’s financial constraints were exacerbated as National Express announced it will hand back its £1.4bn east coast contract at the end of the year, the second time in three years that a company has bid more than £1bn for the route and then quit after admitting that it could not afford it. GNER gave up its £1.3bn contract in 2006, only for National Express to place a higher bid less than a year later.

The east coast withdrawal marked a new low in the tense relationship between struggling train operators, who are battling to honour expensive contracts signed before the recession, and the transport secretary, Lord Adonis. He warned that National Express would be barred from the rail market amid uproar that the company was preparing to avoid fulfilling its £1.4bn pledge.

“It is simply unacceptable to reap the benefits of contracts when times are good, only to walk away from them when times become more challenging,” he said. The heavily indebted group also rejected claims by Adonis that it had financial problems and that they had contributed to the sudden departure of its chief executive, Richard Bowker, who shocked colleagues with his resignation shortly before announcement.

It also emerged that the DfT is braced for a reduction in its capital expenditure plans that could total £28.9bn over the next decade. The permanent secretary to the DfT, Robert Devereux, told a private industry conference recently that the chancellor, Alistair Darling, expected the public finances to be brought into line over the next 10 years.

In a presentation described as “very stark” by one person familiar with its contents, Devereux indicated that future growth in capital expenditure would be flat and would no longer include a 1.25% annual increase, limiting the outlay on new projects to £7.4bn per year. A transport industry memo produced after the seminar calculated that without the 1.25% escalator, the DfT would have £28.9bn less to spend than expected on new projects over the next 10 years.

The memo added: “We have been expressing concern for sometime now that spending cuts post-2010 could be significant. What was said at this meeting confirms our worst fears.”

Transport experts said the constraints on capital expenditure could force the government to delay the completion of the £16bn Crossrail project, which will build twin rail tunnels under London, and also to consider road pricing as a means of funding new road schemes.

Stephen Glaister, professor of transport and infrastructure at Imperial College London, said: “Transport is always the department that tends to get the tough end of the cuts because it is capital intensive and you can do short-term cuts without the results being visible for quite a while. And that’s against the picture of a growing market in road and rail. Just to stand still we have to spend a lot of money and that is looking quite unlikely.”

The Office of Rail Regulation, which monitors expenditure on Britain’s rail networks, has admitted that putting together the next five-year budget for the railways will be “tough” due to the state of the public finances.

There is also speculation within the industry that the £3bn-a-year rail budget will have to be propped up by an increase in rail fares above the current regulated limit of inflation plus 1%.

The DfT said the calculations in the memo referred to the department’s “long-term funding guideline” and not to actual budgets, which will be set in the next comprehensive spending review.

“These calculations in no way represent final budgets for the periods referred to and therefore it would be misleading to make assumptions about future spending based on them in isolation,” said a DfT spokesperson. The department added that its £6bn roads programme was “progressing”.

The industry memo warned, however, that a new comprehensive spending review by a Labour or Conservative government will almost certainly target the DfT. It said: “It has historically often seemed less painful to target transport spending, rather than more ‘sensitive’ programmes such as health, education and social security.”

There is widespread speculation within the rail industry that a legal row between the DfT and one of the largest operators, Stagecoach, is driven by the need to conserve funding within the department. Stagecoach is claiming that it is owed at least £200m from its South West Trains contract and has accused officials of behaving inconsistently over the dispute.

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National Express chief to step down

• Group struggles to keep £1.4bn east coast franchise
• Contract must be agreed or given up by end of July

Richard Bowker has resigned as chief executive of National Express as the public transport group struggles to hold on to its £1.4bn east coast rail franchise.

Bowker will step down in August to take up a chief executive post at an unnamed company overseas. His position became increasingly precarious in recent weeks as the government rebuffed attempts to renegotiate Britain’s most expensive rail contract.

The National Express chairman, John Devaney, will take on Bowker’s responsibilities until a replacement is found.

“We would like to thanks Richard for all his efforts in leading National Express over the past three years,” said Devaney. Bowker’s resignation will be confirmed officially this morning when National Express issues a pre-close trading update.

It is likely that the new chief executive will arrive too late to co-ordinate a solution to the east coast contract, which analysts say will have to be renegotiated or handed back to the Department for Transport by the end of the month. National Express requires a rights issue of around £400m to pay down its £1.2bn debt burden, according to market watchers, and investors are understood to be against the move unless the east coast situation is resolved.

Bowker oversaw the record £1.4bn bid for the London-to-Edinburgh route, which committed the group to annual payments that rise from £85m in 2008 to £395m by 2015, leading to industry speculation that his departure would also be a precondition to a rights issue. The contract has become a financial millstone that is expected to lose the company £90m over the next two years. In order to meet its targets the franchise requires passenger revenue growth of around 10% per year, but the latest figures showed a 0.3% increase in turnover as the recession hits demand and forces business passengers – a key earner for the route – to trade down to standard class tickets.

The transport secretary, Lord Adonis, is adamant that a franchise secured by Bowker in 2007 will not be altered. It is understood that the group has also been warned that it will be stripped of its remaining rail franchises – National Express East Anglia and c2c – if it hands back keys to the east coast ahead of a rights issue.

Further discussions between National Express executives and DfT officials on Monday night yielded no further progress, leaving the group with a rapidly narrowing list of options ahead of today’s market update.

National Express is up against the boundaries of a debt covenant that limits its borrowings to no more than 3.5 times its earnings before interest, tax, depreciation and amortisation (EBITDA). Faced with rising east coast payments and the burden of an underperforming Spanish coach business, National Express is widely expected to approach shareholders in a cash call before December, when its debt guidelines are tested again.

The group is also a takeover target, having announced the rejection of a nil-premium approach from rival FirstGroup earlier this week. National Express said it did not consider it appropriate to enter into talks with FirstGroup while it deals with its borrowings and the east coast contract. However, analysts believe that a deal could be attractive to both sets of shareholders if the east coast contract is scrapped or negotiated before a takeover is agreed.

If National Express defaults on east coast and hands back its two remaining contracts, the DfT will have to plug a £1.4bn hole in its rail budget in the depths of a recession, or hand over the running of the franchises to an interim operator while it waits for the market to recover.

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National Express rebuffs FirstGroup

Company says talks with FirstGroup are inappropriate as it struggles with £1.2bn debt and east coast rail franchise

FirstGroup has been warned it must renegotiate Britain’s most expensive rail franchise in order to secure investor approval for a takeover of National Express. Analysts said the £1.4bn National Express East Coast contract would have to be rewritten if FirstGroup were to pull off a deal.

National Express confirmed that it had rebuffed an approach from its rival to create a powerful force in the public transport industry through an all-share transaction. The company said it “does not consider it appropriate” to enter into talks with FirstGroup while it attempts to whittle down a £1.2bn debt burden and deal with its east coast franchise, which must pay the government £1.4bn by 2015. FirstGroup, owner of four franchises, including First Great Western, said it believed there was “significant industrial and commercial logic” in a deal.

The combined group would carry more than 1.4 billion bus passengers and 409 million rail passengers in the UK a year. National Express did not refer directly to the east coast franchise in its statement, but analysts said a deal would be impossible without ending the uncertainty over the contract, which could lose the group £90m over the next two years. Under Department for Transport guidelines, FirstGroup would have to hand back all its rail franchises if it took over the east coast and then had to scrap the contract.

“Clearly east coast is, and remains, an issue,” said Gert Zonneveld, analyst at Panmure Gordon. “It is difficult to see FirstGroup just proposing some sort of a deal with the east coast situation remaining unresolved. If you merge with National Express and then default on east coast, you don’t want to risk having to give your entire rail portfolio away.”

It is understood that Lord Adonis, the transport secretary, will not sanction any takeover that attempts to renegotiate the east coast deal. Under “change of control” provisions in franchises, the company that acquires a rail contract through a takeover must seek the approval of the transport secretary. According to DfT guidelines, the new owner must submit “plans to honour franchise obligations” including proposals for “the long-term future of the franchise.” If the transport secretary is not satisfied, the transfer of the contract can be blocked.

Despite the political opposition to an east coast bailout, investors responded positively to the prospect of a takeover, with shares in National Express rising 9.8% to 302.75p, valuing the group as £417m. FirstGroup’s shares dipped 1.3% to 366p, valuing the business at £1.8bn, as analysts warned that an-all share proposal would have to be topped up with cash and accompanied by a deal on east coast.

“There is an appetite for a deal involving FirstGroup but there may also have to be an element of cash to sweeten it,” said Douglas McNeill at Astaire Securities.

“There will also have to be a reform of the east coast terms in order to assure FirstGroup shareholders that the issue is off the table from day one.” It is understood that FirstGroup is considering a number of options for east coast, including taking on the franchise unchanged.

The takeover approach was made by FirstGroup’s chairman, Martin Gilbert, in a letter that was delivered to the home of his National Express counterpart, John Devaney, on 19 June. A source close to the process said the letter did not suggest a price and did not address competition concerns that would arise from combining two groups, which between them control more than a third of the rail market.

A takeover would also combine the two most indebted public transport groups in the UK. FirstGroup owes £2.5bn after its $3.5bn (£2.1bn) takeover of the US bus business Laidlaw and National Express is cutting costs and selling off subsidiaries to keep below tight debt covenants. In its statement, National Express said it was focused on implementing a “number of initiatives”, which could include further job cuts at a rail business that is already shedding 750 workers.

National Express also owns the C2C and National Express East Anglia franchises. It is expected to update investors on the status of talks with the DfT about east coast when it issues a trading update on Wednesday .

There was also speculation that a takeover would still, if successful, require an equity raising in order to pay down the borrowing accumulated by National Express during its expansion.

“Given FirstGroup’s already high leverage, any approach would no doubt have to be in shares,” said Andrew Fitchie, analyst at Collins Stewart. “Alongside this we’d expect a sizeable equity raise (c£500m) to pay down National Express debt.”


Who owns what

First Group

285m train passenger journeys a year

Britain’s largest bus operator, with 23% of market

Rail franchises

First Capital Connect

First Great Western

First ScotRail

First TransPennine Express

First Hull Trains

Croydon Tramlink

Bus routes in Manchester, Leeds, Bristol, Bath, London

Operations in the US

National Express

164m train passenger journeys a year

320m bus passenger journeys a year

18.5m coach passenger journeys a year

Rail franchises

East coast main line

East Anglia

C2C

Nationwide coach network

Bus routes in West Midlands and Dundee

Operations in the US and Spain

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