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, 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).
Appears in 1 contract
Sources: Facility Agreement (Pacificorp /Or/)
Security Value. (a) NEGATIVE PLEDGE: PLEDGE No Obligor will, and each Obligor will procure that no other member of the Company Services Group will, create or permit to subsist any Encumbrance on the whole or any part of its respective present or future businessbusinesses, assets or undertakingundertakings, except for the following:-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 Services 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) created or 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 PA Group and existing at the date of their acquisition but not created in contemplation of their acquisition, provided that the maximum principal amount secured by any such Encumbrances is not prohibited by Clause 21.4 and shall not be increased beyond the maximum principal amount secured thereby at the date of such acquisitionacquisition unless otherwise permitted pursuant to the other provisions of this Clause;
(vi) Encumbrances over credit balances on accounts of members of the Bidco PA 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 PA 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- 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, transportation, distribution and/or supply industry or telecommunications or water industry or energy or energy-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 Derivative Transactions permitted by the terms hereof to be undertaken provided that the aggregate of such deposits shall not at any time exceed an amount equal to the aggregate of (Pounds)10,000,000 i) L10,000,000 or the equivalent in other currencies, and (ii) an amount (the "SUPPLEMENTAL AMOUNT") equal to ten percent (10%) of the amount by which the Total Commitment at the date hereof exceed the Total Commitments at the relevant date Provided such Supplemental Amount has been used to secure obligations in respect of Derivative Transactions effected in connection with Borrowings or Hybrid Preferred Securities the net proceeds of which have been used to repay the Facilities permanently;
(ix) the right of a counterparty to two or more Derivative Transactions effected with the same member of the Bidco PA 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 clauses in suppliers' standard terms of business, (or on terms more favourable to the Bidco PA Group) securing only the unpaid purchase price of goods supplied;
(xi) any Encumbrance created by or over the shares or any other ownership interest in or loans to and/or the capital assets of a Project Finance Subsidiary to secure its Project Finance Borrowings or recourse to the holder of such sharesSubsidiary;
(xii) any Encumbrance expressly disclosed against this undertaking listed in writing addressed to the Banks prior to the date hereofTenth Schedule;
(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 created by or over cash providing cash collateral the shares of or any other ownership interest in or loans to and/or the assets of any Subsidiary (incorporated in a country other than the United Kingdom, other than where the sole or principal activity of such Subsidiary is to act as referred the holding company of any other Subsidiaries as described in this paragraph (xiv)) and whose sole or principal activity is (or, after the acquisition, construction or development thereof, is intended to be) the ownership (whether in and whole or in part) and/or operation of a facility for the purposes identified production of heat or generation of electricity and/or a network for the distribution and/or supply of gas, electricity and/or heat, and/or other energy-related facility, or activities related thereto in Clause 2.2(g)each such case not within the United Kingdom, or to act as a holding company for one or more such Subsidiaries.
(xv) any Encumbrance existing on or over the assets of a person (other than a person which is a member of the TEG Group at the date of this Agreement) when it becomes a member of the Services Group after the date of this Agreement, but only if:
(A) the Encumbrance was not created in contemplation of that person becoming a member of the Services Group; and
(xvB) the maximum principal amount of the indebtedness secured by the Encumbrance is not subsequently increased unless otherwise permitted pursuant to any other provision of this Clause 21.3;
(xvi) any Encumbrance over any asset (other than the Shares) acquired by a member of the Services Group after the date of this Agreement as security for, or for indebtedness incurred to finance or refinance (within 6 months of the acquisition of that asset), all or part of the consideration for that acquisition and/or any facility required for working capital and/or general corporate purposes for the business and/or persons so acquired and/or any related Derivative Transactions;
(xvii) any Encumbrance created pursuant to a sale and leaseback, hire purchase or other similar transaction to secure the obligations of a member of the Services Group;
(xviii) any Encumbrance arising pursuant to a finance lease as defined by the Applicable Accounting Principles;
(xix) any Encumbrances over cash deposited with a bank (a) securing liabilities in respect of a letter of credit issued by such bank in support of obligations of a member of the PA Group which obligations are on the Borrowings List or which obligations do not constitute Borrowings, or (b) collateralising obligations of any member of the PA Group incurred in respect of any obligation on the Borrowings List; and
(xx) Encumbrances (other than over the Shares and shares in the capital of a member of the Company Services Group) not otherwise permitted pursuant to paragraphs (i)-(xivi)-(xix) (inclusive) above together securing indebtedness in an aggregate principal amount not exceeding (Pounds)75,000,000 at any time L75,000,000 (or its equivalent in other currencies), Provided that, PA may at any time require by not less than 5 Business Days notice to the Facility Agent that any Borrowing is secured (PARI PASSU with or on a basis subordinated to the Facilities) by the Encumbrances constituted or evidenced by the Security Documents where:
(A) all of the net proceeds of that Borrowing are applied in prepayment in part or in whole of the Facilities;
(B) that Borrowing:
(I) does not have a maturity date,
(II) is not voluntarily prepayable (otherwise than pro rata with the Facility), and
(III) does not amortise before the Final Repayment Date;
(C) the creditors in respect of that Borrowing (or their agent or trustee) have entered into an intercreditor agreement providing that, so long as any amounts or commitments remain owed to or available from any Finance Party, the Banks shall maintain control of voting rights with respect to the Encumbrances constituted or evidenced by the Security Documents (except to the extent otherwise provided in that intercreditor agreement on terms approved (which approval shall not be unreasonably withheld) by the Majority Banks); and
(D) immediately after that Borrowing and partial prepayment, no Default will be continuing.
Appears in 1 contract
Sources: Facility Agreement (Pacificorp /Or/)