Schedule 1 The Parties 72
CΒ LΒ I Β F Β F Β O Β RΒ D | LIMITED LIABILITY PARTNERSHIPΒ | ||
CΒ HΒ AΒ NΒ CΒ E |
Β | ||
Β | CONFORMED COPYΒ | ||
Β | |||
Β | |||
Β£100,000,000
Β
FACILITY
AGREEMENT
Β
dated
4
APRIL 2005
Β
for
Β
CE
ELECTRIC UK FUNDING COMPANY
Β
arranged
by
Β
LLOYDS
TSB BANK PLC
THE
ROYAL BANK OF SCOTLAND PLC
Β
with
Β
LLOYDS
TSB BANK PLC
Β
acting
as Agent
Β | |||
Β |
Β
MULTICURRENCY
REVOLVING FACILITY AGREEMENT
Β |
Β |
Β
Β
Β
CONTENTS
Β | ||
Clause
Β |
Page
Β |
1. |
Definitions
And Interpretation |
1 |
Β
2. |
The
Facility |
14 |
Β
3. |
Purpose |
14 |
Β
4. |
Conditions
Of Utilisation |
14 |
Β
5. |
Utilisation |
18 |
Β
6. |
Optional
Currencies |
19 |
Β
7. |
Repayment |
20 |
Β
8. |
Prepayment
And Cancellation |
20 |
Β
9. |
Interest |
23 |
Β
10. |
Interest
Periods |
24 |
Β
11. |
Changes
To The Calculation Of Interest |
24 |
Β
12. |
Fees |
25 |
Β
13. |
Tax
Gross Up And Indemnities |
27 |
Β
14. |
Increased
Costs |
30 |
Β
15. |
Other
Indemnities |
31 |
Β
16. |
Mitigation
By The Lenders |
32 |
Β
17. |
Costs
And Expenses |
33 |
Β
18. |
Guarantee
And Indemnity |
34 |
Β
19. |
Representations |
37 |
Β
20. |
Information
Undertakings |
39 |
Β
21. |
Financial
Covenants |
43 |
Β
22. |
General
Undertakings |
48 |
Β
23. |
Events
Of Xxxxxxx |
00 |
Β
00. |
Changes
To The Lenders |
54 |
Β
25. |
Role
Of The Agent And The Arranger |
58 |
Β
26. |
Conduct
Of Business By The Finance Parties |
63 |
Β
27. |
Sharing
Among The Finance Parties |
63 |
Β
28. |
Payment
Mechanics |
65 |
Β
29. |
Set-Off |
67 |
Β
30. |
Notices |
67 |
Β
31. |
Calculations
And Certificates |
69 |
Β
32. |
Partial
Invalidity |
69 |
Β
33. |
Remedies
And Waivers |
69 |
Β
34. |
Amendments
And Waivers |
70 |
Β
35. |
Counterparts |
70 |
Β
36. |
Governing
Law |
71 |
Β
37. |
Enforcement |
71 |
Β
Schedule
1
The Parties |
72 |
Part
I The Obligors |
72 |
Part
II The Original Lenders |
73 |
Β
Schedule
2
Conditions Precedent |
Β
74 |
Conditions
Precedent To Initial Utilisation |
74 |
Β
Schedule
3
Requests |
Β
76 |
Β
Schedule
4
Mandatory Cost Formulae |
Β
77 |
Β
Schedule
5
Form Of Transfer Certificate |
Β
80 |
Β
Schedule
6 |
Β
82 |
Part
I Form Of Preliminary Conversion Notice |
82 |
Part
II Form Of Secondary Conversion Notice |
83 |
Β
Schedule
7 |
Β
84 |
Β
Schedule
8
Form Of Compliance Certificate |
Β
86 |
Β
Schedule
9
Lma Form Of Confidentiality Undertaking |
Β
88 |
Schedule
10
Timetables |
93 |
Β
Β
UK/243825/09 |
Β |
R0021/NEW |
Β
CONFORMED
COPY
THIS
AGREEMENT is dated
4 April 2005 and made between:
Β
(1)Β Β |
CE
ELECTRIC UK FUNDING COMPANY (the
"Company"
and the "Guarantor"); |
Β
(2)Β Β |
THE
SUBSIDIARIES of
the Company listed in Part I of Schedule 1 (The
Original Parties)
as borrowers (together with the Company the "Borrowers"); |
Β
(3)Β Β |
LLOYDS
TSB BANK PLC and
THE
ROYAL BANK OF SCOTLAND PLC as
mandated lead arranger(s) (whether acting individually or together the
"Arranger"); |
Β
(4)Β Β |
THE
FINANCIAL INSTITUTIONS listed
in Part II of Schedule 1 (The
Original Parties)
as lenders (the "Original
Lenders");
and |
Β
(5)Β Β |
LLOYDS
TSB BANK PLC as
agent of the other Finance Parties (the "Agent"). |
Β
IT
IS AGREED as
follows:
Β
SECTION
1
INTERPRETATION
Β
Β
1Β Β |
DEFINITIONS
AND INTERPRETATION |
Β
1.1Β Β |
Definitions |
In this
Agreement:
Β
"Additional
Cost Rate" has the
meaning given to it in Schedule 4 (Mandatory
Cost formulae).
Β
"Affiliate" means,
in relation to any person, a Subsidiary of that person or a Holding Company of
that person or any other Subsidiary of that Holding Company.
Β
"Agent's
Spot Rate of Exchange" means
the Agent's spot rate of exchange for the purchase of the relevant currency with
the Base Currency in the London foreign exchange market at or about 11:00 a.m.
on a particular day.
Β
"Authorisation" means
an authorisation, consent, approval, resolution, licence, exemption, filing,
notarisation or registration.
Β
"Authority" means
the Gas and Electricity Markets Authority (including Ofgem).
Β
"Availability
Period"Β means the
period from and including the date of this Agreement to and including one Month
prior to the Termination Date.
Β
"Available
Tranche A Commitment" means a
Lender's Tranche A Commitment minus:
Β
(a)Β Β |
the
Base Currency Amount of its participation in any outstanding Tranche A
Loans; and |
Β
(b)Β Β |
in
relation to any proposed Utilisation, the Base Currency Amount of its
participation in any Tranche A Loans that are due to be made on or before
the proposed Utilisation Date, |
Β
other
than that Lender's participation in any Tranche A Loans that are due to be
repaid or prepaid on or before the proposed Utilisation Date.
Β
1
"Available
Tranche A Facility" means
the aggregate for the time being of each Lender's Available Tranche A
Commitment.
Β
"Available
Tranche B Commitment" means a
Lender's Tranche B Commitment minus:
Β
(a)Β Β |
the
Base Currency Amount of its participation in any outstanding Tranche B
Loans; and |
Β
(b)Β Β |
in
relation to any proposed Utilisation, the Base Currency Amount of its
participation in any Tranche B Loans that are due to be made on or before
the proposed Utilisation Date, |
Β
other
than that Lender's participation in any Tranche B Loans that are due to be
repaid or prepaid on or before the proposed Utilisation Date.
Β
"Available
Tranche B Facility" means
the aggregate for the time being of each Lender's Available Tranche B
Commitment.
Β
"Available
Tranche C Commitment" means a
Lender's Tranche C Commitment minus:
Β
(a)Β Β |
the
Base Currency Amount of its participation in any outstanding Tranche C
Loans; and |
Β
(b)Β Β |
in
relation to any proposed Utilisation, the Base Currency Amount of its
participation in any Tranche C Loans that are due to be made on or before
the proposed Utilisation Date, |
Β
other
than that Lender's participation in any Tranche C Loans that are due to be
repaid or prepaid on or before the proposed Utilisation Date.
Β
"Available
Tranche C Facility" means
the aggregate for the time being of each Lender's Available Tranche C
Commitment.
Β
"Base
Currency" means
sterling.
Β
"Base
Currency Amount" means,
in relation to a Loan, the amount specified in the Utilisation Request delivered
by a Borrower for that Loan (or, if the amount requested is not denominated in
the Base Currency, that amount converted into the Base Currency at the Agent's
Spot Rate of Exchange on the date which is three Business Days before the
Utilisation Date or, if later, on the date the Agent receives the Utilisation
Request) adjusted to reflect any repayment or prepayment of the
Loan.
Β
"Break
Costs" means
the amount (if any) by which:
Β
(a)Β Β |
the
interest which a Lender should have received for the period from the date
of receipt of all or any part of its participation in a Loan or Unpaid Sum
to the last day of the current Interest Period in respect of that Loan or
Unpaid Sum, had the principal amount or Unpaid Sum received been paid on
the last day of that Interest Period; |
Β
2
exceeds:
Β
(b)Β Β |
the
amount which that Lender would be able to obtain by placing an amount
equal to the principal amount or Unpaid Sum received by it on deposit with
a leading bank in the Relevant Interbank Market for a period starting on
the Business Day following receipt or recovery and ending on the last day
of the current Interest Period. |
Β
"Business
Day" means a
day (other than a Saturday or Sunday) on which banks are open for general
business in London and:
Β
(a)Β Β |
(in
relation to any date for payment or purchase of a currency other than
euro) the principal financial centre of the country of that currency;
or |
Β
(b)Β Β |
(in
relation to any date for payment or purchase of euro) any TARGET
Day. |
Β
"Commitment" means
the aggregate for the time being of each Lender's Tranche A Commitment, Tranche
B Commitment and Tranche C Commitment.
Β
"Commitment
Fee Percentage" means
in respect of any Obligor on any day, the percentage determined on the basis of
the Margin applicable to such Obligor on such day (or that would be applicable
had such Obligor drawn a Loan on such day) from time to time as set out in the
following grid:
Β
Margin
(per cent per annum)
Β |
Commitment
Fee Percentage
Β |
0.2%
Β |
30%
Β |
0.25%
Β |
30%
Β |
0.325%
Β |
30%
Β |
0.40%
Β |
40%
Β |
0.475%
Β |
40%
Β |
1.00%
Β |
45%
Β |
1.25%
Β |
45%
Β |
Β
Β
"Compliance
Certificate" means a
certificate substantially in the form set out in ScheduleΒ 8 (Form
of Compliance Certificate).
Β
"Competition
Act" means
the Competition Xxx 0000 (as amended, inter alia, by the Enterprise Act).
Β
3
"Confidentiality
Undertaking" means a
confidentiality undertaking substantially in a recommended form of the LMA as
set out in Schedule 9 (LMA
Form of Confidentiality Undertaking) or in
any other form agreed between the Company and the Agent.
Β
"Default" means
an Event of Default or any event or circumstance specified in Clause
23
(Events
of Default) which
would (with the expiry of a grace period, the giving of notice, the making of
any determination under the Finance Documents or any combination of any of the
foregoing) be an Event of Default.
Β
"DNO
Licence" means
in relation to each Regulated Borrower the distribution licence as amended from
time to time, granted or treated as granted to it by the Authority under section
6(1)(c) of the Electricity Act.
Β
"Electricity
Act" means
the Electricity Xxx 0000 (as amended, inter
alia, by the
Utilities Act 2000).
Β
"Enforcement
Order" means a
final order or a provisional order as those terms are defined in Section 25 of
the Electricity Act.
Β
"Enterprise
Act" means
the Enterprise Xxx 0000.
Β
"Environmental
Claim" means
any claim, proceeding or investigation by any person in respect of any
Environmental Law.
Β
"Environmental
Law" means
any applicable law in any jurisdiction in which any member of the Group conducts
business which relates to the pollution or protection of the environment or harm
to or the protection of human health or the health of animals or
plants.
Β
"Environmental
Permits" means
any permit, licence, consent, approval and other authorisation and the filing of
any notification, report or assessment required under any Environmental Law for
the operation of the business of any member of the Group conducted on or from
the properties owned or used by the relevant member of the Group.
Β
"EURIBOR" means,
in relation to any Loan in euro:
Β
(a)Β Β |
the
applicable Screen Rate; or |
Β
(b)Β Β |
(if
no Screen Rate is available for the Interest Period of that Loan) the
arithmetic mean of the rates (rounded upwards to four decimal places) as
supplied to the Agent at its request quoted by the Reference Banks to
leading banks in the European interbank
market; |
Β
as of the
Specified Time on the Quotation Day for the offering of deposits in euro for a
period comparable to the Interest Period of the relevant Loan.
Β
"Event
of Default" means
any event or circumstance specified as such in ClauseΒ 23
(Events
of Default).
Β
"Facility" means
the revolving loan facility made available under this Agreement as described in
Clause 2
(The
Facility).
Β
4
"Facility
Office" means
the office or offices notified by a Lender to the Agent in writing on or before
the date it becomes a Lender (or, following that date, by not less than five
Business Days' written notice) as the office or offices through which it will
perform its obligations under this Agreement.
Β
"Fee
Letter" means
any letter or letters dated on or about the date of this Agreement between the
Arranger and the Company (or the Agent and the Company) setting out any of the
fees referred to in Clause 12
(Fees).
Β
"Finance
Document" means
this Agreement, the Mandate Letter, any Fee Letter and any other document
designated as such by the Agent and the Company.
Β
"Finance
Party" means
the Agent, the Arranger or a Lender.
Β
"Financial
Indebtedness" means
any indebtedness for or in respect of:
Β
(a)Β Β |
moneys
borrowed; |
Β
(b)Β Β |
any
amount raised by acceptance under any acceptance credit facility or
dematerialised equivalent; |
Β
(c)Β Β |
any
amount raised pursuant to any note purchase facility or the issue of
bonds, notes, debentures, loan stock or any similar instrument;
|
Β
(d)Β Β |
the
amount of any liability in respect of any lease or hire purchase contract
which would, in accordance with GAAP, be treated as a finance or capital
lease; |
Β
(e)Β Β |
receivables
sold or discounted (other than any receivables to the extent they are sold
on a non-recourse basis); |
Β
(f)Β Β |
any
amount raised under any other transaction (including any forward sale or
purchase agreement) having the commercial effect of a
borrowing; |
Β
(g)Β Β |
any
derivative transaction entered into in connection with protection against
or benefit from fluctuation in any rate or price (and, when calculating
the value of any derivative transaction, only the marked to market value
shall be taken into account); |
Β
(h)Β Β |
any
counter-indemnity obligation in respect of a guarantee, indemnity, bond,
standby or documentary letter of credit or any other instrument issued by
a bank or financial institution; |
Β
(i)Β Β |
any
amount raised by the issue of redeemable shares which are by their terms
capable of redemption before the Termination Date;
|
Β
(j)Β Β |
(without
double counting) the amount of any liability in respect of any guarantee
or indemnity for any of the items referred to in paragraphs (a) to (i)
above. |
Β
"GAAP" means
generally accepted accounting principles in England and Wales.
Β
"Group" means
the Company and its Subsidiaries for the time being.
Β
5
"Holding
Company" means,
in relation to a company or corporation, any other company or corporation in
respect of which it is a Subsidiary.
Β
"Interest
Period" means,
in relation to a Loan, each period determined in accordance with
ClauseΒ 10
(Interest
Periods)Β and
in relation to an Unpaid Sum, each period determined in accordance with
ClauseΒ 9.3
(Default
interest).
Β
"Lender"
means:
Β
(a)Β Β |
any
Original Lender; and |
Β
(b)Β Β |
any
bank, financial institution, trust, fund or other entity which has become
a Party in accordance with Clause 24
(Changes
to the Lenders), |
Β
which in
each case has not ceased to be a Party in accordance with the terms of this
Agreement.
Β
"LIBOR" means,
in relation to any Loan:
Β
(a)Β Β |
the
applicable Screen Rate; or |
Β
(b)Β Β |
(if
no Screen Rate is available for the currency or Interest Period of that
Loan) the arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Agent at its request quoted by the Reference
Banks to leading banks in the London interbank
market, |
Β
as of the
Specified Time on the Quotation Day for the offering of deposits in the currency
of that Loan and for a period comparable to the Interest Period for that
Loan.
Β
"LMA" means
the Loan Market Association.
Β
"Loan" means a
Tranche A Loan, a Tranche B Loan or a Tranche C Loan.
Β
"Majority
Lenders"
means:
Β
(a)Β Β |
if
there are no Loans then outstanding, a Lender or Lenders whose Commitments
aggregate more than 662/3%
of the Total Commitments (or, if the Total Commitments have been reduced
to zero, aggregated more than 662/3%
of the Total Commitments immediately prior to the reduction); or
|
Β
(b)Β Β |
at
any other time, a Lender or Lenders whose participations in the Loans then
outstanding aggregate more than 662/3%
of all the Loans then outstanding. |
Β
"Mandate
Letter" means
the letter dated 4 April 2005 between the Arranger and the Company.
Β
"Mandatory
Cost" means
the percentage rate per annum calculated by the Agent in accordance with
Schedule 4 (Mandatory
Cost formulae).
Β
"Margin" for a
Loan shall be determined on the basis of the Xxxxx'x Rating and/or S&P
Rating of the relevant Borrower of that Loan as set out in the following
grid:
Β
6
Xxxxx'x
Rating/S&P Rating
Β |
Margin
(per
cent per annum)
Β |
A2/A
or above
Β |
0.2%
Β |
A3/A-
Β |
0.25%
Β |
Baa1/BBB+
Β |
0.325%
Β |
Baa2/BBB
Β |
0.40%
Β |
Baa3/BBB-
Β |
0.475%
Β |
Ba1/BB+
Β |
1.0%
Β |
Ba2/BB
or below
Β |
1.25%
Β |
Β
If the
Xxxxx'x Rating and the S&P Rating in respect of a Borrower differ, the
Margin for each Loan borrowed by that Borrower shall be determined on the basis
of the higher of the two ratings and, while a Default is continuing or while no
Xxxxx'x Rating or S&P Rating is assigned in respect of that Borrower, the
Margin for each Loan borrowed by that Borrower shall be the percentage per annum
set out above based on the assumption that the Xxxxx'x Rating and the S&P
Rating were Ba2 or BB or below. If a rating has been assigned by either Moody's
or S&P but not both then the Margin shall be determined on the basis of that
rating. The changes to the Margin for a Loan as set out above shall take effect
5 Business Days after the Agent has received written notice in accordance with
paragraph (b) of Clause 20.4
(Information:
miscellaneous).
Β
"Material
Adverse Effect"Β means a
material adverse effect on:
Β
(a)Β Β |
the
business, operations, property or condition (financial or otherwise) of
the Group taken as a whole; |
Β
(b)Β Β |
the
ability of an Obligor to perform its payment obligations and comply with
the requirements of Clause 21
(Financial
Covenants)
under the Finance Documents; or |
Β
(c)Β Β |
the
validity or enforceability of the Finance Documents or the rights or
remedies of any Finance Party under the Finance
Documents. |
Β
"Month" means a
period starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month, except that:
Β
(a)Β Β |
(subject
to paragraph (c) below) if the numerically corresponding day is not a
Business Day, that period shall end on the next Business Day in that
calendar month in which that period is to end if there is one, or if there
is not, on the immediately preceding Business Day;
|
Β
7
(b)Β Β |
if
there is no numerically corresponding day in the calendar month in which
that period is to end, that period shall end on the last Business Day in
that calendar month; and |
Β
(c)Β Β |
if
an Interest Period begins on the last Business Day of a calendar month,
that Interest Period shall end on the last Business Day in the calendar
month in which that Interest Period is to
end. |
Β
The above
rules will only apply to the last Month of any period.
Β
"Moody's" means
Xxxxx'x Investors Service, Inc.
Β
"Xxxxx'x
Rating" means,
in respect of each Borrower, the senior unsecured debt rating of that Borrower
assigned by Moody's from time to time.
Β
"NEDL" means
Northern Electric Distribution Limited.
Β
"Obligor" means a
Borrower or the Guarantor.
Β
"Ofgem" means
the Office of Gas and Electricity Markets operating under the direction and
governance of the Authority.
Β
"Optional
Currency" means a
currency (other than the Base Currency) which complies with the conditions set
out in Clause 4.3
(Conditions
relating to Optional Currencies).
Β
"Original
Financial Statements"
means:
Β
(a)Β Β |
in
relation to the Company, the audited consolidated financial statements of
the Group for the financial year ended 31 December
2003;Β and |
Β
(b)Β Β |
in
relation to each Borrower, its audited financial statements for its
financial year ended 31 December 2003. |
Β
"Participating
Member State" means
any member state of the European Communities that adopts or has adopted the euro
as its lawful currency in accordance with legislation of the European Community
relating to Economic and Monetary Union.
Β
"Party" means a
party to this Agreement.
Β
"Preliminary
Conversion Notice" means a
notice substantially in the form set out in Part I of Schedule 6 (Form
of Preliminary Conversion Notice)
Β
"Qualifying
Lender" has the
meaning given to it in Clause 13
(Tax
gross-up and indemnities).
Β
"Quotation
Day" means,
in relation to any period for which an interest rate is to be
determined:
Β
(a)Β Β |
(if
the currency is domestic sterling) the first day of that period;
|
Β
(b)Β Β |
(if
the currency is euro) two TARGET Days before the first day of that period;
or |
Β
8
(c)Β Β |
(for
any other currency) two Business Days before the first day of that period,
|
Β
unless
market practice differs in the Relevant Interbank Market for a currency, in
which case the Quotation Day for that currency will be determined by the Agent
in accordance with market practice in the Relevant Interbank Market (and if
quotations would normally be given by leading banks in the Relevant Interbank
Market on more than one day, the Quotation Day will be the last of those
days).
Β
"Regulated
Borrower" means
each of YED plc and NEDL.
Β
"Reference
Banks" means,
in relation to LIBOR and Mandatory Cost the principal London offices of Lloyds
TSB Bank plc and The Royal Bank of Scotland plc and, in relation to EURIBOR, the
principal office in London of Lloyds TSB Bank plc and The Royal Bank of Scotland
plc or such other banks as may be appointed by the Agent in consultation with
the Company.
Β
"Relevant
Interbank Market" means
in relation to euro, the European interbank market, and, in relation to any
other currency, the London interbank market.
Β
"Repeating
Representations" means
each of the representations set out in Clauses 19.1
(Status) to
19.6
(Governing
law and enforcement), Clause
19.9
(No
default),
sub-paragraph (a) of Clause 19.10
(No
misleading information), Clause
19.12
(Pari
passu ranking), Clause
19.13
(No
proceedings pending or threatened), Clause
19.14
(Environmental
Compliance) and
Clause 19.15
(Environmental
Claim).
Β
"Rollover
Loan" means
one or more Loans:
Β
(a)Β Β |
made
or to be made on the same day that a maturing Loan is due to be
repaid; |
Β
(b)Β Β |
the
aggregate amount of which is equal to or less than the maturing
Loan; |
Β
(c)Β Β |
in
the same currency as the maturing Loan (unless it arose as a result of the
operation of Clause 6.2
(Unavailability
of a currency));
and |
Β
(d)Β Β |
made
or to be made to the same Borrower for the purpose of refinancing a
maturing Loan. |
Β
"Screen
Rate"
means:
Β
(a)Β Β |
in
relation to LIBOR, the British Bankers' Association Interest Settlement
Rate for the relevant currency and period; and
|
Β
(b)Β Β |
in
relation to EURIBOR, the percentage rate per annum determined by the
Banking Federation of the European Union for the relevant
period, |
Β
displayed
on the appropriate page of the Reuters screen. If the agreed page is replaced or
service ceases to be available, the Agent may specify another page or service
displaying the appropriate rate after consultation with the Company and the
Lenders.
Β
9
"Secondary
Conversion Notice" means a
Notice substantially in the form set out in Part II of Schedule 6 (Form
of Secondary Conversion Notice)
Β
"Security" means a
mortgage, charge, pledge, lien or other security interest securing any
obligation of any person or any other agreement or arrangement having a similar
effect.
Β
"S&P" means
Standard & Poors Rating Group, a division of McGraw Hill Inc., a New York
corporation.
Β
"S&P
Rating" means
in respect of each Borrower, the senior, unsecured debt rating of that Borrower
assigned by S&P from time to time.
Β
"Specified
Time" means a
time determined in accordance with Schedule 10 (Timetables).
Β
"Subsidiary" means a
subsidiary undertaking within the meaning of section 258 of the Companies Xxx
0000.
Β
"TARGET" means
Trans-European Automated Real-time Gross Settlement Express Transfer payment
system.
Β
"TARGET
Day" means
any day on which TARGET is open for the settlement of payments in
euro.
Β
"Tax" means
any tax, levy, impost, duty or other charge or withholding of a similar nature
(including any penalty or interest payable in connection with any failure to pay
or any delay in paying any of the same).
Β
"Taxes
Act" means
the Income and Corporation Taxes Xxx 0000.
Β
"Termination
Date" means
the date falling 60 Months after the date of this Agreement.
Β
"Total
Commitments" means
the aggregate of the Commitments being Β£100,000,000 at the date of this
Agreement.
Β
"Tranche" means
Tranche A, Tranche B or Tranche C.
Β
"Tranche
A" has the
meaning ascribed to it in paragraph (a) of Clause 2.1
(The
Facility).
Β
"Tranche
A Commitment"
means:
Β
(a)Β Β |
in
relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Tranche
A Commitment"
in Part II of Schedule 1 (The
Original Parties)
and the amount of any other Tranche A Commitment transferred to it under
this Agreement or to be transferred to it following delivery of a
Secondary Conversion Notice; and |
Β
(b)Β Β |
in
relation to any other Lender, the amount in the Base Currency of any
Tranche A Commitment transferred to it under this Agreement
|
Β
10
to the
extent not cancelled, reduced or transferred by it under this Agreement (or to
be reduced or transferred by it following delivery of a Preliminary Conversion
Notice or a Secondary Conversion Notice).
Β
"Tranche
A Loan" means a
loan made under Tranche A or the principal amount outstanding for the time being
of that loan.
Β
"Tranche
B" has the
meaning ascribed to it in paragraph (b) of Clause 2.1
(The
Facility).
Β
"Tranche
B Commitment"
means:
Β
(a)Β Β |
in
relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Tranche
B Commitment"
in Part II of Schedule 1 (The
Original Parties)
and the amount of any other Tranche B Commitment transferred to it under
this Agreement or to be transferred to it following delivery of a
Preliminary Conversion Notice or a Secondary Conversion Notice; and
|
Β
(b)Β Β |
in
relation to any other Lender, the amount in the Base Currency of any
Tranche B Commitment transferred to it under this Agreement
|
Β
to the
extent not cancelled, reduced or transferred by it under this Agreement (or to
be reduced or transferred by it following delivery of a Preliminary Conversion
Notice or a Secondary Conversion Notice).
Β
"Tranche
B Loan" means a
loan made under Tranche B or the principal amount outstanding for the time being
of that loan.
Β
"Tranche
C" has the
meaning ascribed to it in paragraph (c) of Clause 2.1
(The
Facility).
Β
"Tranche
C Commitment"
means:
Β
(a)Β Β |
in
relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Tranche
C Commitment"
in Part II of Schedule 1 (The
Original Parties)
and the amount of any other Tranche C Commitment transferred to it under
this Agreement or to be transferred to it following delivery of a
Preliminary Conversion Notice or a Secondary Conversion Notice; and
|
Β
(b)Β Β |
in
relation to any other Lender, the amount in the Base Currency of any
Tranche C Commitment transferred to it under this Agreement
|
Β
to the
extent not cancelled, reduced or transferred by it under this Agreement (or to
be reduced or transferred by it following delivery of a Preliminary Conversion
Notice or a Secondary Conversion Notice).
Β
"Tranche
C Loan" means a
loan made under Tranche C or the principal amount outstanding for the time being
of that loan.
Β
"Transfer
Certificate" means a
certificate substantially in the form set out in ScheduleΒ 5 (Form
of Transfer Certificate) or any
other form agreed between the Agent and the Company.
Β
11
"Transfer
Date" means,
in relation to a transfer, the later of:
Β
(a)Β Β |
the
proposed Transfer Date specified in the Transfer Certificate; and
|
Β
(b)Β Β |
the
date on which the Agent executes the Transfer
Certificate. |
Β
"Unpaid
Sum" means
any sum due and payable but unpaid by an Obligor under the Finance Documents.
Β
"Utilisation" means a
utilisation of the Facility.
Β
"Utilisation
Date" means
the date of a Utilisation, being the date on which the relevant Loan is to be
made.
Β
"Utilisation
Request" means a
notice substantially in the form set out in Schedule 3 (Requests).
Β
"VAT" means
value added tax as provided for in the Value Added Tax Xxx 0000 and any other
tax of a similar nature.
Β
"YED
plc" means
Yorkshire Electricity Distribution plc.
Β
1.2Β Β |
ConstructionΒ |
(a)Β Β |
Unless
a contrary indication appears any reference in this Agreement
to: |
Β
(i)Β Β |
the
"Agent",
the "Arranger",
any "Finance
Party",
any "Lender",
any "Obligor"
or any "Party"
shall be construed so as to include its successors in title, permitted
assigns and permitted transferees; |
Β
(ii)Β Β |
"assets"
includes present and future properties, revenues and rights of every
description; |
Β
(iii)Β Β |
a
"Finance
Document"
or any other agreement or instrument is a reference to that Finance
Document or other agreement or instrument as amended or
novated; |
Β
(iv)Β Β |
"indebtedness"
includes any obligation (whether incurred as principal or as surety) for
the payment or repayment of money, whether present or future, actual or
contingent; |
Β
(v)Β Β |
a
"person"
includes any person, firm, company, corporation, government, state or
agency of a state or any association, trust or partnership (whether or not
having separate legal personality) of two or more of the
foregoing; |
Β
(vi)Β Β |
a
"regulation"
includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law) of any governmental,
intergovernmental or supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation;
|
Β
(vii)Β Β |
a
provision of law is a reference to that provision as amended or
re-enacted; and |
Β
12
(viii)Β Β |
a
time of day is a reference to London time. |
Β
(b)Β Β |
Section,
Clause and Schedule headings are for ease of reference
only. |
Β
(c)Β Β |
Unless
a contrary indication appears, a term used in any other Finance Document
or in any notice given under or in connection with any Finance Document
has the same meaning in that Finance Document or notice as in this
Agreement. |
Β
(d)Β Β |
A
Default (other than an Event of Default) is "continuing"
if it has not been remedied or waived and an Event of Default is
"continuing"
if it has not been remedied or waived. |
Β
1.3Β Β |
Currency
Symbols and Definitions |
"$" and
"dollars" denote
lawful currency of the United States of America "Β£" and
"sterling" denotes
lawful currency of the United Kingdom and "EUR" and
"euro" means
the single currency unit of the Participating Member States.
Β
1.4Β Β |
Third
party rights |
(a)Β Β |
Unless
expressly provided to the contrary in a Finance Document, a person who is
not a Party has no right under the Contracts (Rights of Third Parties) Act
1999 (the "Third
Parties Act")
to enforce or to enjoy the benefit of any term of this
Agreement. |
Β
(b)Β Β |
Notwithstanding
any term of any Finance Document, the consent of any person who is not a
Party is not required to rescind or vary this Agreement at any
time. |
Β
13
SECTION
2
THE
FACILITY
Β
Β
2.Β Β |
THE
FACILITY |
Β
2.1Β Β |
The
Facility |
Subject
to the terms of this Agreement (including, without limitation, Clause 4.5
(Reallocation), the
Lenders make available a multicurrency revolving loan facility in an aggregate
amount equal to the Total Commitments in three tranches in maximum principal
amounts as follows:
Β
(a)Β Β |
to
the Company, Loans in an aggregate amount equal to the Tranche A
Commitments ("Tranche
A"); |
Β
(b)Β Β |
to
YED plc, Loans in an aggregate amount equal to the Tranche B Commitments
("Tranche
B");
and |
Β
(c)Β Β |
to
NEDL, Loans in an aggregate amount equal to the Tranche C Commitments
("Tranche
C"). |
Β
2.2Β Β |
Finance
Parties' rights and obligationsΒ |
(a)Β Β |
The
obligations of each Finance Party under the Finance Documents are several.
Failure by a Finance Party to perform its obligations under the Finance
Documents does not affect the obligations of any other Party under the
Finance Documents. No Finance Party is responsible for the obligations of
any other Finance Party under the Finance
Documents. |
Β
(b)Β Β |
The
rights of each Finance Party under or in connection with the Finance
Documents are separate and independent rights and any debt arising under
the Finance Documents to a Finance Party from an Obligor shall be a
separate and independent debt. |
Β
(c)Β Β |
A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance
Documents. |
Β
Β
3.Β Β |
PURPOSE |
Β
3.1Β Β |
Purpose |
Each
Borrower shall apply all amounts borrowed by it under the Facility towards its
general corporate purposes.
Β
3.2Β Β |
Monitoring |
No
Finance Party is bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement.
Β
Β
4.Β Β |
CONDITIONS
OF UTILISATION |
Β
4.1Β Β |
Initial
conditions precedentΒ |
No
Borrower may deliver a Utilisation Request unless the Agent has received all of
the documents and other evidence listed in Schedule 2 (Conditions
precedent) in form
and substance satisfactory to the Agent. The Agent shall notify the Company and
the Lenders promptly upon being so satisfied.
Β
14
4.2Β Β |
Further
conditions precedent |
The
Lenders will only be obliged to comply with Clause 5.4
(Lenders'
participation) if on
the date of the Utilisation Request and on the proposed Utilisation
Date:
Β
(a)Β Β |
in
the case of a Rollover Loan, no Event of Default is continuing or would
result from the proposed Loan, and, in the case of any other Loan, no
Default is continuing or would result from the proposed Loan;
and |
Β
(b)Β Β |
the
Repeating Representations to be made by each Obligor are true in all
material respects. |
Β
4.3Β Β |
Conditions
relating to Optional Currencies |
(a)Β Β |
A
currency will constitute an Optional Currency in relation to a Loan
if: |
Β
(i)Β Β |
it
is readily available in the amount required and freely convertible into
the Base Currency in the Relevant Interbank Market on the Quotation Day
and the Utilisation Date for that Loan; and |
Β
(ii)Β Β |
it
is dollars or euro or has been approved by the Agent (acting on the
instructions of all the Lenders) on or prior to receipt by the Agent of
the relevant Utilisation Request for that
Loan. |
Β
(b)Β Β |
If
the Agent has received a written request from the Company for a currency
to be approved under paragraph (a)(ii) above, the Agent will confirm to
the Company by the Specified Time: |
Β
(i)Β Β |
whether
or not the Lenders have granted their approval;
and |
Β
(ii)Β Β |
if
approval has been granted, the minimum amount for any subsequent
Utilisation in that currency. |
Β
4.4Β Β |
Maximum
number of Loans |
(a)Β Β |
A
Borrower may not deliver a Utilisation Request if as a result of the
proposed Utilisation eleven or more Loans would be
outstanding. |
Β
(b)Β Β |
Any
Loan made by a single Lender under Clause 6.2
(Unavailability
of a currency)
shall not be taken into account in this Clause 4.4. |
Β
4.5Β Β |
Reallocation |
(a)Β Β |
The
Company may not less than 5 Business Days prior to the Preliminary
Conversion Date (as defined below), deliver a Preliminary Conversion
Notice to the Agent, requesting that: |
Β
(i)Β Β |
all
or part of the Tranche A Commitments (the "Converted
Amount")
shall be cancelled; and |
Β
15
(ii)Β Β |
simultaneously
the Tranche B Commitments and/or the Tranche C Commitments shall be
increased in an aggregate amount equal to the Converted Amount (and as
between Tranche B and Tranche C in such proportions as the Company shall
specify in the Preliminary Conversion
Notice), |
Β
in each
case on the date (the "Preliminary
Conversion Date")
determined in accordance with paragraph (b) below.
Β
(b)Β Β |
If
the Converted Amount: |
Β
(i)Β Β |
exceeds
the Available Tranche A Commitments, the Preliminary Conversion Date shall
(if there is only one Tranche A Loan outstanding) be the last day of the
Interest Period for the Tranche A Loan outstanding on the date of the
Preliminary Conversion Notice and (otherwise) shall be the last day of the
Interest Period for a Tranche A Loan outstanding on the date of the
Preliminary Conversion Notice which has a maturity date falling after the
maturity date of any other Interest Period for Tranche A Loans outstanding
on the date of the Preliminary Conversion Notice (and prior to the
Preliminary Conversion Date each subsequent Interest Period for a Tranche
A Loan shall be of such duration that it ends on or before the Preliminary
Conversion Date); |
Β
(ii)Β Β |
is
equal to or less than the Available Tranche A Commitments, the Preliminary
Conversion Date shall be the date falling 5 Business Days after the date
of the Preliminary Conversion Notice. |
Β
(c)Β Β |
Upon
delivery of a Preliminary Conversion Notice, the Agent shall promptly
notify the Lenders and on the Preliminary Conversion
Date: |
Β
(i)Β Β |
each
Lender's Tranche A Commitment shall be cancelled on a pro rata basis in an
aggregate amount equal to the Converted Amount; and
|
Β
(ii)Β Β |
each
Lender's Tranche B Commitment and/or Tranche C Commitment shall be
increased on a pro rata basis in an aggregate amount equal to the
Converted Amount to be allocated between Tranche B and/or Tranche C in the
proportions specified in the Preliminary Conversion Notice.
|
Β
(d)Β Β |
Subject
to paragraph (e) below, the Company may not less than 5 Business Days
prior to the Secondary Conversion Date (as defined below) and thereafter
on each anniversary of such Secondary Conversion Date, deliver a Secondary
Conversion Notice to the Agent requesting that a Base Currency amount of
up to Β£25,000,000 be reallocated between Tranche A, Tranche B and/or
Tranche C in the proportions specified in the Secondary Conversion Notice
on the date (the "Secondary
Conversion Date")
determined in accordance with paragraph (g)
below. |
Β
(e)Β Β |
At
no time during the subsistence of this Agreement may the Tranche A
Commitments exceed Β£25,000,000. |
Β
16
(f)Β Β |
Upon
delivery of a Secondary Conversion Notice, the Agent shall promptly notify
the Lenders and on the Secondary Conversion
Date: |
Β
(i)Β Β |
each
Lender's Commitments under a relevant Tranche (a "Reducing
Tranche")
shall be cancelled on a pro rata basis in an aggregate amount equal to the
amount specified in the Secondary Conversion Notice (the "Reduced
Amount");
and |
Β
(ii)Β Β |
each
Lender's Tranche A Commitment, Tranche B Commitment and/or Tranche C
Commitment (as applicable) under a relevant Tranche (an "Increasing
Tranche")
shall be increased on a pro rata basis by an amount equal to the amount
specified in the Secondary Conversion
Notice. |
Β
(g)Β Β |
If
the Reduced Amount under a Reducing
Tranche: |
Β
(i)Β Β |
exceeds
the Available Tranche A Commitments, Available Tranche B Commitments or
Available Tranche C Commitments (as applicable) under that Reducing
Tranche, the Secondary Conversion Date shall (if there is only one Loan
outstanding under the relevant Tranche) be the last day of the Interest
Period for the Loan under that Reducing Tranche outstanding on the date of
the Secondary Conversion Notice and (otherwise) shall be the last day of
the Interest Period for a Loan outstanding under that Reducing Tranche
which has a maturity date falling after the maturity date of any other
Interest Period for Loans under that Reducing Tranche outstanding on the
date of the Secondary Conversion Notice (and prior to the Secondary
Conversion Date each subsequent Interest Period for a Loan under that
Reducing Tranche shall be of such duration that it ends on or before the
Secondary Conversion Date); |
Β
(ii)Β Β |
is
equal to or less than the Available Tranche A Commitments, Available
Tranche B Commitments or Available Tranche C Commitments (as applicable)
under that Reducing Tranche, the Secondary Conversion Date shall be the
date falling 5 Business Days after the date of the Secondary Conversion
Notice. |
Β
Β
Β
17
SECTION
3
UTILISATION
Β
Β
5.Β Β |
UTILISATION |
Β
5.1Β Β |
Delivery
of a Utilisation Request |
A
Borrower may utilise the Facility by delivery to the Agent of a duly completed
Utilisation Request not later than the Specified Time.
Β
5.2Β Β |
Completion
of a Utilisation Request |
(a)Β Β |
Each
Utilisation Request is irrevocable and will not be regarded as having been
duly completed unless: |
Β
(i)Β Β |
the
proposed Utilisation Date is a Business Day within the Availability
Period; |
Β
(ii)Β Β |
the
Borrower which has delivered the Utilisation Request is permitted by the
terms of this Agreement to borrow the amount requested
therein; |
Β
(iii)Β Β |
the
currency and amount of the Utilisation comply with Clause 5.3
(Currency
and amount);
and |
Β
(iv)Β Β |
the
proposed Interest Period complies with Clause 10
(Interest
Periods). |
Β
(b)Β Β |
Only
one Loan may be requested in each Utilisation
Request. |
Β
5.3Β Β |
Currency
and amount |
(a)Β Β |
The
currency specified in a Utilisation Request must be the Base Currency or
an Optional Currency. |
Β
(b)Β Β |
The
amount of the proposed Loan must be: |
Β
(i)Β Β |
if
the currency selected is the Base Currency, a minimum of Β£1,000,000 or if
less, the Available Tranche A Facility, Available Tranche B Facility or
Available Tranche C Facility (as applicable);
or |
Β
(ii)Β Β |
if
the currency selected is dollars or euros, a minimum of $1,000,000 or
EUR1,000,000 respectively or if less, the Available Tranche A Facility,
Available Tranche B Facility or Available Tranche C Facility (as
applicable); or |
Β
(iii)Β Β |
if
the currency selected is an Optional Currency, the minimum amount
specified by the Agent pursuant to paragraph (b) (ii) of Clause
4.3
(Conditions
relating to Optional Currencies)
or, if less, the Available Tranche A Facility, Available Tranche B
Facility or Available Tranche C Facility (as applicable);
and |
Β
(iv)Β Β |
in
any event such that its Base Currency Amount is less than or equal to the
Available Tranche A Facility, Available Tranche B Facility or Available
Tranche C Facility (as applicable). |
Β
18
5.4Β Β |
Lenders'
participation |
(a)Β Β |
If
the conditions set out in this Agreement have been met, each Lender shall
make its participation in each Loan available by the Utilisation Date
through its Facility Office. |
Β
(b)Β Β |
The
amount of each Lender's participation in each Tranche A Loan will be equal
to the proportion borne by its Available Tranche A Commitment to the
Available Tranche A Facility immediately prior to making the
Loan. |
Β
(c)Β Β |
The
amount of each Lender's participation in each Tranche B Loan will be equal
to the proportion borne by its Available Tranche B Commitment to the
Available Tranche B Facility immediately prior to making the
Loan. |
Β
(d)Β Β |
The
amount of each Lender's participation in each Tranche C Loan will be equal
to the proportion borne by its Available Tranche C Commitment to the
Available Tranche C Facility immediately prior to making the
Loan. |
Β
(e)Β Β |
The
Agent shall determine the Base Currency Amount of each Loan which is to be
made in an Optional Currency and shall notify each Lender of the amount,
currency and the Base Currency Amount of each Loan and the amount of its
participation in that Loan, in each case by the Specified
Time. |
Β
Β
6.Β Β |
OPTIONAL
CURRENCIES |
Β
6.1Β Β |
Selection
of currency |
A
Borrower shall select the currency of a Loan in a Utilisation
Request.
Β
6.2Β Β |
Unavailability
of a currency |
If before
the Specified Time on any Quotation Day:
Β
(a)Β Β |
a
Lender notifies the Agent that the Optional Currency requested is not
readily available to it in the amount required;
or |
Β
(b)Β Β |
a
Lender notifies the Agent that compliance with its obligation to
participate in a Loan in the proposed Optional Currency would contravene a
law or regulation applicable to it, |
Β
the Agent
will give notice to the relevant Borrower to that effect by the Specified Time
on that day. In this event, any Lender that gives notice pursuant to this Clause
6.2 will be
required to participate in the Loan in the Base Currency (in an amount equal to
that Lender's proportion of the Base Currency Amount or, in respect of a
Rollover Loan, an amount equal to that Lender's proportion of the Base Currency
Amount of the Rollover Loan that is due to be made) and its participation will
be treated as a separate Loan denominated in the Base Currency during that
Interest Period.
Β
6.3Β Β |
Participation
in a Loan |
Each
Lender's participation in a Loan will be determined in accordance with paragraph
(b) of Clause 5.4
(Lenders'
participation).
Β
19
SECTION
4
REPAYMENT,
PREPAYMENT AND CANCELLATION
Β
Β
7.Β Β |
REPAYMENT |
Β
7.1Β Β |
Repayment
of Loans |
Each
Borrower which has drawn a Loan shall repay that Loan on the last day of its
Interest Period.
Β
Β
8.Β Β |
PREPAYMENT
AND CANCELLATION |
Β
8.1Β Β |
Illegality |
If, at
any time, it is or will become unlawful in any applicable jurisdiction for a
Lender to perform any of its obligations as contemplated by this Agreement or to
fund or maintain its participation in any Loan:
Β
(a)Β Β |
that
Lender shall promptly notify the Agent upon becoming aware of that
event; |
Β
(b)Β Β |
upon
the Agent notifying the Company, the Commitment of that Lender will be
immediately cancelled; and |
Β
(c)Β Β |
each
Borrower shall repay that Lender's participation in the Loans made to that
Borrower on the last day of the Interest Period for each Loan occurring
after the Agent has notified the Company or, if earlier, the date
specified by the Lender in the notice delivered to the Agent (being no
earlier than the last day of any applicable grace period permitted by
law). |
Β
8.2Β Β |
Change
of control |
(a)Β Β |
If
a Change of Control occurs: |
Β
(i)Β Β |
the
Company shall promptly notify the Agent upon becoming aware of that event;
and |
Β
(ii)Β Β |
if
a Lender so requires, the Agent shall, by notifying each Borrower and the
Company not more than 30 days after the date on which it received
notification from the Company in accordance with paragraph (a)(i) above,
cancel the Commitment of that Lender and declare the participation of that
Lender in all outstanding Loans, together with accrued interest and all
other amounts accrued under the Finance Documents due and payable,
whereupon the Commitment of that Lender will be cancelled and all such
outstanding amounts will become immediately due and payable on the date
specified in such notice. |
Β
(b)Β Β |
For
the purposes of paragraph (a) above, a "Change
of Control"
shall occur if: |
Β
(i)Β Β |
MidAmerican
Energy Holdings Company ceases to own, directly or indirectly, the entire
issued share capital of the Company; or |
Β
(ii)Β Β |
the
Company ceases to own directly or indirectly the entire issued share
capital of each Regulated Borrower. |
Β
20
8.3Β Β |
Voluntary
cancellation |
(a)Β Β |
The
Company may, if it gives the Agent not less than 5 Business Days' (or such
shorter period as the Majority Lenders may agree) prior notice, cancel the
whole or any part (being a minimum amount of Β£5,000,000) of the Available
Tranche A Facility. Any cancellation under this paragraph (a) shall reduce
the Tranche A Commitments of the Lenders
rateably. |
Β
(b)Β Β |
The
Borrower under Tranche B may, if it gives the Agent not less than 5
Business Days (or such shorter period as the Majority Lenders may agree)
prior notice, cancel the whole or any part (being a minimum amount of
Β£5,000,000) of the Available Tranche B Facility. Any cancellation under
this paragraph (b) shall reduce the Tranche B Commitments of the Lenders
rateably. |
Β
(c)Β Β |
The
Borrower under Tranche C may, if it gives the Agent not less than 5
Business Days (or such shorter period as the Majority Lenders may agree)
prior notice, cancel the whole or any part (being a minimum amount of
Β£5,000,000) of the Available Tranche C Facility. Any cancellation under
this paragraph (c) shall reduce the Tranche C Commitments of the Lenders
rateably. |
Β
8.4Β Β |
Voluntary
prepayment of Loans |
The
Borrower to which a Loan has been made may, if it gives the Agent not less than
5 Business Days' (or such shorter period as the Majority Lenders may agree)
prior notice, prepay the whole or any part of a Loan (but, if in part, being an
amount that reduces the Base Currency Amount of the Loan by a minimum amount of
Β£1,000,000).
Β
8.5Β Β |
Right
of repayment and cancellation in relation to a single
Lender |
(a)Β Β |
If: |
Β
(i)Β Β |
any
sum payable to any Lender by an Obligor is required to be increased under
paragraph (c) of Clause 13.2
(Tax
gross-up);
or |
Β
(ii)Β Β |
any
Lender claims indemnification from the Company under Clause 13.3
(Tax
indemnity)
or Clause 14.1
(Increased
costs),
|
Β
the
relevant Obligor may, whilst the circumstance giving rise to the requirement or
indemnification continues, give the Agent notice of cancellation of the
Commitment of that Lender and its intention to procure the repayment of that
Lender's participation in the Loans.
Β
(b)Β Β |
On
receipt of a notice referred to in paragraph (a) above, the Commitment of
that Lender shall immediately be reduced to
zero. |
Β
(c)Β Β |
On
the last day of each Interest Period which ends after the relevant Obligor
has given notice under paragraph (a) above (or, if earlier, the date
specified by the Obligor in that notice), each Borrower to which a Loan is
outstanding shall repay that Lender's participation in that
Loan. |
Β
21
8.6Β Β |
Restrictions |
(a)Β Β |
Any
notice of cancellation or prepayment given by any Party under this Clause
8
shall be irrevocable and, unless a contrary indication appears in this
Agreement, shall specify the date or dates upon which the relevant
cancellation or prepayment is to be made and the amount of that
cancellation or prepayment. |
Β
(b)Β Β |
Any
prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Break Costs, without
premium or penalty. |
Β
(c)Β Β |
Unless
a contrary indication appears in this Agreement any part of the Facility
which is prepaid may be reborrowed in accordance with the terms of this
Agreement. |
Β
(d)Β Β |
The
Borrowers shall not repay or prepay all or any part of the Loans or cancel
all or any part of the Commitments except at the times and in the manner
expressly provided for in this Agreement. |
Β
(e)Β Β |
Subject
to Clause 4.5
(Reallocation)
no amount of the Total Commitments cancelled under this Agreement may be
subsequently reinstated. |
Β
(f)Β Β |
If
the Agent receives a notice under this Clause 8 it
shall promptly forward a copy of that notice to either the Company or the
affected Lender, as appropriate. |
Β
22
SECTION
5
COSTS
OF UTILISATION
Β
Β
9.Β Β |
INTEREST |
Β
9.1Β Β |
Calculation
of interest |
The rate
of interest on each Loan for each Interest Period is the percentage rate per
annum which is the aggregate of the applicable:
Β
(a)Β Β |
Margin; |
Β
(b)Β Β |
LIBOR
or, in relation to any Loan in euro, EURIBOR;
and |
Β
(c)Β Β |
Mandatory
Cost, if any. |
Β
9.2Β Β |
Payment
of interest |
The
Borrower to which a Loan has been made shall pay accrued interest on that Loan
on the last day of each Interest Period (and, if the Interest Period is longer
than six Months, on the dates falling at six Monthly intervals after the first
day of the Interest Period).
Β
9.3Β Β |
Default
interest |
(a)Β Β |
If
an Obligor fails to pay any amount payable by it under a Finance Document
on its due date, interest shall accrue on the overdue amount from the due
date up to the date of actual payment (both before and after judgment) at
a rate which, subject to paragraph (b) below, is one per cent higher than
the rate which would have been payable if the overdue amount had, during
the period of non-payment, constituted a Loan in the currency of the
overdue amount for successive Interest Periods, each of a duration
selected by the Agent (acting reasonably). Any interest accruing under
this Clause 9.3
shall be immediately payable by the Obligor on demand by the
Agent. |
Β
(b)Β Β |
If
any overdue amount consists of all or part of a Loan which became due on a
day which was not the last day of an Interest Period relating to that
Loan: |
Β
(i)Β Β |
the
first Interest Period for that overdue amount shall have a duration equal
to the unexpired portion of the current Interest Period relating to that
Loan; and |
Β
(ii)Β Β |
the
rate of interest applying to the overdue amount during that first Interest
Period shall be one per cent. higher than the rate which would have
applied if the overdue amount had not become
due. |
Β
(c)Β Β |
Default
interest (if unpaid) arising on an overdue amount will be compounded with
the overdue amount at the end of each Interest Period applicable to that
overdue amount but will remain immediately due and
payable. |
Β
9.4Β Β |
Notification
of rates of interest |
The Agent
shall promptly notify the Lenders and the relevant Borrower of the determination
of a rate of interest under this Agreement.
Β
23
Β
10.Β Β |
INTEREST
PERIODS |
Β
10.1Β Β |
Selection
of Interest Periods |
(a)Β Β |
A
Borrower may select an Interest Period for a Loan in the Utilisation
Request for that Loan. |
Β
(b)Β Β |
Subject
to this Clause 10, a
Borrower may select an Interest Period of one, two, three or six Months or
any other period agreed between the relevant Borrower and the Agent
(acting on the instructions of all the Lenders).
|
Β
(c)Β Β |
An
Interest Period for a Loan shall not extend beyond the Termination
Date. |
Β
(d)Β Β |
Each
Interest Period for a Loan shall start on the Utilisation
Date. |
Β
(e)Β Β |
A
Loan has one Interest Period only. |
Β
10.2Β Β |
Non-Business
Days |
If an
Interest Period would otherwise end on a day which is not a Business Day, that
Interest Period will instead end on the next Business Day in that calendar month
(if there is one) or the preceding Business Day (if there is not).
Β
11.Β Β |
CHANGES
TO THE CALCULATION OF INTEREST |
Β
11.1Β Β |
Absence
of quotations |
Subject
to Clause 11.2
(Market
disruption), if
LIBOR or, if applicable, EURIBOR is to be determined by reference to the
Reference Banks but a Reference Bank does not supply a quotation by the
Specified Time on the Quotation Day, the applicable LIBOR or EURIBOR shall be
determined on the basis of the quotations of the remaining Reference
Banks.
Β
11.2Β Β |
Market
disruption |
(a)Β Β |
If
a Market Disruption Event occurs in relation to a Loan for any Interest
Period, then the rate of interest on each Lender's share of that Loan for
the Interest Period shall be the rate per annum which is the sum
of: |
Β
(i)Β Β |
the
Margin; |
Β
(ii)Β Β |
the
rate notified to the Agent by that Lender as soon as practicable and in
any event before interest is due to be paid in respect of that Interest
Period, to be that which expresses as a percentage rate per annum the cost
to that Lender of funding its participation in that Loan from whatever
source it may reasonably select; and |
Β
(iii)Β Β |
the
Mandatory Cost, if any, applicable to that Lender's participation in the
Loan. |
Β
(b)Β Β |
In
this Agreement "Market
Disruption Event"
means: |
Β
(i)Β Β |
at
or about noon on the Quotation Day for the relevant Interest Period the
Screen Rate is not available and none or only one of the Reference Banks
supplies a rate to the Agent to determine LIBOR or, if applicable, EURIBOR
for the relevant currency and Interest Period;
or |
Β
24
(ii)Β Β |
before
close of business in London on the Quotation Day for the relevant Interest
Period, the Agent receives notifications from a Lender or Lenders (whose
participations in a Loan exceed 35 per cent. of that Loan) that the cost
to it of obtaining matching deposits in the Relevant Interbank Market
would be in excess of LIBOR or, if applicable,
EURIBOR. |
Β
11.3Β Β |
Alternative
basis of interest or funding |
(a)Β Β |
If
a Market Disruption Event occurs and the Agent or a Borrower so requires,
the Agent and that Borrower shall enter into negotiations (for a period of
not more than thirty days) with a view to agreeing a substitute basis for
determining the rate of interest. |
Β
(b)Β Β |
Any
alternative basis agreed pursuant to paragraph (a) above shall, with the
prior consent of all the Lenders and the Borrower, be binding on all
Parties. |
Β
11.4Β Β |
Break
Costs |
(a)Β Β |
Each
Borrower shall, within three Business Days of demand by a Finance Party,
pay to that Finance Party its Break Costs attributable to all or any part
of a Loan or Unpaid Sum being paid by that Borrower on a day other than
the last day of an Interest Period for that Loan or Unpaid
Sum. |
Β
(b)Β Β |
Each
Lender shall, as soon as reasonably practicable after a demand by the
Agent, provide a certificate confirming the amount of its Break Costs for
any Interest Period in which they accrue. |
Β
12.Β Β |
FEES |
Β
12.1Β Β |
Commitment
fee |
(a)Β Β |
The
Company shall pay to the Agent (for the account of each Lender) a fee in
the Base Currency computed at the rate of the Commitment Fee Percentage
applicable to it on the daily amount of that Lender's Available Tranche A
Commitment for the Availability Period. |
Β
(b)Β Β |
YED
plc shall pay to the Agent (for the account of each Lender) a fee in the
Base Currency computed at the rate of the Commitment Fee Percentage
applicable to it on the daily amount of that Lender's Available Tranche B
Commitment for the Availability Period. |
Β
(c)Β Β |
NEDL
shall pay to the Agent (for the account of each Lender) a fee in the Base
Currency computed at the rate of the Commitment Fee Percentage applicable
to it on the daily amount of that Lender's Available Tranche C Commitment
for the Availability Period. |
Β
(d)Β Β |
The
accrued commitment fee is payable on the last day of each successive
period of three Months which ends during the Availability Period, on the
Preliminary Conversion Date, on each Secondary Conversion Date on the last
day of the Availability Period and, if cancelled in full, on the cancelled
amount of the relevant Lender's Commitment at the time the cancellation is
effective. |
Β
25
12.2Β Β |
Co-ordination
and Documentation fee |
The
Company shall pay to The Royal Bank of Scotland plc as co-ordinator of the
Facility a co-ordination and documentation fee in the amount and at the times
agreed in a Fee Letter.
Β
12.3Β Β |
Agency
fee |
The
Company shall pay to the Agent (for its own account) an agency fee in the amount
and at the times agreed in a Fee Letter.
Β
26
SECTION
6
ADDITIONAL
PAYMENT OBLIGATIONS
Β
Β
13.Β Β |
TAX
GROSS UP AND INDEMNITIES |
Β
13.1Β Β |
Definitions |
(a)Β Β |
In
this Agreement: |
Β
"Protected
Party" means a
Finance Party which is or will be subject to any liability, or required to make
any payment, for or on account of Tax in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be received or
receivable) under a Finance Document.
Β
"Qualifying
Lender" means a
Lender which is beneficially entitled to interest payable to that Lender in
respect of an advance under a Finance Document and is:
Β
(i)Β Β |
a
Lender: |
Β
(A)Β Β |
which
is a bank (as defined for the purpose of section 349 of the Taxes Act)
making an advance under a Finance Document;
or |
Β
(B)Β Β |
in
respect of an advance made under a Finance Document by a person that was a
bank (as defined for the purpose of section 349 of the Taxes Act) at the
time that that advance was
made, |
Β
and which
is within the charge to United Kingdom corporation tax as respects any payments
of interest made in respect of that advance.
Β
(ii)Β Β |
a
Treaty Lender. |
Β
"Tax
Credit" means a
credit against, relief or remission for, or repayment of any Tax.
Β
"Tax
Deduction" means a
deduction or withholding for or on account of Tax from a payment under a Finance
Document.
Β
"Tax
Payment" means
either the increase in a payment made by an Obligor to a Finance Party under
Clause 13.2 (Tax
gross-up) or a payment under Clause 13.3 (Tax
indemnity).
Β
"Treaty
Lender" means a
Lender which:
Β
(i)Β Β |
is
treated as a resident of a Treaty State for the purposes of the Treaty;
and |
Β
(ii)Β Β |
does
not carry on a business in the United Kingdom through a permanent
establishment with which that Lender's participation in the Loan is
effectively connected; |
Β
"Treaty
State" means a
jurisdiction having a double taxation agreement (a "Treaty") with
the United Kingdom which makes provision for full exemption from tax imposed by
the United Kingdom on interest.
Β
27
(b)Β Β |
Unless
a contrary indication appears, in this Clause 13 a
reference to "determines" or "determined" means a determination made in
the absolute discretion of the person making the
determination. |
Β
13.2Β Β |
Tax
gross-up |
(a)Β Β |
Each
Obligor shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by
law. |
Β
(b)Β Β |
Each
Obligor shall promptly upon becoming aware that it must make a Tax
Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the Agent accordingly. Similarly, a Lender shall notify
the Agent on becoming so aware in respect of a payment payable to that
Lender. If the Agent receives such notification from a Lender it shall
notify the Company and that Obligor. |
Β
(c)Β Β |
If
a Tax Deduction is required by law to be made by an Obligor, the amount of
the payment due from that Obligor shall be increased to an amount which
(after making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been required.
|
Β
(d)Β Β |
An
Obligor is not required to make an increased payment to a Lender under
paragraph (c) above for a Tax Deduction in respect of tax imposed by the
United Kingdom from a payment of interest on a Loan, if on the date on
which the payment falls due: |
Β
(i)Β Β |
the
payment could have been made to the relevant Lender without a Tax
Deduction if it was a Qualifying Lender, but on that date that Lender is
not or has ceased to be a Qualifying Lender other than as a result of any
change after the date it became a Lender under this Agreement in (or in
the interpretation, administration, or application of) any law or Treaty,
or any published practice or concession of any relevant taxing authority;
or |
Β
(ii)Β Β |
the
relevant Lender is a Treaty Lender and the Obligor making the payment is
able to demonstrate that the payment could have been made to the Lender
without the Tax Deduction had that Lender complied with its obligations
under paragraph (g) below. |
Β
(e)Β Β |
If
an Obligor is required to make a Tax Deduction, that Obligor shall make
that Tax Deduction and any payment required in connection with that Tax
Deduction within the time allowed and in the minimum amount required by
law. |
Β
(f)Β Β |
Within
thirty days of making either a Tax Deduction or any payment required in
connection with that Tax Deduction, the Obligor making that Tax Deduction
shall deliver to the Agent for the Finance Party entitled to the payment
evidence reasonably satisfactory to that Finance Party that the Tax
Deduction has been made or (as applicable) any appropriate payment paid to
the relevant taxing authority. |
Β
28
(g)Β Β |
A
Treaty Lender and each Obligor which makes a payment to which that Treaty
Lender is entitled shall co-operate in completing any procedural
formalities necessary for that Obligor to obtain authorisation to make
that payment without a Tax Deduction. |
Β
13.3Β Β |
Tax
indemnity |
(a)Β Β |
An
Obligor shall (within three Business Days of demand by the Agent) pay to a
Protected Party an amount equal to the loss, liability or cost which that
Protected Party determines will be or has been (directly or indirectly)
suffered for or on account of Tax by that Protected Party in respect of a
Finance Document. |
Β
(b)Β Β |
Paragraph
(a) above shall not apply: |
Β
(i)Β Β |
with
respect to any Tax assessed on a Finance
Party: |
Β
(A)Β Β |
under
the law of the jurisdiction in which that Finance Party is incorporated
or, if different, the jurisdiction (or jurisdictions) in which that
Finance Party is treated as resident for tax purposes; or
|
Β
(B)Β Β |
under
the law of the jurisdiction in which that Finance Party's Facility Office
is located in respect of amounts received or receivable in that
jurisdiction, |
Β
if that
Tax is imposed on or calculated by reference to the net income received or
receivable (but not any sum deemed to be received or receivable) by that Finance
Party; or
Β
(ii)Β Β |
to
the extent a loss, liability or cost: |
Β
(A)Β Β |
is
compensated for by an increased payment under Clause 13.2
(Tax
gross-up);
or |
Β
(B)Β Β |
would
have been compensated for by an increased payment under Clause
13.2
(Tax
gross-up)
but was not so compensated solely because one of the exclusions in
paragraph (d) of Clause 13.2
(Tax
gross-up)
applied. |
Β
(c)Β Β |
A
Protected Party making, or intending to make a claim under paragraph (a)
above shall promptly notify the Agent of the event which will give, or has
given, rise to the claim, following which the Agent shall notify the
Obligor. |
Β
(d)Β Β |
A
Protected Party shall, on receiving a payment from an Obligor under this
Clause 13.3,
notify the Agent. |
Β
13.4Β Β |
Tax
Credit |
If an
Obligor makes a Tax Payment and the relevant Finance Party determines that:
Β
(a)Β Β |
a
Tax Credit is attributable either to an increased payment of which that
Tax Payment forms part, or to that Tax Payment; and
|
Β
(b)Β Β |
that
Finance Party has obtained, utilised and retained that Tax Credit,
|
Β
29
the
Finance Party shall pay an amount to the Obligor which that Finance Party
determines will leave it (after that payment) in the same after-Tax position as
it would have been in had the Tax Payment not been required to be made by the
Obligor.
Β
13.5Β Β |
Stamp
taxes |
The
Company shall pay and, within three Business Days of demand, indemnify each
Finance Party against any cost, loss or liability that Finance Party incurs in
relation to all stamp duty, registration and other similar Taxes payable in
respect of any Finance Document.
Β
13.6Β Β |
Value
added tax |
(a)Β Β |
All
amounts set out, or expressed to be payable under a Finance Document by
any Party to a Finance Party which (in whole or in part) constitute the
consideration for VAT purposes shall be deemed to be exclusive of any VAT
which is chargeable on each supply, and accordingly, subject to paragraph
(c) below, if VAT is chargeable on any supply made by any Finance Party to
any Party under a Finance Document, that Party shall pay to the Finance
Party (in addition to and at the same time as paying the consideration) an
amount equal to the amount of the VAT (and such Finance Party shall
promptly provide an appropriate VAT invoice to such
Party). |
Β
(b)Β Β |
If
VAT is chargeable on any supply made by any Finance Party (the
"Supplier")
to any other Finance Party (the "Recipient")
under a Finance Document, and any Party (the "Relevant
Party")
is required by the terms of any Finance Document to pay an amount equal to
the consideration for such supply to the Supplier (rather than being
required to reimburse the Recipient in respect of that consideration),
such Party shall also pay to the Supplier (in addition to and at the same
time as paying such amount) an amount equal to the amount of such VAT. The
Recipient will promptly pay to the Relevant Party an amount equal to any
credit or repayment from the relevant tax authority which it reasonably
determines relates to the VAT chargeable on that
supply. |
Β
(c)Β Β |
Where
a Finance Document requires any Party to reimburse a Finance Party for any
costs or expenses, that Party shall also at the same time pay and
indemnify the Finance Party against all VAT incurred by the Finance Party
in respect of the costs or expenses to the extent that the Finance Party
reasonably determines that neither it nor any other member of any group of
which it is a member for VAT purposes is entitled to credit or repayment
from the relevant tax authority in respect of the
VAT. |
Β
Β
14.Β Β |
INCREASED
COSTS |
Β
14.1Β Β |
Increased
costs |
(a)Β Β |
Subject
to Clause 14.3
(Exceptions)
an Obligor shall, within three Business Days of a demand by the Agent, pay
for the account of a Finance Party the amount of any Increased Costs
incurred by that Finance Party or any of its Affiliates as a result of (i)
the introduction of or any change in (or in the interpretation,
administration or application of) any law or regulation or (ii) compliance
with any law or regulation made after the date of this
Agreement. |
Β
30
(b)Β Β |
In
this Agreement "Increased
Costs"
means: |
Β
(i)Β Β |
a
reduction in the rate of return from the Facility or on a Finance Party's
(or its Affiliate's) overall capital; |
Β
(ii)Β Β |
an
additional or increased cost; or |
Β
(iii)Β Β |
a
reduction of any amount due and payable under any Finance
Document, |
Β
which is
incurred or suffered by a Finance Party or any of its Affiliates to the extent
that it is attributable to that Finance Party having entered into its Commitment
or funding or performing its obligations under any Finance
Document.
Β
14.2Β Β |
Increased
cost claims |
(a)Β Β |
A
Finance Party intending to make a claim pursuant to Clause 14.1
(Increased
costs)
shall notify the Agent of the event giving rise to the claim, following
which the Agent shall promptly notify the relevant
Obligor. |
Β
(b)Β Β |
Each
Finance Party shall, as soon as practicable after a demand by the Agent,
provide a certificate confirming the amount of its Increased
Costs. |
Β
14.3Β Β |
Exceptions |
(a)Β Β |
Clause
14.1
(Increased
costs)
does not apply to the extent any Increased Cost
is: |
Β
(i)Β Β |
attributable
to a Tax Deduction required by law to be made by an
Obligor; |
Β
(ii)Β Β |
compensated
for by Clause 13.3
(Tax
indemnity)Β (or
would have been compensated for under Clause 13.3
(Tax
indemnity)
but was not so compensated solely because any of the exclusions in
paragraph (b) of Clause 13.3
(Tax
indemnity)
applied); |
Β
(iii)Β Β |
compensated
for by the payment of the Mandatory Cost;
or |
Β
(iv)Β Β |
attributable
to the wilful breach by the relevant Finance Party or its Affiliates of
any law or regulation. |
Β
(b)Β Β |
In
this Clause 14.3, a
reference to a "Tax
Deduction"
has the same meaning given to the term in Clause 13.1
(Definitions). |
Β
Β
15.Β Β |
OTHER
INDEMNITIES |
Β
15.1Β Β |
Currency
indemnity |
(a)Β Β |
If
any sum due from an Obligor under the Finance Documents (a "Sum"),
or any order, judgment or award given or made in relation to a Sum, has to
be converted from the currency (the "First
Currency")
in which that Sum is payable into another currency (the "Second
Currency")
for the purpose of: |
Β
(i)Β Β |
making
or filing a claim or proof against that
Obligor; |
Β
(ii)Β Β |
obtaining
or enforcing an order, judgment or award in relation to any litigation or
arbitration proceedings, |
Β
31
that
Obligor shall as an independent obligation, within three Business Days of
demand, indemnify each Finance Party to whom that Sum is due against any cost,
loss or liability arising out of or as a result of the conversion including any
discrepancy between (A) the rate of exchange used to convert that Sum from the
First Currency into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.
Β
(b)Β Β |
Each
Obligor waives any right it may have in any jurisdiction to pay any amount
under the Finance Documents in a currency or currency unit other than that
in which it is expressed to be payable. |
Β
15.2Β Β |
Other
indemnities |
An
Obligor shall within three Business Days of demand, indemnify each Finance Party
against any cost, loss or liability incurred by that Finance Party as a result
of:
Β
(a)Β Β |
the
occurrence of any Event of Default; |
Β
(b)Β Β |
a
failure by an Obligor to pay any amount due under a Finance Document on
its due date, including without limitation, any cost, loss or liability
arising as a result of Clause 27
(Sharing
among the Finance Parties); |
Β
(c)Β Β |
funding,
or making arrangements to fund, its participation in a Loan requested by a
Borrower in a Utilisation Request but not made by reason of the operation
of any one or more of the provisions of this Agreement (other than by
reason of default or negligence by that Finance Party alone);
or |
Β
(d)Β Β |
a
Loan (or part of a Loan) not being prepaid in accordance with a notice of
prepayment given by a Borrower. |
Β
15.3Β Β |
Indemnity
to the Agent |
An
Obligor shall promptly indemnify the Agent against any cost, loss or liability
incurred by the Agent (acting reasonably) as a result of:
Β
(a)Β Β |
investigating
any event which it reasonably believes is a Default;
or |
Β
(b)Β Β |
entering
into or performing any foreign exchange contract for the purposes of
Clause 6
(Optional
Currencies);
or |
Β
(c)Β Β |
acting
or relying on any notice, request or instruction which it reasonably
believes to be genuine, correct and appropriately
authorised. |
Β
Β
16.Β Β |
MITIGATION
BY THE LENDERS |
Β
16.1Β Β |
Mitigation |
(a)Β Β |
Each
Finance Party shall, in consultation with the Obligors, take all
reasonable steps to mitigate any circumstances which arise and which would
result in any amount becoming payable under or pursuant to, or cancelled
pursuant to, any of Clause 8.1
(Illegality),
Clause 13
(Tax
gross-up and indemnities),
Clause 14
(Increased
costs)
or paragraph 3 of Schedule 4 (Mandatory
Cost formulae)
including (but not limited to) |
Β
32
transferring
its rights and obligations under the Finance Documents to another Affiliate or
Facility Office.
Β
(b)Β Β |
Paragraph
(a) above does not in any way limit the obligations of any Obligor under
the Finance Documents. |
Β
16.2Β Β |
Limitation
of liability |
(a)Β Β |
An
Obligor shall indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken by it
under Clause 16.1
(Mitigation). |
Β
(b)Β Β |
A
Finance Party is not obliged to take any steps under Clause 16.1
(Mitigation)
if, in the opinion of that Finance Party (acting reasonably), to do so
might be prejudicial to it. |
Β
Β
17.Β Β |
COSTS
AND EXPENSES |
Β
17.1Β Β |
Transaction
expenses |
An
Obligor shall promptly on demand pay the Agent and the Arranger the amount of
all out of pocket costs and expenses (including legal fees up to the amount of
any cap agreed in respect thereof) reasonably incurred by any of them in
connection with the negotiation, preparation, printing, execution and
syndication of:
Β
(a)Β Β |
this
Agreement and any other documents referred to in this Agreement;
and |
Β
(b)Β Β |
any
other Finance Documents executed after the date of this
Agreement. |
Β
17.2Β Β |
Amendment
costs |
If (a) an
Obligor requests an amendment, waiver or consent or (b) an amendment is required
pursuant to Clause 28.9
(Change
of currency), an
Obligor shall, within three Business Days of demand, reimburse the Agent for the
amount of all costs and expenses (including legal fees) reasonably incurred by
the Agent in responding to, evaluating, negotiating or complying with that
request or requirement.
Β
17.3Β Β |
Enforcement
costs |
An
Obligor shall, within three Business Days of demand, pay to each Finance Party
the amount of all costs and expenses (including legal fees) incurred by that
Finance Party in connection with the enforcement of, or the preservation of any
rights under, any Finance Document.
Β
33
SECTION
7
GUARANTEE
Β
Β
18.Β Β |
GUARANTEE
AND INDEMNITYΒ |
Β
18.1Β Β |
Guarantee
and indemnityΒ |
The
Guarantor irrevocably and unconditionally:
Β
(a)Β Β |
guarantees
to each Finance Party punctual performance by each other Borrower of all
that Borrower's obligations under the Finance Documents;
|
Β
(b)Β Β |
undertakes
with each Finance Party that whenever a Borrower does not pay any amount
when due under or in connection with any Finance Document, the Guarantor
shall immediately on demand pay that amount as if it was the principal
obligor; and |
Β
(c)Β Β |
indemnifies
each Finance Party immediately on demand against any cost, loss or
liability suffered by that Finance Party if any obligation guaranteed by
it is or becomes unenforceable, invalid or illegal. The amount of the
cost, loss or liability shall be equal to the amount which that Finance
Party would otherwise have been entitled to
recover. |
Β
18.2Β Β |
Continuing
guarantee |
This
guarantee is a continuing guarantee and will extend to the ultimate balance of
sums payable by any Obligor under the Finance Documents, regardless of any
intermediate payment or discharge in whole or in part.
Β
18.3Β Β |
Reinstatement |
If any
payment by an Obligor or any discharge given by a Finance Party (whether in
respect of the obligations of any Obligor or any security for those obligations
or otherwise) is avoided or reduced as a result of insolvency or any similar
event:
Β
(a)Β Β |
the
liability of each Obligor shall continue as if the payment, discharge,
avoidance or reduction had not occurred;
and |
Β
(b)Β Β |
each
Finance Party shall be entitled to recover the value or amount of that
security or payment from each Obligor, as if the payment, discharge,
avoidance or reduction had not occurred. |
Β
18.4Β Β |
Waiver
of defences |
The
obligations of the Guarantor under this Clause 18 will not
be affected by an act, omission, matter or thing which, but for this Clause,
would reduce, release or prejudice any of its obligations under this Clause
18 (without
limitation and whether or not known to it or any Finance Party)
including:
Β
(a)Β Β |
any
time, waiver or consent granted to, or composition with, any Obligor or
other person; |
Β
34
(b)Β Β |
the
release of any other Obligor or any other person under the terms of any
composition or arrangement with any creditor of any member of the
Group; |
Β
(c)Β Β |
the
taking, variation, compromise, exchange, renewal or release of, or refusal
or neglect to perfect, take up or enforce, any rights against, or security
over assets of, any Obligor or other person or any non-presentation or
non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any
security; |
Β
(d)Β Β |
any
incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of an Obligor or any other
person; |
Β
(e)Β Β |
any
amendment (however fundamental) or replacement of a Finance Document or
any other document or security; |
Β
(f)Β Β |
any
unenforceability, illegality or invalidity of any obligation of any person
under any Finance Document or any other document or security;
or |
Β
(g)Β Β |
any
insolvency or similar proceedings. |
Β
18.5Β Β |
Immediate
recourse |
The
Guarantor waives any right it may have of first requiring any Finance Party (or
any trustee or agent on its behalf) to proceed against or enforce any other
rights or security or claim payment from any person before claiming from the
Guarantor under this Clause 18. This
waiver applies irrespective of any law or any provision of a Finance Document to
the contrary.
Β
18.6Β Β |
Appropriations |
Until all
amounts which may be or become payable by the Obligors under or in connection
with the Finance Documents have been irrevocably paid in full, each Finance
Party (or any trustee or agent on its behalf) may:
Β
(a)Β Β |
refrain
from applying or enforcing any other moneys, security or rights held or
received by that Finance Party (or any trustee or agent on its behalf) in
respect of those amounts, or apply and enforce the same in such manner and
order as it sees fit (whether against those amounts or otherwise) and the
Guarantor shall not be entitled to the benefit of the same; and
|
Β
(b)Β Β |
hold
in an interest-bearing suspense account any moneys received from the
Guarantor or on account of the Guarantor's liability under this Clause
18. |
Β
18.7Β Β |
Deferral
of Guarantor's rights |
Until all
amounts which may be or become payable by the Obligors under or in connection
with the Finance Documents have been irrevocably paid in full and unless the
Agent otherwise directs, the Guarantor will not exercise any rights which it may
have by reason of performance by it of its obligations under the Finance
Documents:
Β
(a)Β Β |
to
be indemnified by an Obligor; |
Β
35
(b)Β Β |
to
claim any contribution from any other guarantor of any Obligor's
obligations under the Finance Documents;
and/or |
Β
(c)Β Β |
to
take the benefit (in whole or in part and whether by way of subrogation or
otherwise) of any rights of the Finance Parties under the Finance
Documents or of any other guarantee or security taken pursuant to, or in
connection with, the Finance Documents by any Finance
Party. |
Β
18.8Β Β |
Additional
security |
This
guarantee is in addition to and is not in any way prejudiced by any other
guarantee or security now or subsequently held by any Finance
Party.
Β
Β
36
SECTION
8
REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT
Β
Β
19.Β Β |
REPRESENTATIONS |
Β
Each
Obligor makes the representations and warranties set out in this Clause
19 to each
Finance Party on the date of this Agreement.
Β
19.1Β Β |
Status |
(a)Β Β |
It
is a corporation, duly incorporated and validly existing under the law of
its jurisdiction of incorporation. |
Β
(b)Β Β |
It
and each of its Subsidiaries has the power to own its assets and carry on
its business as it is being conducted. |
Β
19.2Β Β |
Binding
obligations |
The
obligations expressed to be assumed by it in each Finance Document are, subject
to any general principles of law as at the date of this Agreement limiting its
obligations which are specifically referred to in any legal opinion delivered
pursuant to Clause 4
(Conditions
of Utilisation), legal,
valid, binding and enforceable obligations.
Β
19.3Β Β |
Non-conflict
with other obligations |
The entry
into and performance by it of, and the transactions contemplated by, the Finance
Documents do not and will not conflict with:
Β
(a)Β Β |
any
law or regulation applicable to it; |
Β
(b)Β Β |
its
or any of its Subsidiaries' constitutional documents;
or |
Β
(c)Β Β |
any
agreement or instrument binding upon it or any of its Subsidiaries or any
of its or any of its Subsidiaries' assets to an extent which could
reasonably be expected to have a Material Adverse
Effect. |
Β
19.4Β Β |
Power
and authority |
It has
the power to enter into, perform and deliver, and has taken all necessary action
to authorise its entry into, performance and delivery of, the Finance Documents
to which it is a party and the transactions contemplated by those Finance
Documents.
Β
19.5Β Β |
Validity
and admissibility in evidence |
(a)Β Β |
All
Authorisations required: |
Β
(i)Β Β |
to
enable it lawfully to enter into, exercise its rights and comply with its
obligations in the Finance Documents to which it is a party;
and |
Β
(ii)Β Β |
to
make the Finance Documents to which it is a party admissible in evidence
in its jurisdiction of incorporation, |
Β
have been
obtained or effected and are in full force and effect.
Β
(b)Β Β |
All
material Authorisations (including, without limitation, in the case of
each Regulated Borrower pursuant to its DNO Licence) necessary for the
conduct of its |
Β
37
business,
trade and ordinary activities have been obtained and effected and are in full
force and effect.
Β
19.6Β Β |
Governing
law and enforcement |
(a)Β Β |
The
choice of English law as the governing law of the Finance Documents will
be recognised and enforced in its jurisdiction of
incorporation. |
Β
(b)Β Β |
Any
judgment obtained in England in relation to a Finance Document will be
recognised and enforced in its jurisdiction of
incorporation. |
Β
19.7Β Β |
Deduction
of Tax |
It is not
required to make any deduction for or on account of Tax from any payment it may
make under any Finance Document.
Β
19.8Β Β |
No
filing or stamp taxes |
Under the
law of its jurisdiction of incorporation it is not necessary that the Finance
Documents be filed, recorded or enrolled with any court or other authority in
that jurisdiction or that any stamp, registration or similar tax be paid on or
in relation to the Finance Documents or the transactions contemplated by the
Finance Documents.
Β
19.9Β Β |
No
default |
(a)Β Β |
No
Event of Default is continuing or might reasonably be expected to result
from the making of any Utilisation. |
Β
(b)Β Β |
No
other event or circumstance is outstanding which constitutes a default
under any other agreement or instrument which is binding on it or any of
its Subsidiaries or to which its (or any of its Subsidiaries') assets are
subject which might reasonably be expected to have a Material Adverse
Effect. |
Β
19.10Β Β |
No
misleading information |
(a)Β Β |
Any
written factual information provided by any member of the Group (the
"Information")
was true and accurate in all material respects as at the date it was
provided or as at the date (if any) at which it is
stated. |
Β
(b)Β Β |
Any
financial projections contained in the Information have been prepared on
the basis of recent historical information and on the basis of assumptions
believed by it to be reasonable. |
Β
(c)Β Β |
Nothing
has occurred or been omitted from the Information and no information has
been given or withheld that results in the Information taken as a whole
being untrue or misleading in any material respect.
|
Β
19.11Β Β |
Financial
statements |
(a)Β Β |
Its
Original Financial Statements were prepared in accordance with GAAP
consistently applied unless expressly disclosed to the Agent in writing to
the contrary before the date of this
Agreement. |
Β
(b)Β Β |
Its
Original Financial Statements fairly represent its financial condition and
operations (consolidated in the case of the Company) during the relevant
financial year unless expressly disclosed to the Agent in writing to the
contrary before the date of this Agreement. |
Β
38
(c)Β Β |
There
has been no material adverse change in its business or financial condition
(or the business or consolidated financial condition of the Group, in the
case of the Company) since the date of its Original Financial
Statements. |
Β
19.12Β Β |
Pari
passu ranking |
Its
payment obligations under the Finance Documents rank at least pari passu with
the claims of all its other unsecured and unsubordinated creditors, except for
obligations mandatorily preferred by law applying to companies
generally.
Β
19.13Β Β |
No
proceedings pending or threatened |
No
litigation, arbitration or administrative proceedings of or before any court,
arbitral body or agency which, if adversely determined, might reasonably be
expected to have a Material Adverse Effect have (to the best of its knowledge
and belief) been started or threatened against it or any of its
Subsidiaries.
Β
19.14Β Β |
Environmental
compliance |
Each
member of the Group has performed and observed in all material respects all
Environmental Law, Environmental Permits and all other material covenants,
conditions, restrictions or agreements directly or indirectly concerned with any
contamination, pollution or waste or the release or discharge of any toxic or
hazardous substance in connection with any real property which is or was at any
time owned, leased or occupied by any member of the Group or on which any member
of the Group has conducted any activity where failure to do so might reasonably
be expected to have a Material Adverse Effect.
Β
19.15Β Β |
Environmental
Claims |
No
Environmental Claim has been commenced or (to the best of its knowledge and
belief) is threatened against any member of the Group where that claim would be
reasonably likely, if determined against that member of the Group to have a
Material Adverse Effect.
Β
19.16Β Β |
Repetition |
The
Repeating Representations are deemed to be made by each Obligor (by reference to
the facts and circumstances then existing) on the date of each Utilisation
Request and the first day of each Interest Period.
Β
20.Β Β |
INFORMATION
UNDERTAKINGS |
The
undertakings in this Clause 20 remain
in force from the date of this Agreement for so long as any amount is
outstanding under the Finance Documents or any Commitment is in
force.
Β
39
20.1Β Β |
Financial
statements |
The
Company shall supply to the Agent in sufficient copies for all the
Lenders:
Β
(a)Β Β |
as
soon as the same become available, but in any event within 180 days after
the end of each of its financial years: |
Β
(i)Β Β |
its
audited consolidated financial statements for that financial year;
and |
Β
(ii)Β Β |
the
audited financial statements of each Regulated Borrower for that financial
year; and |
Β
(b)Β Β |
as
soon as the same become available, but in any event within 90 days after
the end of each half of each of its financial years the unaudited
consolidated financial statements of the Group for that financial half
year. |
Β
20.2Β Β |
Compliance
Certificate |
(a)Β Β |
The
Company shall supply to the Agent, with each set of financial statements
delivered pursuant to paragraph (a)(i) or (b) of Clause 20.1
(Financial
statements),
a Compliance Certificate setting out (in reasonable detail) computations
as to compliance with Clause 21
(Financial
covenants)
as at the date as at which those financial statements were drawn
up. |
Β
(b)Β Β |
Each
Compliance Certificate shall be signed by two directors of the Company
(or, failing that, by one director of the Company and the finance director
or treasurer of the Company). |
Β
20.3Β Β |
Requirements
as to financial statements |
(a)Β Β |
Each
set of financial statements delivered by the Company pursuant to Clause
20.1
(Financial
statements)
shall include a balance sheet, profit and loss account and cashflow
statement and shall be certified by a director of the relevant company as
fairly representing its financial condition as at the date as at which
those financial statements were drawn up. |
Β
(b)Β Β |
(i)Β Β |
The
Company shall procure that each set of financial statements of an Obligor
delivered pursuant to Clause 20.1
(Financial
statements)
is prepared using GAAP, and accounting practices and financial reference
periods consistent with those applied in the preparation of the Original
Financial Statements for that Obligor (save for the change in practices
relating to the capitalisation of interest to be introduced in respect of
the financial statements for the year ended 31 December 2004) unless, in
relation to any set of financial statements, it notifies the Agent that
there has been a change in GAAP, or the accounting practices or reference
periods and its auditors (or, if appropriate, the auditors of the Obligor)
deliver to the Agent: |
Β
(A)Β Β |
a
description of any change necessary for those financial statements to
reflect the GAAP, accounting practices and reference periods upon which
that Obligor's Original Financial Statements were prepared;
and |
Β
40
(B)Β Β |
sufficient
information, in form and substance as may be reasonably required by the
Agent, to enable the Lenders to determine whether Clause 21
(Financial
covenants)
has been complied with and make an accurate comparison between the
financial position indicated in those financial statements and that
Obligor's Original Financial Statements. |
Β
(ii)Β Β |
If
the Company notifies the Agent of a change in accordance with paragraph
(i) above then the Company and Agent shall enter into negotiations in good
faith with a view to agreeing: |
Β
(A)Β Β |
whether
or not the change might result in any material alteration in the
commercial effect of any of the terms of this Agreement;
and |
Β
(B)Β Β |
if
so, any amendments to this Agreement which may be necessary to ensure that
the change does not result in any material alteration in the commercial
effect of those terms |
Β
and if
any amendments are agreed they shall take effect and be binding on each of the
Parties in accordance with their terms.
Β
Any
reference in this Agreement to those financial statements shall be construed as
a reference to those financial statements as adjusted to reflect the basis upon
which the Original Financial Statements were prepared.
Β
20.4Β Β |
Information:
miscellaneous |
Each
Borrower shall supply to the Agent (in sufficient copies for all the Lenders, if
the Agent so requests):
Β
(a)Β Β |
promptly
upon becoming aware of them, the details of any litigation, arbitration or
administrative proceedings which are current, threatened or pending
against any member of the Group, and which might, if adversely determined,
have a Material Adverse Effect (other than distribution price control
reviews to which all other electricity distribution network operators in
Great Britain are subject); |
Β
(b)Β Β |
promptly
written notice of each Obligor's Xxxxx'x Rating and S&P Rating and any
changes thereto; and |
Β
(c)Β Β |
promptly,
such further information regarding the financial condition, business and
operations of any member of the Group as any Finance Party (through the
Agent) may reasonably request. |
Β
20.5Β Β |
Notification
of default |
(a)Β Β |
Each
Obligor shall notify the Agent of any Default (and the steps, if any,
being taken to remedy it) promptly upon becoming aware of its occurrence
(unless that Obligor is aware that a notification has already been
provided by another Obligor). |
Β
(b)Β Β |
Promptly
upon a request by the Agent, an Obligor shall supply to the Agent a
certificate signed by two of its directors or senior officers on its
behalf certifying that no Default is continuing (or if a Default is
continuing, specifying the Default and the |
Β
41
steps, if
any, being taken to remedy it) save that a Regulated Borrower shall only be
required to certify that no Default is continuing in respect of
itself.
Β
20.6Β Β |
Use
of websites |
(a)Β Β |
An
Obligor may satisfy its obligation under this Agreement to deliver any
information in relation to those Lenders ( the "Website Lenders") who
accept this method of communication by posting this information onto an
electronic website designated by the Company and the Agent (the
"Designated Website") if: |
Β
(i)Β Β |
the
Agent expressly agrees (after consultation with each of the Lenders) that
it will accept communication of the information by this
method; |
Β
(ii)Β Β |
both
the Obligor and the Agent are aware of the address of and any relevant
password specifications for the Designated Website;
and |
Β
(iii)Β Β |
the
information is in a format previously agreed between the Obligor and the
Agent. |
Β
If any
Lender (a "Paper Form Lender") does not agree to the delivery of information
electronically then the Agent shall notify the Obligor accordingly and the
Obligor shall supply the information to the Agent (in sufficient copies for each
Paper Form Lender) in paper form. In any event the Obligor shall supply the
Agent with at least one copy in paper form of any information required to be
provided by it.
Β
(b)Β Β |
The
Agent shall supply each Website Lender with the address of and any
relevant password specifications for the Designated Website following
designation of that website by the Obligor and the
Agent. |
Β
(c)Β Β |
The
Obligor shall promptly upon becoming aware of its occurrence notify the
Agent if: |
Β
(i)Β Β |
the
Designated Website cannot be accessed due to technical
failure; |
Β
(ii)Β Β |
the
password specifications for the Designated Website
change; |
Β
(iii)Β Β |
any
new information which is required to be provided under this Agreement is
posted onto the Designated Website; |
Β
(iv)Β Β |
any
existing information which has been provided under this Agreement and
posted onto the Designated Website is amended;
or |
Β
(v)Β Β |
the
Obligor becomes aware that the Designated Website or any information
posted onto the Designated Website is or has been infected by any
electronic virus or similar software. |
Β
If the
Obligor notifies the Agent under paragraph (c)(i) or paragraph (c)(v) above, all
information to be provided by the Obligor under this Agreement after the date of
that notice shall be supplied in paper form unless and until the Agent and each
Website Lender is satisfied that the circumstances giving rise to the
notification are no longer continuing.
Β
42
Any
Website Lender may request, through the Agent, one paper copy of any information
required to be provided under this Agreement which is posted onto the Designated
Website. The Obligor shall comply with any such request within ten Business
Days.
Β
20.7Β Β |
"Know
your customer" checks |
(a)Β Β |
If: |
Β
(i)Β Β |
the
introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation made after the date of this
Agreement; |
Β
(ii)Β Β |
any
change in the status of an Obligor or the composition of the shareholders
of an Obligor after the date of this Agreement; or
|
Β
(iii)Β Β |
a
proposed assignment or transfer by a Lender of any of its rights and
obligations under this Agreement to a party that is not a Lender prior to
such assignment or transfer, |
Β
obliges
the Agent or any Lender (or, in the case of paragraph (iii) above, any
prospective new Lender) to comply with "know your customer" or similar
identification procedures in circumstances where the necessary information is
not already available to it, each Obligor shall promptly upon the request of the
Agent or any Lender supply, or procure the supply of, such documentation and
other evidence as is reasonably requested by the Agent (for itself, or on behalf
of any Lender) or any Lender (for itself or, in the case of the event described
in paragraph (iii) above, or on behalf of any prospective new Lender) in order
for the Agent, such Lender or, in the case of the event described in paragraph
(iii) above, any prospective new Lender to carry out and be satisfied it has
complied with all necessary "know your customer" or other similar checks under
all applicable laws and regulations pursuant to the transactions contemplated in
the Finance Documents.
Β
(b)Β Β |
Each
Lender shall promptly upon the request of the Agent supply, or procure the
supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself) in order for the Agent to carry out
and be satisfied it has complied with all necessary "know your customer"
or other similar checks under all applicable laws and regulations pursuant
to the transactions contemplated in the Finance Documents.Β |
Β
21.Β Β |
FINANCIAL
COVENANTS |
Β
21.1Β Β |
Financial
definitions |
In this
Clause 21:
Β
"Aggregate
RAV" means
the aggregate of NEDL RAV and YED plc RAV as at each Calculation Date as set out
in Schedule 7 (RAV
Table).
Β
43
"Borrowings" means,
at any time, the outstanding principal, capital or nominal amount and any fixed
or minimum premium payable on prepayment or redemption of any indebtedness for
or in respect of:
Β
(i)Β Β |
moneys
borrowed and debit balances with financial
institutions; |
Β
(ii)Β Β |
any
amount raised by acceptance under any acceptance credit
facility; |
Β
(iii)Β Β |
any
amount raised pursuant to any note purchase facility or the issue of
bonds, notes, debentures, loan stock or any similar
instrument; |
Β
(iv)Β Β |
the
amount of any liability in respect of any lease or hire purchase contract
which would, in accordance with GAAP, be treated as a finance or capital
lease; |
Β
(v)Β Β |
receivables
sold or discounted (other than any receivables to the extent they are sold
on a non-recourse basis); |
Β
(vi)Β Β |
any
counter-indemnity obligation in respect of a guarantee, indemnity, bond,
standby or documentary letter of credit or any other instrument issued by
a bank or financial institution (excluding any given in respect of trade
credit arising in the ordinary course of
business); |
Β
(vii)Β Β |
any
amount raised by the issue of redeemable shares which are redeemable
before the Termination Date; |
Β
(viii)Β Β |
any
amount raised under any other transaction (including any forward sale or
purchase agreement) having the commercial effect of a borrowing;
and |
Β
(ix)Β Β |
(without
double counting) the amount of any liability in respect of any guarantee
or indemnity for any of the items referred to in paragraphs (i) to (viii)
above. |
Β
"Calculation
Date" means
each of 30 June and 31 December in any year save that the first Calculation Date
shall be 31 December 2005.
Β
"Consolidated
EBIT" means
the consolidated profit shown in the consolidated financial statements of the
Group on the line entitled "profits on ordinary activities before
interest":
Β
(i)Β Β |
before
taking into account
any items treated as exceptional items; |
Β
(ii)Β Β |
after
deducting
the amount of any profit of any member of the Group which is attributable
to minority interests; |
Β
(iii)Β Β |
after
deducting the
amount of any profit of any investment or entity (which is not itself a
member of the Group) in which any member of the Group has an ownership
interest to the extent that the amount of such profit included in the
financial statements of the Group exceeds the amount (net of applicable
withholding tax) received in cash by members of the Group through
distributions by such investment or entity;
|
Β
44
(iv)Β Β |
before
taking into account any
realised and unrealised exchange gains and losses including those arising
on translation of currency debt; |
Β
(v)Β Β |
before
taking into account
any gain or loss arising from an upward or downward revaluation of any
asset at any time before the date of the Company's Original Financial
Statements, |
Β
in each
case, to the extent added, deducted or taken into account, as the case may be,
for the purposes of determining profits of the Group from ordinary activities
before taxation (and without double counting).
Β
"Consolidated
Net Finance Charges" means,
for any Relevant Period, the aggregate amount of interest paid on Consolidated
Senior Total Net Debt included in the consolidated cash flow statement for the
Group in respect of that Relevant Period.
Β
"Consolidated
SeniorΒ Total
Net Debt" means,
at any time, the aggregate amount of all obligations of the Group for or in
respect of Borrowings (other than between members of the Group) which rank at
least pari passu with the Loans advanced hereunder but:
Β
(i)Β Β |
deducting
the aggregate amount of all obligations of any member of the Group in
respect of Project Finance Borrowings; Β |
Β
(ii)Β Β |
deducting
the aggregate amount of all obligations of any member of the Group in
respect of Borrowings to the extent that the repayment or redemption of
such Borrowings is provided for by the purchase by a member of the Group
of a guaranteed investment contract; and |
Β
(iii)Β Β |
deducting
the
aggregate amount of freely available cash and cash equivalents held by any
member of the Group at such time, |
Β
and so
that no amount shall be excluded more than once.
Β
"Interest
Cover" means,
in respect of any Relevant Period, the ratio of Consolidated EBIT for that
Relevant Period to Consolidated Net Finance Charges for that Relevant
Period.
Β
"NEDLΒ RAV" means
the regulated asset value of NEDL as at each Calculation Date as set out in
Schedule 7 (RAV
Table).
Β
"NEDLΒ SeniorΒ Total
Net Debt" means,
at any time, the aggregate amount of all obligations of NEDL for or in respect
of Borrowings which rank at least pari passu with the Loans advanced hereunder
but:
Β
(i)Β Β |
deducting
the aggregate amount of all obligations of NEDL in respect of Project
Finance Borrowings; Β |
Β
(ii)Β Β |
deducting
the aggregate amount of all obligations of NEDL in respect of Borrowings
to the extent that the repayment or redemption of such Borrowings is
provided for by the purchase by a member of the Group of a guaranteed
investment contract; and |
Β
45
(iii)Β Β |
deducting
the
aggregate amount of freely available cash and cash equivalents held by
NEDL at such time, |
Β
and so
that no amount shall be excluded more than once.
Β
"Project
Finance Borrowings" means
any indebtedness to finance or refinance the ownership, acquisition,
development, design, engineering, procurement, construction, servicing,
management and/or operation of any project or asset:
Β
(i)Β Β |
which
is incurred by an Excluded Subsidiary; or |
Β
(ii)Β Β |
in
respect of which the person or persons to whom any such indebtedness is or
may be owed by the relevant borrower (whether or not a member of the
Group) has or have no recourse whatsover to any member of the Group (other
than an Excluded Subsidiary) for the repayment thereof other
than: |
Β
(a)Β Β |
recourse
to such member of the Group for amounts limited to the cash flow or net
cash flow (other than historic cash flow or historic net cash flow) from,
or ownership interests or other investments in, such project or asset;
and/or |
Β
(b)Β Β |
recourse
to such member of the Group for the purpose only of enabling amounts to be
claimed in respect of such indebtedness in an enforcement of any Security
given by such member of the Group over such project or asset or the
income, cash flow or other proceeds deriving therefrom (or given by any
shareholder or the like or other investor in the borrower or in the owner
of such project or asset over its shares or the like in the capital of or
other investment in the borrower or in the owner of such project or asset)
to secure such indebtedness provided that: |
Β
(1)Β Β |
the
extent of such recourse to such member of the Group is limited solely to
the amount of any recoveries made on any such enforcement;
and |
Β
(2)Β Β |
such
person or persons is/are not entitled, by virtue of any right or claim
arising out of or in connection with such indebtedness, to commence
proceedings for the winding up or dissolution of an Obligor or to appoint
or procure the appointment of any receiver, trustee or similar person or
officer in respect of an Obligor or any of its assets (save for the assets
the subject of such Security); and/or |
Β
(c)Β Β |
recourse
to such borrower generally, or directly or indirectly to a member of the
Group, under any form of assurance, undertaking or support, which recourse
is principally limited to a claim for damages (other than liquidated
damages and damages required to be calculated in a specified way) for
breach of any 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 to procure compliance by another with any
financial ratios or other tests of financial condition) by the person
against which such recourse is available. |
Β
46
For the
avoidance of doubt, recourse as permitted by (a), (b) or (c) above shall not be
had to the cash flow of a Regulated Borrower other than to the extent of the
amount of cash flow derived solely from an investment or investments in the
relevant project or asset.
Β
For the
purpose of this definition of "Project Finance Borrowings", "Excluded
Subsidiary" means
any Subsidiary of the Company (other than a Regulated Borrower):
Β
(a)Β Β |
in
respect of which neither the Company nor any Subsidiary of the Company
(other than another Excluded Subsidiary) has undertaken any legal
obligation to give any guarantee of any Borrowings (other than in respect
of intra-Group Borrowings or pursuant to any statutory obligation) and the
Subsidiaries of which are all Excluded Subsidiaries;
and |
Β
(b)Β Β |
which
has been designated as such by the Company by written notice to the Agent
(and the Company has not subsequently delivered written notice to the
Agent that such Subsidiary is no longer an Excluded Subsidiary).
|
Β
"Relevant
Period" means
each period of twelve months ending on a Calculation Date.
Β
"YED
plc RAV" means
the regulated asset value of YED plc as at each Calculation Date as set out in
Schedule 7 (RAV
Table).
Β
"YED
plcΒ SeniorΒ Total
Net Debt" means,
at any time, the aggregate amount of all obligations of YED plc for or in
respect of Borrowings which rank at least pari passu with the Loans advanced
hereunder but:
Β
(i)Β Β |
deducting
the aggregate amount of all obligations of YED plc in respect of Project
Finance Borrowings;Β |
Β
(ii)Β Β |
deducting
the aggregate amount of all obligations of YED plc in respect of
Borrowings to the extent that the repayment or redemption of such
Borrowings is provided for by the purchase by a member of the Group of a
guaranteed investment contract; and |
Β
(iii)Β Β |
deducting
the
aggregate amount of freely available cash and cash equivalents held by YED
plc at such time, |
Β
and so
that no amount shall be excluded more than once.
Β
21.2Β Β |
Financial
conditionΒ |
The
Company shall ensure that:
Β
(a)Β Β |
Interest
Cover for each Relevant Period ending on or prior to 31 December 2006
shall be not less than 2.00:1; |
Β
(b)Β Β |
Interest
Cover for each Relevant Period ending after 31 December 2006 shall not be
less than 2.50:1; |
Β
47
(c)Β Β |
YED
plc Senior Total Net Debt on any Calculation Date shall not exceed 65 per
cent. of YED plc RAV on such Calculation
Date; |
Β
(d)Β Β |
NEDL
Senior Total Net Debt on any Calculation Date shall not exceed 65 per
cent. of NEDL RAV on such Calculation Date;
and |
Β
(e)Β Β |
Consolidated
Senior Total Net Debt on any Calculation Date shall not exceed 80 per
cent. of Aggregate RAV on such Calculation
Date. |
Β
21.3Β Β |
Financial
testingΒ |
The
financial covenants set out in Clause 21.2
(Financial
condition) shall
be tested by reference to each of the financial statements and/or each
Compliance Certificate delivered pursuant to Clause 20.2
(Compliance
Certificate).
Β
22.Β Β |
GENERAL
UNDERTAKINGS |
The
undertakings in this Clause 22 remain
in force from the date of this Agreement for so long as any amount is
outstanding under the Finance Documents or any Commitment is in
force.
Β
22.1Β Β |
Authorisations |
Each
Obligor shall promptly:
Β
(a)Β Β |
obtain,
comply with and do all that is necessary to maintain in full force and
effect; and |
Β
(b)Β Β |
supply
certified copies to the Agent of, |
Β
any
Authorisation required under any law or regulation of its jurisdiction of
incorporation to enable it to perform its obligations under the Finance
Documents and to ensure the legality, validity, enforceability or admissibility
in evidence in its jurisdiction of incorporation of any Finance
Document.
Β
22.2Β Β |
Compliance
with laws |
Each
Obligor shall comply in all respects with all laws to which it may be subject,
if failure so to comply would materially impair its ability to perform its
obligations under the Finance Documents.
Β
22.3Β Β |
Negative
pledge |
(a)Β Β |
No
Obligor shall create or permit to subsist any Security over any of its
assets. |
Β
(b)Β Β |
No
Obligor shall: |
Β
(i)Β Β |
sell,
transfer or otherwise dispose of any of its assets on terms whereby they
are or may be leased to or re-acquired by an
Obligor; |
Β
(ii)Β Β |
sell,
transfer or otherwise dispose of any of its receivables on recourse
terms; |
Β
48
(iii)Β Β |
enter
into any arrangement under which money or the benefit of a bank or other
account may be applied, set-off or made subject to a combination of
accounts; or |
Β
(iv)Β Β |
enter
into any other preferential arrangement having a similar
effect, |
Β
in
circumstances where the arrangement or transaction is entered into primarily as
a method of raising Financial Indebtedness or of financing the acquisition of an
asset.
Β
(c)Β Β |
Paragraphs
(a) and (b) above do not apply to: |
Β
(i)Β Β |
any
netting or set-off arrangement entered into by any Obligor in the ordinary
course of its banking arrangements for the purpose of netting debit and
credit balances; |
Β
(ii)Β Β |
any
lien arising by operation of law and in the ordinary course of
trading; |
Β
(iii)Β Β |
any
Security over or affecting (or transaction ("Quasi-Security")
described in paragraph (b) above affecting) any asset acquired by an
Obligor after the date of this Agreement
if: |
Β
(A)Β Β |
the
Security or Quasi-Security was not created in contemplation of the
acquisition of that asset by the Obligor; |
Β
(B)Β Β |
the
principal amount secured has not been increased in contemplation of, or
since the acquisition of that asset by the Obligor;
and |
Β
(C)Β Β |
the
Security or Quasi-Security is removed or discharged within three months of
the date of acquisition of such asset; |
Β
(iv)Β Β |
any
Security securing Project Finance Borrowings;
|
Β
(v)Β Β |
any
Security over the shares of any member of the Group which is not an
Obligor provided such Security was required by and forms part of a Project
Finance Borrowing arrangement; |
Β
(vi)Β Β |
any
Security entered into pursuant to any Finance Document;
or |
Β
(vii)Β Β |
any
Security or Quasi-Security securing indebtedness the principal amount of
which (when aggregated with the principal amount of any other indebtedness
which has the benefit of Security or Quasi-Security given by any member of
the Group other than any permitted under paragraphs (i) to (vii) above)
does not exceed Β£50,000,000 (or its equivalent in another currency or
currencies). |
Β
22.4Β Β |
Disposals |
No
Obligor shall enter into a single transaction or a series of transactions
(whether related or not) and whether voluntary or involuntary to sell, lease,
transfer or otherwise dispose of all or substantially all of its
assets.
Β
49
22.5Β Β |
Merger |
No
Obligor shall enter into any amalgamation, demerger, merger or corporate
reconstruction.
Β
22.6Β Β |
Change
of business |
Each
Obligor shall procure that no substantial change is made to the general nature
of its business or the business of the Group taken as a whole from that carried
on at the date of this Agreement.
Β
22.7Β Β |
Insurance |
Each
Obligor shall maintain insurances on and in relation to its business and assets
with reputable underwriters or insurance companies against those risks and to
the extent as is usual for companies carrying on the same or substantially
similar business.
Β
22.8Β Β |
Compliance
with DNO Licences and duties under the Electricity
Act |
Each
Regulated Borrower shall not (and the Company shall ensure that each Regulated
Borrower shall not) breach any of its DNO Licence conditions nor any of its
obligations under the Electricity Act, the Competition Act and/or the Enterprise
Act where any such breach could reasonably be expected to result in the
revocation of its DNO Licence or would materially impair its ability to perform
its obligations under the Finance Documents.
Β
23.Β Β |
EVENTS
OF DEFAULT |
Β
Each of
the events or circumstances set out in Clause 23 is an
Event of Default.
Β
23.1Β Β |
Non-payment |
An
Obligor does not pay on the due date any amount payable pursuant to a Finance
Document at the place at and in the currency in which it is expressed to be
payable unless:
Β
(a)Β Β |
its
failure to pay is caused by administrative or technical error;
and |
Β
(b)Β Β |
payment
is made within 3 Business Days of its due
date. |
Β
23.2Β Β |
Financial
covenants |
Any
requirement of Clause 21
(Financial
covenants) is not
satisfied.
Β
23.3Β Β |
Other
obligations |
(a)Β Β |
An
Obligor does not comply with any provision of the Finance Documents (other
than those referred to in Clause 23.1
(Non-payment)
and Clause 23.2
(Financial
covenants)).
|
Β
(b)Β Β |
No
Event of Default under paragraph (a) above will occur if the failure to
comply is capable of remedy and is remedied within 20 Business Days of the
Agent giving notice to the Company or the Company becoming aware of the
failure to comply. |
Β
23.4Β Β |
Misrepresentation |
Any
representation or statement made or deemed to be made by an Obligor in the
Finance Documents or any other document delivered by or on behalf of any Obligor
under or in connection with any Finance Document is or proves to have been
incorrect or misleading in any material respect when made or deemed to be
made.
Β
50
23.5Β Β |
Cross
default |
(a)Β Β |
Any
Financial Indebtedness of any Obligor is not paid when due nor within any
originally applicable grace period. |
Β
(b)Β Β |
Any
Financial Indebtedness of any member of any Obligor is declared to be or
otherwise becomes due and payable prior to its specified maturity as a
result of an event of default (however
described). |
Β
(c)Β Β |
Any
commitment for any Financial Indebtedness of any member of the Group is
cancelled or suspended by a creditor of any member of the Group as a
result of an event of default (however
described). |
Β
(d)Β Β |
Any
creditor of any member of the Group becomes entitled to declare any
Financial Indebtedness of any member of the Group due and payable prior to
its specified maturity as a result of an event of default (however
described). |
Β
(e)Β Β |
No
Event of Default will occur under this Clause 23.5 if
the aggregate amount of Financial Indebtedness or commitment for Financial
Indebtedness falling within paragraphs (a) to (d) above is less than
Β£25,000,000 (or its equivalent in any other currency or currencies) or
(save where the same has resulted in recourse to a member of the Group
pursuant to paragraph (c) of the definition of "Project
Finance Borrowings")
the Financial Indebtedness is Project Finance
Borrowing. |
Β
23.6Β Β |
Insolvency |
(a)Β Β |
An
Obligor is unable or admits inability to pay its debts as they fall due,
suspends making payments on any of its debts or, by reason of actual or
anticipated financial difficulties, commences negotiations with one or
more of its creditors with a view to rescheduling any of its
indebtedness. |
Β
(b)Β Β |
The
value of the assets of any Obligor is less than its liabilities (taking
into account contingent and prospective
liabilities). |
Β
(c)Β Β |
A
moratorium is declared in respect of any indebtedness of any
Obligor. |
Β
23.7Β Β |
Insolvency
proceedings |
(a)Β Β |
Any
corporate action, legal proceedings or other procedure or step is taken in
relation to: |
Β
(i)Β Β |
the
suspension of payments, a moratorium of any indebtedness, winding-up,
dissolution, administration or reorganisation (by way of voluntary
arrangement, scheme of arrangement or otherwise) of any
Obligor; |
Β
(ii)Β Β |
a
composition, compromise, assignment or arrangement with any creditor of
any Obligor; |
Β
(iii)Β Β |
the
appointment of a liquidator, receiver, administrative receiver,
administrator, compulsory manager or other similar officer in respect of
any Obligor or any of its assets; or |
Β
51
(iv)Β Β |
enforcement
of any Security over any assets of any
Obligor, |
Β
or any
analogous procedure or step is taken in any jurisdiction.
Β
(b)Β Β |
Paragraph
(a) shall not apply to any winding-up petition which is frivolous or
vexatious and which is discharged, stayed or dismissed within 21 days of
commencement or, if earlier, the date on which it is
advertised. |
Β
23.8Β Β |
Creditors'
process |
Any
expropriation, attachment, sequestration, distress or execution affects any
asset or assets of the Obligors taken together having an aggregate value of
Β£25,000,000 and is not discharged within 21 days.
Β
23.9Β Β |
Governmental
InterventionΒ |
By or
under the authority of any government:
Β
(a)Β Β |
the
management of any member of the Group is wholly or substantially displaced
or the authority of any member of the Group in the conduct of its business
is wholly or substantially curtailed; or |
Β
(b)Β Β |
all
or a majority of the issued shares of any Obligor or the whole or any
material part of its revenues or assets is seized, nationalised,
expropriated or compulsorily acquired. |
Β
23.10Β Β |
Cessation
of business |
Any
Obligor suspends or ceases to carry on (or threatens to suspend or cease to
carry on) all or a material part of its business.
Β
23.11Β Β |
Unlawfulness |
It is or
becomes unlawful for an Obligor to perform any of its obligations under the
Finance Documents.
Β
23.12Β Β |
Repudiation |
An
Obligor repudiates a Finance Document or evidences an intention to repudiate a
Finance Document.
Β
23.13Β Β |
Regulated
Borrower Events |
(a)Β Β |
Notice
is given to terminate or revoke a Regulated Borrower's DNO
Licence. |
Β
(b)Β Β |
A
Regulated Borrower is issued with an order by the Authority as a result of
the Authority's belief that the Regulated Borrower is in breach (or is
likely to be in breach) of a condition in its DNO Licence or its
obligations under the Electricity Act and such breach or the issuance of
such order could reasonably be expected to have a Material Adverse
Effect. |
Β
23.14Β Β |
Acceleration |
On and at
any time after the occurrence of an Event of Default which is continuing the
Agent may, and shall if so directed by the Majority Lenders, by notice to each
Obligor:
Β
(a)Β Β |
cancel
the Total Commitments whereupon they shall immediately be
cancelled; |
Β
52
(b)Β Β |
declare
that all or part of the Loans, together with accrued interest, and all
other amounts accrued or outstanding under the Finance Documents be
immediately due and payable, whereupon they shall become immediately due
and payable; and/or |
Β
(c)Β Β |
declare
that all or part of the Loans be payable on demand, whereupon they shall
immediately become payable on demand by the Agent on the instructions of
the Majority Lenders. |
Β
23.15Β Β |
Protected
Rights of the Regulated Borrowers as holders of a DNO
Licence |
(a)Β Β |
Notwithstanding
any other provision of any of the Finance Documents, if an Event of
Default occurs and such Event of Default has not arisen a result of any
act or omission or state of affairs in existence which, relates to a
Regulated Borrower, such Event of Default shall be deemed not to have
occurred in relation to that Regulated Borrower and, accordingly, the
powers described in paragraphs (a) to (c) of Clause 23.14
(Acceleration)
shall be deemed not to have arisen as against that Regulated Borrower as
regards (a) Loans made to and all sums owed by that Regulated Borrower
under the Finance Documents, and (b) the unutilised portion of the
applicable Tranche made available to that Regulated
Borrower. |
Β
(b)Β Β |
Notwithstanding
any other provision of any of the Finance Documents, in the event that the
powers described in paragraphs (a) to (c) of Clause 23.14
(Acceleration)
become exercisable against a Regulated Borrower as a result of any act or
omission or state of affairs in existence which, in each case, relates to
that Regulated Borrower, the Majority Lenders shall not instruct the Agent
to exercise all or any of such powers against such Regulated Borrower if
they believe that to do so could reasonably be expected to result in (i)
Ofgem taking any action under Part 8 of the Enterprise Xxx 0000, (ii) the
Authority issuing an Enforcement Order in respect of a Regulated Borrower,
(iii) the Authority issuing a financial penalty on a Regulated Borrower
pursuant to Section 27A of the Electricity Act, or the Competition Act
and/or (iv) the Authority issuing a notice for revocation of the DNO
Licence on any of the grounds listed in Schedule 2 of a Regulated
Borrower's DNO Licence. |
Β
(c)Β Β |
The
provisions of paragraph (a) and (b) of this Clause 23.15
shall not operate so as to limit the rights of the Agent to exercise all
or any of the powers described in paragraphs (a) to (c) of Clause
23.14
(Acceleration)
against any Obligor (not being a Regulated Borrower) on or following the
occurrence of any Event of Default (including where such Event of Default
occurs as a result of any act or omission or state of affairs in existence
which in each case relates to a Regulated Borrower) nor shall the
provisions of paragraph (a) and (b) of this Clause 23.15
qualify the obligation of the Agent to exercise such powers, rights and
remedies against any Obligor (not being a Regulated Borrower) if so
instructed by the Majority Lenders. |
Β
53
SECTION
9
CHANGES
TO PARTIES
Β
Β
24.Β Β |
CHANGES
TO THE LENDERS |
Β
24.1Β Β |
Assignments
and transfers by the Lenders |
Subject
to this Clause 24, a
Lender (the "Existing
Lender") may:
Β
(a)Β Β |
assign
any of its rights; or |
Β
(b)Β Β |
transfer
by novation any of its rights and
obligations, |
Β
to
another bank or financial institution or to a trust, fund or other entity which
is regularly engaged in or established for the purpose of making, purchasing or
investing in loans, securities or other financial assets (the "New
Lender").
Β
24.2Β Β |
Conditions
of assignment or transfer |
(a)Β Β |
The
consent of the Company is required for an assignment or transfer by an
Existing Lender, unless the assignment or transfer is to another Lender or
an Affiliate of a Lender or an Event of Default has occurred and is
continuing. |
Β
(b)Β Β |
The
consent of the Company to an assignment or transfer must not be
unreasonably withheld or delayed. The Company will be deemed to have given
its consent five Business Days after the Existing Lender has requested it
unless consent is expressly refused by the Company within that
time. |
Β
(c)Β Β |
The
consent of the Company to an assignment or transfer must not be withheld
solely because the assignment or transfer may result in an increase to the
Mandatory Cost. |
Β
(d)Β Β |
An
assignment will only be effective on: |
Β
(i)Β Β |
receipt
by the Agent of written confirmation from the New Lender (in form and
substance satisfactory to the Agent) that the New Lender will assume the
same obligations to the other Finance Parties as it would have been under
if it was an Original Lender; and |
Β
(ii)Β Β |
performance
by the Agent of all "know your customer" or other checks relating to any
person that it is required to carry out in relation to such assignment to
a New Lender, the completion of which the Agent shall promptly notify to
the Existing Lender and the New Lender. |
Β
(e)Β Β |
A
transfer will only be effective if the procedure set out in Clause
24.5
(Procedure
for transfer)
is complied with. |
Β
(f)Β Β |
If: |
Β
(i)Β Β |
a
Lender assigns or transfers any of its rights or obligations under the
Finance Documents or changes its Facility Office;
and |
Β
54
(ii)Β Β |
as
a result of circumstances existing at the date the assignment, transfer or
change occurs, an Obligor would be obliged to make a payment to the New
Lender or Lender acting through its new Facility Office under Clause
13
(Tax
gross-up and indemnities)
or Clause 14
(Increased
costs), |
Β
then the
New Lender or Lender acting through its new Facility Office is only entitled to
receive payment under those Clauses to the same extent as the Existing Lender or
Lender acting through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.
Β
(g)Β Β |
No
Existing Lender shall assign or transfer any of its rights and/or
obligations under a Tranche to a New Lender without simultaneously
assigning and/or transferring on a pro rata basis its rights and/or
obligations under the other Tranches to such New
Lender. |
Β
24.3Β Β |
Assignment
or transfer fee |
The New
Lender shall, on the date upon which an assignment or transfer takes effect, pay
to the Agent (for its own account) a fee of Β£1,500.
Β
24.4Β Β |
Limitation
of responsibility of Existing
Lenders |
(a)Β Β |
Unless
expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender
for: |
Β
(i)Β Β |
the
legality, validity, effectiveness, adequacy or enforceability of the
Finance Documents or any other documents; |
Β
(ii)Β Β |
the
financial condition of any Obligor; |
Β
(iii)Β Β |
the
performance and observance by any Obligor of its obligations under the
Finance Documents or any other documents;
or |
Β
(iv)Β Β |
the
accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document or any other
document, |
Β
and any
representations or warranties implied by law are excluded.
Β
(b)Β Β |
Each
New Lender confirms to the Existing Lender and the other Finance Parties
that it: |
Β
(i)Β Β |
has
made (and shall continue to make) 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 Lender in connection with any Finance Document;
and |
Β
(ii)Β Β |
will
continue to make its own independent appraisal of the creditworthiness of
each Obligor and its related entities whilst any amount is or may be
outstanding under the Finance Documents or any Commitment is in
force. |
Β
55
(c)Β Β |
Nothing
in any Finance Document obliges an Existing Lender
to: |
Β
(i)Β Β |
accept
a re-transfer from a New Lender of any of the rights and obligations
assigned or transferred under this Clause 24;
or |
Β
(ii)Β Β |
support
any losses directly or indirectly incurred by the New Lender by reason of
the non-performance by any Obligor of its obligations under the Finance
Documents or otherwise. |
Β
24.5Β Β |
Procedure
for transfer |
(a)Β Β |
Subject
to the conditions set out in Clause 24.2
(Conditions
of assignment or transfer) a
transfer is effected in accordance with paragraph (c) below when the Agent
executes an otherwise duly completed Transfer Certificate delivered to it
by the Existing Lender and the New Lender. The Agent shall, subject to
paragraph (b) below, as soon as reasonably practicable after receipt by it
of a duly completed Transfer Certificate appearing on its face to comply
with the terms of this Agreement and delivered in accordance with the
terms of this Agreement, execute that Transfer
Certificate. |
Β
(b)Β Β |
The
Agent shall only be obliged to execute a Transfer Certificate delivered to
it by the Existing Lender and the New Lender once it is satisfied it has
complied with all necessary all "know your customer" or other similar
checks under all applicable laws and regulations in relation to the
transfer to such New Lender. |
Β
(c)Β Β |
On
the Transfer Date: |
Β
(i)Β Β |
to
the extent that in the Transfer Certificate the Existing Lender seeks to
transfer by novation its rights and obligations under the Finance
Documents each of the Obligors and the Existing Lender shall be released
from further obligations towards one another under the Finance Documents
and their respective rights against one another under the Finance
Documents shall be cancelled (being the "Discharged
Rights and Obligations"); |
Β
(ii)Β Β |
each
of the Obligors and the New Lender shall assume obligations towards one
another and/or acquire rights against one another which differ from the
Discharged Rights and Obligations only insofar as that Obligor and the New
Lender have assumed and/or acquired the same in place of that Obligor and
the Existing Lender; |
Β
(iii)Β Β |
the
Agent, the Arranger, the New Lender and other Lenders shall acquire the
same rights and assume the same obligations between themselves as they
would have acquired and assumed had the New Lender been an Original Lender
with the rights and/or obligations acquired or assumed by it as a result
of the transfer and to that extent the Agent, the Arranger and the
Existing Lender shall each be released from further obligations to each
other under the Finance Documents; and |
Β
(iv)Β Β |
the
New Lender shall become a Party as a
"Lender". |
Β
56
24.6Β Β |
Copy
of Transfer Certificate to Company |
The Agent
shall, as soon as reasonably practicable after it has executed a Transfer
Certificate, send to the Company a copy of that Transfer
Certificate.Β
Β
24.7Β Β |
Disclosure
of information |
Any
Lender may disclose to any of its Affiliates and any other person:
Β
(a)Β Β |
to
(or through) whom that Lender assigns or transfers (or may potentially
assign or transfer) all or any of its rights and obligations under this
Agreement; |
Β
(b)Β Β |
with
(or through) whom that Lender enters into (or may potentially enter into)
any sub-participation in relation to, or any other transaction under which
payments are to be made by reference to, this Agreement or any Obligor;
or |
Β
(c)Β Β |
to
whom, and to the extent that, information is required to be disclosed by
any applicable law or regulation, |
Β
any
information about any Obligor, the Group and the Finance Documents as that
Lender shall consider appropriate if, in relation to paragraphs (a) and (b)
above, the person to whom the information is to be given has entered into a
Confidentiality Undertaking.
Β
Β
57
SECTION
10
THE
FINANCE PARTIES
Β
Β
25.Β Β |
ROLE
OF THE AGENT AND THE ARRANGER |
Β
25.1Β Β |
Appointment
of the Agent |
(a)Β Β |
Each
other Finance Party appoints the Agent to act as its agent under and in
connection with the Finance Documents. |
Β
(b)Β Β |
Each
other Finance Party authorises the Agent to exercise the rights, powers,
authorities and discretions specifically given to the Agent under or in
connection with the Finance Documents together with any other incidental
rights, powers, authorities and
discretions. |
Β
25.2Β Β |
Duties
of the Agent |
(a)Β Β |
The
Agent shall promptly forward to a Party the original or a copy of any
document which is delivered to the Agent for that Party by any other
Party. |
Β
(b)Β Β |
Except
where a Finance Document specifically provides otherwise, the Agent is not
obliged to review or check the adequacy, accuracy or completeness of any
document it forwards to another Party. |
Β
(c)Β Β |
If
the Agent receives notice from a Party referring to this Agreement,
describing a Default and stating that the circumstance described is a
Default, it shall promptly notify the other Finance
Parties. |
Β
(d)Β Β |
If
the Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party (other than the
Agent or the Arranger) under this Agreement it shall promptly notify the
other Finance Parties. |
Β
(e)Β Β |
The
Agent's duties under the Finance Documents are solely mechanical and
administrative in nature. |
Β
25.3Β Β |
Role
of the Arranger |
Except as
specifically provided in the Finance Documents, the Arranger has no obligations
of any kind to any other Party under or in connection with any Finance
Document.
Β
25.4Β Β |
No
fiduciary duties |
(a)Β Β |
Nothing
in this Agreement constitutes the Agent or the Arranger as a trustee or
fiduciary of any other person. |
Β
(b)Β Β |
Neither
the Agent nor the Arranger shall be bound to account to any Lender for any
sum or the profit element of any sum received by it for its own
account. |
Β
25.5Β Β |
Business
with the Group |
The Agent
and the Arranger may accept deposits from, lend money to and generally engage in
any kind of banking or other business with any member of the Group.
Β
58
25.6Β Β |
Rights
and discretions of the Agent |
(a)Β Β |
The
Agent may rely on: |
Β
(i)Β Β |
any
representation, notice or document believed by it to be genuine, correct
and appropriately authorised; and |
Β
(ii)Β Β |
any
statement made by a director, authorised signatory or employee of any
person regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to
verify. |
Β
(b)Β Β |
The
Agent may assume (unless it has received notice to the contrary in its
capacity as agent for the Lenders) that: |
Β
(i)Β Β |
no
Default has occurred (unless it has actual knowledge of a Default arising
under Clause 23.1
(Non-payment)); |
Β
(ii)Β Β |
any
right, power, authority or discretion vested in any Party or the Majority
Lenders has not been exercised; and |
Β
(iii)Β Β |
any
notice or request made by the Company (other than a Utilisation Request)
is made on behalf of and with the consent and knowledge of all the
Obligors. |
Β
(c)Β Β |
The
Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other
experts. |
Β
(d)Β Β |
The
Agent may act in relation to the Finance Documents through its personnel
and agents. |
Β
(e)Β Β |
The
Agent may disclose to any other Party any information it reasonably
believes it has received as agent under this
Agreement. |
Β
(f)Β Β |
Notwithstanding
any other provision of any Finance Document to the contrary, neither the
Agent nor the Arranger is obliged to do or omit to do anything if it would
or might in its reasonable opinion constitute a breach of any law or
regulation or a breach of a fiduciary duty or duty of
confidentiality. |
Β
25.7Β Β |
Majority
Lenders' instructions |
(a)Β Β |
Unless
a contrary indication appears in a Finance Document, the Agent shall (i)
exercise any right, power, authority or discretion vested in it as Agent
in accordance with any instructions given to it by the Majority Lenders
(or, if so instructed by the Majority Lenders, refrain from exercising any
right, power, authority or discretion vested in it as Agent) and (ii) not
be liable for any act (or omission) if it acts (or refrains from taking
any action) in accordance with an instruction of the Majority
Lenders. |
Β
(b)Β Β |
Unless
a contrary indication appears in a Finance Document, any instructions
given by the Majority Lenders will be binding on all the Finance
Parties. |
Β
(c)Β Β |
The
Agent may refrain from acting in accordance with the instructions of the
Majority Lenders (or, if appropriate, the Lenders) until it has received
such security as it may require
for any cost, loss or liability (together with any associated VAT) which
it may incur in complying with the
instructions. |
Β
59
Β
(d)Β Β |
In
the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from taking
action) as it considers to be in the best interest of the
Lenders. |
Β
(e)Β Β |
The
Agent is not authorised to act on behalf of a Lender (without first
obtaining that Lender's consent) in any legal or arbitration proceedings
relating to any Finance Document. |
Β
25.8Β Β |
Responsibility
for documentation |
Neither
the Agent nor the Arranger:
Β
(a)Β Β |
is
responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, the Arranger,
an Obligor or any other person given in or in connection with any Finance
Document or the Information Memorandum; or |
Β
(b)Β Β |
is
responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement, arrangement
or document entered into, made or executed in anticipation of or in
connection with any Finance Document. |
Β
25.9Β Β |
Exclusion
of liability |
(a)Β Β |
Without
limiting paragraph (b) below, the Agent will not be liable for any action
taken by it under or in connection with any Finance Document, unless
directly caused by its gross negligence or wilful
misconduct. |
Β
(b)Β Β |
No
Party (other than the Agent) may take any proceedings against any officer,
employee or agent of the Agent in respect of any claim it might have
against the Agent or in respect of any act or omission of any kind by that
officer, employee or agent in relation to any Finance Document and any
officer, employee or agent of the Agent may rely on this Clause subject to
Clause 1.4
(Third
Party Rights)
and the provisions of the Third Parties
Act. |
Β
(c)Β Β |
The
Agent will not be liable for any delay (or any related consequences) in
crediting an account with an amount required under the Finance Documents
to be paid by the Agent if the Agent has taken all necessary steps as soon
as reasonably practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system used by the
Agent for that purpose. |
Β
(d)Β Β |
Nothing
in this Agreement shall oblige the Agent or the Arranger to carry out any
"know your customer" or other checks in relation to any person on behalf
of any Lender and each Lender confirms to the Agent and the Arranger that
it is solely responsible for any such checks it is required to carry out
and that it may not rely on any statement in relation to such checks made
by the Agent or the Arranger. |
Β
60
25.10Β Β |
Lenders'
indemnity to the Agent |
Each
Lender shall (in proportion to its share of the Total Commitments or, if the
Total Commitments are then zero, to its share of the Total Commitments
immediately prior to their reduction to zero) indemnify the Agent, within three
Business Days of demand, against any cost, loss or liability incurred by the
Agent (otherwise than by reason of the Agent's gross negligence or wilful
misconduct) in acting as Agent under the Finance Documents (unless the Agent has
been reimbursed by an Obligor pursuant to a Finance Document).
Β
25.11Β Β |
Resignation
of the Agent |
(a)Β Β |
The
Agent may resign and appoint one of its Affiliates acting through an
office in the United Kingdom as successor by giving notice to the other
Finance Parties and the Company. |
Β
(b)Β Β |
Alternatively
the Agent may resign by giving notice to the other Finance Parties and the
Company, in which case the Majority Lenders (after consultation with the
Company) may appoint a successor Agent. |
Β
(c)Β Β |
If
the Majority Lenders have not appointed a successor Agent in accordance
with paragraph (b) above within 30 days after notice of resignation was
given, the Agent (after consultation with the Company) may appoint a
successor Agent (acting through an office in the United
Kingdom). |
Β
(d)Β Β |
The
retiring Agent shall, at its own cost, make available to the successor
Agent such documents and records and provide such assistance as the
successor Agent may reasonably request for the purposes of performing its
functions as Agent under the Finance
Documents. |
Β
(e)Β Β |
The
Agent's resignation notice shall only take effect upon the appointment of
a successor. |
Β
(f)Β Β |
Upon
the appointment of a successor, the retiring Agent shall be discharged
from any further obligation in respect of the Finance Documents but shall
remain entitled to the benefit of this Clause 25.
Its successor and each of the other Parties shall have the same rights and
obligations amongst themselves as they would have had if such successor
had been an original Party. |
Β
(g)Β Β |
After
consultation with the Company, the Majority Lenders may, by notice to the
Agent, require it to resign in accordance with paragraph (b) above. In
this event, the Agent shall resign in accordance with paragraph (b)
above. |
Β
25.12Β Β |
Confidentiality |
(a)Β Β |
In
acting as agent for the Finance Parties, the Agent shall be regarded as
acting through its agency division which shall be treated as a separate
entity from any other of its divisions or
departments. |
Β
(b)Β Β |
If
information is received by another division or department of the Agent, it
may be treated as confidential to that division or department and the
Agent shall not be deemed to have notice of
it. |
Β
61
25.13Β Β |
Relationship
with the Lenders |
(a)Β Β |
The
Agent may treat each Lender as a Lender, entitled to payments under this
Agreement and acting through its Facility Office unless it has received
not less than five Business Days prior notice from that Lender to the
contrary in accordance with the terms of this
Agreement. |
Β
(b)Β Β |
Each
Lender shall supply the Agent with any information required by the Agent
in order to calculate the Mandatory Cost in accordance with Schedule 4
(Mandatory
Cost formulae). |
Β
25.14Β Β |
Credit
appraisal by the Lenders |
Without
affecting the responsibility of any Obligor for information supplied by it or on
its behalf in connection with any Finance Document, each Lender confirms to the
Agent and the Arranger that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of all
risks arising under or in connection with any Finance Document including but not
limited to:
Β
(a)Β Β |
the
financial condition, status and nature of each member of the
Group; |
Β
(b)Β Β |
the
legality, validity, effectiveness, adequacy or enforceability of any
Finance Document and any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection with any
Finance Document; |
Β
(c)Β Β |
whether
that Lender has recourse, and the nature and extent of that recourse,
against any Party or any of its respective assets under or in connection
with any Finance Document, the transactions contemplated by the Finance
Documents or any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with any
Finance Document; and |
Β
(d)Β Β |
the
adequacy, accuracy and/or completeness of any information provided by the
Agent, any Party or by any other person under or in connection with any
Finance Document, the transactions contemplated by the Finance Documents
or any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Finance
Document. |
Β
25.15Β Β |
Reference
Banks |
If a
Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it
is an Affiliate) ceases to be a Lender, the Agent shall (in consultation with
the Company) appoint another Lender or an Affiliate of a Lender to replace that
Reference Bank.
Β
25.16Β Β |
Deduction
from amounts payable by the Agent |
If any
Party owes an amount to the Agent under the Finance Documents the Agent may,
after giving notice to that Party, deduct an amount not exceeding that amount
from any payment to that Party which the Agent would otherwise be obliged to
make under the Finance Documents and apply the amount deducted in or towards
satisfaction of the amount owed. For the purposes of the Finance Documents that
Party shall be regarded as having received any amount so deducted.
Β
62
26.Β Β |
CONDUCT
OF BUSINESS BY THE FINANCE PARTIES |
Β
No
provision of this Agreement will:
Β
(a)Β Β |
interfere
with the right of any Finance Party to arrange its affairs (tax or
otherwise) in whatever manner it thinks
fit; |
Β
(b)Β Β |
oblige
any Finance Party to investigate or claim any credit, relief, remission or
repayment available to it or the extent, order and manner of any claim;
or |
Β
(c)Β Β |
oblige
any Finance Party to disclose any information relating to its affairs (tax
or otherwise) or any computations in respect of
Tax. |
Β
Β
27.Β Β |
SHARING
AMONG THE FINANCE
PARTIES |
Β
27.1Β Β |
Payments
to Finance
Parties |
If a
Finance Party (a "Recovering
Finance Party")
receives or recovers any amount from an Obligor other than in accordance with
Clause 28
(Payment
mechanics) and
applies that amount to a payment due under the Finance Documents
then:
Β
(a)Β Β |
the
Recovering Finance Party shall, within three Business Days, notify details
of the receipt or recovery, to the Agent; |
Β
(b)Β Β |
the
Agent shall determine whether the receipt or recovery is in excess of the
amount the Recovering Finance Party would have been paid had the receipt
or recovery been received or made by the Agent and distributed in
accordance with Clause 28
(Payment
mechanics),
without taking account of any Tax which would be imposed on the Agent in
relation to the receipt, recovery or distribution;
and |
Β
(c)Β Β |
the
Recovering Finance Party shall, within three Business Days of demand by
the Agent, pay to the Agent an amount (the "Sharing
Payment")
equal to such receipt or recovery less any amount which the Agent
determines may be retained by the Recovering Finance Party as its share of
any payment to be made, in accordance with Clause 28.5
(Partial
payments). |
Β
27.2Β Β |
Redistribution
of payments |
The Agent
shall treat the Sharing Payment as if it had been paid by the relevant Obligor
and distribute it between the Finance Parties (other than the Recovering Finance
Party) in accordance with Clause 28.5
(Partial
payments).
Β
27.3Β Β |
Recovering
Finance Party's rights |
(a)Β Β |
On
a distribution by the Agent under Clause 27.2
(Redistribution
of payments),
the Recovering Finance Party will be subrogated to the rights of the
Finance Parties which have shared in the redistribution.
|
Β
(b)Β Β |
If
and to the extent that the Recovering Finance Party is not able to rely on
its rights under paragraph (a) above, the relevant Obligor shall be liable
to the Recovering Finance Party for a debt equal to the Sharing Payment
which is immediately due and payable. |
Β
63
27.4Β Β |
Reversal
of redistribution |
If any
part of the Sharing Payment received or recovered by a Recovering Finance Party
becomes repayable and is repaid by that Recovering Finance Party,
then:
Β
(a)Β Β |
each
Finance Party which has received a share of the relevant Sharing Payment
pursuant to Clause 27.2
(Redistribution
of payments)
shall, upon request of the Agent, pay to the Agent for account of that
Recovering Finance Party an amount equal to the appropriate part of its
share of the Sharing Payment (together with an amount as is necessary to
reimburse that Recovering Finance Party for its proportion of any interest
on the Sharing Payment which that Recovering Finance Party is required to
pay); and |
Β
(b)Β Β |
that
Recovering Finance Party's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be liable
to the reimbursing Finance Party for the amount so
reimbursed. |
Β
27.5Β Β |
Exceptions |
(a)Β Β |
This
Clause 27
shall not apply to the extent that the Recovering Finance Party would not,
after making any payment pursuant to this Clause, have a valid and
enforceable claim against the relevant
Obligor. |
Β
(b)Β Β |
A
Recovering Finance Party is not obliged to share with any other Finance
Party any amount which the Recovering Finance Party has received or
recovered as a result of taking legal or arbitration proceedings,
if: |
Β
(i)Β Β |
it
notified that other Finance Party of the legal or arbitration proceedings;
and |
Β
(ii)Β Β |
that
other Finance Party had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal or
arbitration proceedings. |
Β
Β
64
SECTION
11
ADMINISTRATION
Β
Β
28.Β Β |
PAYMENT
MECHANICS |
Β
28.1Β Β |
Payments
to the Agent |
(a)Β Β |
On
each date on which an Obligor or a Lender is required to make a payment
under a Finance Document, that Obligor or Lender shall make the same
available to the Agent (unless a contrary indication appears in a Finance
Document) for value on the due date at the time and in such funds
specified by the Agent as being customary at the time for settlement of
transactions in the relevant currency in the place of
payment. |
Β
(b)Β Β |
Payment
shall be made to such account in the principal financial centre of the
country of that currency (or, in relation to euro, in a principal
financial centre in a Participating Member State or London) with such bank
as the Agent specifies. |
Β
28.2Β Β |
Distributions
by the Agent |
Each
payment received by the Agent under the Finance Documents for another Party
shall, subject to Clause 28.3
(Distributions
to an Obligor), Clause
28.4
(Clawback) and
ClauseΒ 25.16
(Deduction
from amounts payable by the Agent) be made
available by the Agent as soon as practicable after receipt to the Party
entitled to receive payment in accordance with this Agreement (in the case of a
Lender, for the account of its Facility Office), to such account as that Party
may notify to the Agent by not less than five Business Days' notice with a bank
in the principal financial centre of the country of that currency (or, in
relation to euro, in the principal financial centre of a Participating Member
State or London).
Β
28.3Β Β |
Distributions
to an Obligor |
The Agent
may (with the consent of the Obligor or in accordance with Clause 29
(Set-off)) apply
any amount received by it for that Obligor in or towards payment (on the date
and in the currency and funds of receipt) of any amount due from that Obligor
under the Finance Documents or in or towards purchase of any amount of any
currency to be so applied.
Β
28.4Β Β |
Clawback |
(a)Β Β |
Where
a sum is to be paid to the Agent under the Finance Documents for another
Party, the Agent is not obliged to pay that sum to that other Party (or to
enter into or perform any related exchange contract) until it has been
able to establish to its satisfaction that it has actually received that
sum. |
Β
(b)Β Β |
If
the Agent pays an amount to another Party and it proves to be the case
that the Agent had not actually received that amount, then the Party to
whom that amount (or the proceeds of any related exchange contract) was
paid by the Agent shall on demand refund the same to the Agent together
with interest on that amount from the date of payment to the date of
receipt by the Agent, calculated by the Agent to reflect its cost of
funds. |
Β
65
28.5Β Β |
Partial
payments |
(a)Β Β |
If
the Agent receives a payment that is insufficient to discharge all the
amounts then due and payable by an Obligor under the Finance Documents,
the Agent shall apply that payment towards the obligations of that Obligor
under the Finance Documents in the following
order: |
Β
(i)Β Β |
first,
in or towards payment pro rata of any unpaid fees, costs and expenses of
the Agent and the Arranger under the Finance
Documents; |
Β
(ii)Β Β |
secondly,
in or towards payment pro rata of any accrued interest, fee or commission
due but unpaid under this Agreement; |
Β
(iii)Β Β |
thirdly,
in or towards payment pro rata of any principal due but unpaid under this
Agreement; and |
Β
(iv)Β Β |
fourthly,
in or towards payment pro rata of any other sum due but unpaid under the
Finance Documents. |
Β
(b)Β Β |
The
Agent shall, if so directed by the Majority Lenders, vary the order set
out in paragraphs (a)(ii) to (iv) above. |
Β
(c)Β Β |
Paragraphs
(a) and (b) above will override any appropriation made by an
Obligor. |
Β
28.6Β Β |
No
set-off by Obligors |
All
payments to be made by an Obligor under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for) set-off
or counterclaim.
Β
28.7Β Β |
Business
Days |
(a)Β Β |
Any
payment which is due to be made on a day that is not a Business Day shall
be made on the next Business Day in the same calendar month (if there is
one) or the preceding Business Day (if there is
not). |
Β
(b)Β Β |
During
any extension of the due date for payment of any principal or Unpaid Sum
under this Agreement interest is payable on the principal or Unpaid Sum at
the rate payable on the original due date. |
Β
28.8Β Β |
Currency
of account |
(a)Β Β |
Subject
to paragraphs (b) to (e) below, the Base Currency is the currency of
account and payment for any sum due from an Obligor under any Finance
Document. |
Β
(b)Β Β |
A
repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall
be made in the currency in which that Loan or Unpaid Sum is denominated on
its due date. |
Β
(c)Β Β |
Each
payment of interest shall be made in the currency in which the sum in
respect of which the interest is payable was denominated when that
interest accrued. |
Β
(d)Β Β |
Each
payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are
incurred. |
Β
66
(e)Β Β |
Any
amount expressed to be payable in a currency other than the Base Currency
shall be paid in that other currency. |
Β
28.9Β Β |
Change
of currency |
(a)Β Β |
Unless
otherwise prohibited by law, 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: |
Β
(i)Β Β |
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 Agent (after consultation with the Company);
and |
Β
(ii)Β Β |
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 Agent (acting reasonably). |
Β
(b)Β Β |
If
a change in any currency of a country occurs, this Agreement will, to the
extent the Agent (acting reasonably and after consultation with the
Company) specifies to be necessary, be amended to comply with any
generally accepted conventions and market practice in the Relevant
Interbank Market and otherwise to reflect the change in
currency. |
Β
29.Β Β |
SET-OFF |
Β
A Finance
Party may set off any matured obligation due from an Obligor under the Finance
Documents (to the extent beneficially owned by that Finance Party) against any
matured obligation owed by that Finance Party to that Obligor, regardless of the
place of payment, booking branch or currency of either obligation. If the
obligations are in different currencies, the Finance Party may convert either
obligation at a market rate of exchange in its usual course of business for the
purpose of the set-off.
Β
30.Β Β |
NOTICES |
Β
30.1Β Β |
Communications
in writing |
Any
communication to be made under or in connection with the Finance Documents shall
be made in writing and, unless otherwise stated, may be made by fax or
letter.
Β
30.2Β Β |
Addresses |
The
address and fax number (and the department or officer, if any, for whose
attention the communication is to be made) of each Party for any communication
or document to be made or delivered under or in connection with the Finance
Documents is:
Β
(a)Β Β |
in
the case of the Company, that identified with its name
below; |
Β
(b)Β Β |
in
the case of each Lender or any other Original Obligor, that notified in
writing to the Agent on or prior to the date on which it becomes a Party;
and |
Β
67
(c)Β Β |
in
the case of the Agent, that identified with its name below,
|
Β
or any
substitute address or fax number or department or officer as the Party may
notify to the Agent (or the Agent may notify to the other Parties, if a change
is made by the Agent) by not less than five Business Days' notice.
Β
30.3Β Β |
Delivery |
(a)Β Β |
Any
communication or document made or delivered by one person to another under
or in connection with the Finance Documents will only be
effective: |
Β
(i)Β Β |
if
by way of fax, when received in legible form;
or |
Β
(ii)Β Β |
if
by way of letter, when it has been left at the relevant address or five
Business Days after being deposited in the post postage prepaid in an
envelope addressed to it at that address, |
Β
and, if a
particular department or officer is specified as part of its address details
provided under Clause 30.2
(Addresses), if
addressed to that department or officer.
Β
(b)Β Β |
Any
communication or document to be made or delivered to the Agent will be
effective only when actually received by the Agent and then only if it is
expressly marked for the attention of the department or officer identified
with the Agent's signature below (or any substitute department or officer
as the Agent shall specify for this
purpose). |
Β
(c)Β Β |
All
notices from or to an Obligor shall be sent through the
Agent. |
Β
(d)Β Β |
Any
communication or document made or delivered to the Company in accordance
with this Clause will be deemed to have been made or delivered to each of
the Obligors. |
Β
30.4Β Β |
Notification
of address and fax number |
Promptly
upon receipt of notification of an address and fax number or change of address
or fax number pursuant to Clause 30.2
(Addresses) or
changing its own address or fax number, the Agent shall notify the other
Parties.
Β
30.5Β Β |
Electronic
communication |
(a)Β Β |
Any
communication to be made between the Agent and a Lender under or in
connection with the Finance Documents may be made by electronic mail or
other electronic means, if the Agent and the relevant
Lender: |
Β
(i)Β Β |
agree
that, unless and until notified to the contrary, this is to be an accepted
form of communication; |
Β
(ii)Β Β |
notify
each other in writing of their electronic mail address and/or any other
information required to enable the sending and receipt of information by
that means; and |
Β
(iii)Β Β |
notify
each other of any change to their address or any other such information
supplied by them. |
Β
68
(b)Β Β |
Any
electronic communication made between the Agent and a Lender will be
effective only when actually received in readable form and in the case of
any electronic communication made by a Lender to the Agent only if it is
addressed in such a manner as the Agent shall specify for this
purpose. |
Β
30.6Β Β |
English
language |
(a)Β Β |
Any
notice given under or in connection with any Finance Document must be in
English. |
Β
(b)Β Β |
All
other documents provided under or in connection with any Finance Document
must be: |
Β
(i)Β Β |
in
English; or |
Β
(ii)Β Β |
if
not in English, and if so required by the Agent, accompanied by a
certified English translation and, in this case, the English translation
will prevail unless the document is a constitutional, statutory or other
official document. |
Β
31.Β Β |
CALCULATIONS
AND CERTIFICATES |
Β
31.1Β Β |
Accounts |
In any
litigation or arbitration proceedings arising out of or in connection with a
Finance Document, the entries made in the accounts maintained by a Finance Party
are prima
facie evidence
of the matters to which they relate.
Β
31.2Β Β |
Certificates
and Determinations |
Any
certification or determination by a Finance Party of a rate or amount under any
Finance Document is, in the absence of manifest error, conclusive evidence of
the matters to which it relates.
Β
31.3Β Β |
Day
count convention |
Any
interest, commission or fee accruing under a Finance Document will accrue from
day to day and is calculated on the basis of the actual number of days elapsed
and a year of 365 days in respect of amounts payable in Sterling or, in respect
of other amounts 360 days or, in any case where the practice in the Relevant
Interbank Market differs, in accordance with that market practice.
Β
32.Β Β |
PARTIAL
INVALIDITY |
Β
If, at
any time, any provision of the Finance Documents is or becomes illegal, invalid
or unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.
Β
33.Β Β |
REMEDIES
AND WAIVERS |
Β
No
failure to exercise, nor any delay in exercising, on the part of any Finance
Party, any right or remedy under the Finance Documents shall operate as a
waiver, nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise or the exercise of any other
right or remedy. The rights and remedies provided in this Agreement are
cumulative and not exclusive of any rights or remedies provided by
law.
Β
69
Β
Β
34.Β Β |
AMENDMENTS
AND WAIVERS |
Β
34.1Β Β |
Required
consents |
(a)Β Β |
Subject
to Clause 34.2
(Exceptions)
any term of the Finance Documents may be amended or waived only with the
consent of the Majority Lenders and the Obligors and any such amendment or
waiver will be binding on all Parties. |
Β
(b)Β Β |
The
Agent may effect, on behalf of any Finance Party, any amendment or waiver
permitted by this Clause. |
Β
34.2Β Β |
Exceptions |
(a)Β Β |
An
amendment or waiver that has the effect of changing or which relates
to: |
Β
(i)Β Β |
the
definition of "Majority Lenders" in Clause 1.1
(Definitions); |
Β
(ii)Β Β |
an
extension to the date of payment of any amount under the Finance
Documents; |
Β
(iii)Β Β |
a
reduction in the Margin or a reduction in the amount of any payment of
principal, interest, fees or commission
payable; |
Β
(iv)Β Β |
an
increase in or an extension of any Commitment other than in accordance
with Clause 4.5
(Reallocation) |
Β
(v)Β Β |
a
change to the Borrowers or the Guarantor; |
Β
(vi)Β Β |
any
provision which expressly requires the consent of all the Lenders;
|
Β
(vii)Β Β |
Clause
2.2
(Finance
Parties' rights and obligations),
Clause 24
(Changes
to the Lenders)
or this Clause 34,
|
Β
shall not
be made without the prior consent of all the Lenders.
Β
(b)Β Β |
An
amendment or waiver which relates to the rights or obligations of the
Agent or the Arranger may not be effected without the consent of the Agent
or the Arranger. |
Β
35.Β Β |
COUNTERPARTS |
Β
Each
Finance Document may be executed in any number of counterparts, and this has the
same effect as if the signatures on the counterparts were on a single copy of
the Finance Document.
Β
70
SECTION
12
GOVERNING
LAW AND ENFORCEMENT
Β
Β
36.Β Β |
GOVERNING
LAW |
Β
This
Agreement is governed by English law.
Β
37.Β Β |
ENFORCEMENT |
Β
37.1Β Β |
Jurisdiction |
(a)Β Β |
The
courts of England have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Agreement (including a dispute
regarding the existence, validity or termination of this Agreement) (a
"Dispute"). |
Β
(b)Β Β |
The
Parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no Party will argue
to the contrary. |
Β
(c)Β Β |
This
Clause 37.1 is
for the benefit of the Finance Parties only. As a result, no Finance Party
shall be prevented from taking proceedings relating to a Dispute in any
other courts with jurisdiction. To the extent allowed by law, the Finance
Parties may take concurrent proceedings in any number of
jurisdictions. |
Β
This
Agreement has been entered into on the date stated at the beginning of this
Agreement.
Β
71
SCHEDULE
1
The
Parties
Β
Part
I
The
Obligors
Β
Name
of Borrowers
Β |
Registration
number (or equivalent, if any)
Β |
CE
Electric UK Funding Company
Β
Yorkshire
Electricity Distribution plc
Β
Northern
Electric Distribution Limited
Β |
03476201
Β
04112320
Β
02906593
Β |
Β | Β |
Β | Β |
Β | Β |
Β | Β |
Name
of Guarantor
Β |
Registration
number (or equivalent, if any)
Β |
CE
Electric UK Funding Company
Β |
03476201
Β |
Β | Β |
Β | Β |
Β | Β |
Β | Β |
Β
72
Part
IIΒ
The
Original Lenders
Β
Name
of Original Lender
Β |
Tranche
A Commitment
Β |
Tranche
B Commitment
Β |
Tranche
C Commitment
Β |
Lloyds
TSB Bank plc
Β |
Β |
Β£25,000,000
Β |
Β£25,000,000
Β |
The
Royal Bank of Scotland plc
Β |
Β |
Β£25,000,000
Β |
Β£25,000,000
Β |
Β | Β | Β | Β |
Β |
Β£0
Β |
Β£50,000,000
Β |
Β£50,000,000
Β |
Β
Β
73
SCHEDULE
2
Conditions
Precedent
Β
Conditions
precedent to initial Utilisation
Β
2.Β Β |
Obligors |
Β
(a)Β Β |
A
copy of the constitutional documents of each
Obligor. |
Β
(b)Β Β |
A
copy of a resolution of the board of directors of each
Obligor: |
Β
(i)Β Β |
approving
the terms of, and the transactions contemplated by, the Finance Documents
to which it is a party and resolving that it execute the Finance Documents
to which it is a party; |
Β
(ii)Β Β |
authorising
a specified person or persons to execute the Finance Documents to which it
is a party on its behalf; and |
Β
(iii)Β Β |
authorising
a specified person or persons, on its behalf, to sign and/or despatch all
documents and notices (including, if relevant, any Utilisation Request) to
be signed and/or despatched by it under or in connection with the Finance
Documents to which it is a party. |
Β
(c)Β Β |
A
specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above. |
Β
(d)Β Β |
A
certificate of each Obligor (signed by a director) confirming that
borrowing the Commitments made available to that Obligor hereunder and in
the case of the Guarantor, guaranteeing the Total Commitments, would not
cause any borrowing, guaranteeing or similar limit binding on any such
Obligor to be exceeded. |
Β
(e)Β Β |
A
certificate of an authorised signatory of the relevant Obligor certifying
that each copy document relating to it specified in this Schedule 2 is
correct, complete and in full force and effect as at a date no earlier
than the date of this Agreement. |
Β
3.Β Β |
Legal
opinion |
Β
(a)Β Β |
A
legal opinion of Xxxxxxxx Chance Limited Liability Partnership, legal
advisers to the Arranger and the Agent in England, substantially in the
form distributed to the Original Lenders prior to signing this
Agreement. |
Β
4.Β Β |
Other
documents and evidence |
Β
(a)Β Β |
A
copy of any other Authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable (if it has notified
the Company accordingly) in connection with the entry into and performance
of the transactions contemplated by any Finance Document or for the
validity and enforceability of any Finance
Document. |
Β
74
Β
(b)Β Β |
The
Original Financial Statements of each Original
Obligor. |
Β
(c)Β Β |
Evidence
that the fees, costs and expenses then due from the Company pursuant to
Clause 12
(Fees)
and Clause 17
(Costs
and expenses)
have been paid or will be paid by the first Utilisation
Date. |
Β
(d)Β Β |
A
copy of each DNO Licence. |
Β
75
SCHEDULE
3
Requests
Β
Utilisation
Request
Β
From:Β Β [Borrower]
Β
To:Β Β Β [Agent]
Β
Dated:
Β
Dear
Sirs
Β
CE
Electric UK Funding Company - Β£100,000,000 Multicurrency Revolving
Facility
Agreement
dated
[Β Β Β Β Β Β Β Β Β Β ] (the
"Agreement")
Β
1.Β Β |
We
refer to the Agreement. This is a Utilisation Request. Terms defined in
the Agreement have the same meaning in this Utilisation Request unless
given a different meaning in this Utilisation
Request. |
Β
2.Β Β |
We
wish to borrow a [Tranche A/Tranche B/Tranche C] Loan on the following
terms: |
Β
Proposed
Utilisation Date:
Β |
[Β Β Β Β ]
(or, if that is not a Business Day, the next Business Day)
Β |
Currency
of Loan:
Β |
[Β Β Β Β ]
Β |
Amount:
Β |
[Β Β Β Β ]
or, if less, the Available Tranche A Facility, Available Tranche B
Facility or Available Tranche C Facility (as applicable)
Β |
Interest
Period:
Β |
[Β Β Β Β ]
Β |
3.Β Β |
We
confirm that each condition specified in Clause 4.2
(Further
conditions precedent)
is satisfied on the date of this Utilisation
Request. |
Β
4.Β Β |
The
proceeds of this Loan should be credited to [account]. |
Β
5.Β Β |
This
Utilisation Request is irrevocable. |
Β
Yours
faithfully
Β
β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦
authorised
signatory for
[name
of relevant Borrower]
76
SCHEDULE
4
Mandatory
Cost Formulae
Β
1.Β Β |
The
Mandatory Cost is an addition to the interest rate to compensate Lenders
for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank. |
Β
2.Β Β |
On
the first day of each Interest Period (or as soon as possible thereafter)
the Agent shall calculate, as a percentage rate, a rate (the "Additional
Cost Rate")
for each Lender, in accordance with the paragraphs set out below. The
Mandatory Cost will be calculated by the Agent as a weighted average of
the Lenders' Additional Cost Rates (weighted in proportion to the
percentage participation of each Lender in the relevant Loan) and will be
expressed as a percentage rate per annum. |
Β
3.Β Β |
The
Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender
to the Agent. This percentage will be certified by that Lender in its
notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender's participation in all Loans
made from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made from
that Facility Office. |
Β
4.Β Β |
The
Additional Cost Rate for any Lender lending from a Facility Office in the
United Kingdom will be calculated by the Agent as
follows: |
Β
(a)Β Β |
in
relation to a sterling Loan: |
Β
AB + C(B-D) + E x 0.01 per cent. per
annum
Β Β Β Β 100 - (A
+ C)
Β
(b)Β Β |
in
relation to a Loan in any currency other than
sterling: |
Β
E x 0.01Β per cent. per annum.
Β Β Β Β Β Β Β Β Β Β Β 300
Β
Where:
Β
AΒ Β | is the percentage of Eligible Liabilities (assuming these to be in excess of any stated minimum) which that Lender is from time to time required to maintain as an interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements. |
Β
BΒ Β | is the percentage rate of interest (excluding the Margin and the Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate of interest specified in paragraph (a) of Clause 9.3 (Default interest)) payable for the relevant Interest Period on the Loan. |
Β
CΒ Β | is the percentage (if any) of Eligible Liabilities which that Lender is required from time to time to maintain as interest bearing Special Deposits with the Bank of England. |
Β
77
DΒ Β | is the percentage rate per annum payable by the Bank of England to the Agent on interest bearing Special Deposits. |
Β
EΒ Β Β | is designed to compensate Lenders for amounts payable under the Fees Rules and is calculated by the Agent as being the average of the most recent rates of charge supplied by the Reference Banks to the Agent pursuant to paragraph 7 below and expressed in pounds per Β£1,000,000. |
Β
5.Β Β |
For
the purposes of this Schedule: |
Β
(a)Β Β |
"Eligible
Liabilities"
and "Special
Deposits"
have the meanings given to them from time to time under or pursuant to the
Bank of England Act 1998 or (as may be appropriate) by the Bank of
England; |
Β
(b)Β Β |
"Fees
Rules"
means the rules on periodic fees contained in the FSA Supervision Manual
or such other law or regulation as may be in force from time to time in
respect of the payment of fees for the acceptance of
deposits; |
Β
(c)Β Β |
"Fee
Tariffs"
means the fee tariffs specified in the Fees Rules under the activity group
A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required
pursuant to the Fees Rules but taking into account any applicable discount
rate); and |
Β
(d)Β Β |
"Tariff
Base"
has the meaning given to it in, and will be calculated in accordance with,
the Fees Rules. |
Β
6.Β Β |
In
application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent. will be included in the formula
as 5 and not as 0.05). A negative result obtained by subtracting D from B
shall be taken as zero. The resulting figures shall be rounded to four
decimal places. |
Β
7.Β Β |
If
requested by the Agent, each Reference Bank shall, as soon as practicable
after publication by the Financial Services Authority, supply to the
Agent, the rate of charge payable by that Reference Bank to the Financial
Services Authority pursuant to the Fees Rules in respect of the relevant
financial year of the Financial Services Authority (calculated for this
purpose by that Reference Bank as being the average of the Fee Tariffs
applicable to that Reference Bank for that financial year) and expressed
in pounds per Β£1,000,000 of the Tariff Base of that Reference
Bank. |
Β
8.Β Β |
Each
Lender shall supply any information required by the Agent for the purpose
of calculating its Additional Cost Rate. In particular, but without
limitation, each Lender shall supply the following information on or prior
to the date on which it becomes a Lender: |
Β
(a)Β Β |
the
jurisdiction of its Facility Office; and |
Β
(b)Β Β |
any
other information that the Agent may reasonably require for such
purpose. |
Β
Each
Lender shall promptly notify the Agent of any change to the information provided
by it pursuant to this paragraph.
Β
78
9.Β Β |
The
percentages of each Lender for the purpose of A and C above and the rates
of charge of each Reference Bank for the purpose of E above shall be
determined by the Agent based upon the information supplied to it pursuant
to paragraphs 7 and 8 above and on the assumption that, unless a Lender
notifies the Agent to the contrary, each Lender's obligations in relation
to cash ratio deposits and Special Deposits are the same as those of a
typical bank from its jurisdiction of incorporation with a Facility Office
in the same jurisdiction as its Facility
Office. |
Β
10.Β Β |
The
Agent shall have no liability to any person if such determination results
in an Additional Cost Rate which over or under compensates any Lender and
shall be entitled to assume that the information provided by any Lender or
Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and correct
in all respects. |
Β
11.Β Β |
The
Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for
each Lender based on the information provided by each Lender and each
Reference Bank pursuant to paragraphs 3, 7 and 8
above. |
Β
12.Β Β |
Any
determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and
binding on all Parties. |
Β
13.Β Β |
The
Agent may from time to time, after consultation with the Company and the
Lenders, determine and notify to all Parties any amendments which are
required to be made to this Schedule in order to comply with any change in
law, regulation or any requirements from time to time imposed by the Bank
of England, the Financial Services Authority or the European Central Bank
(or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all
Parties. |
Β
79
SCHEDULE
5
Form
of Transfer Certificate
To:Β Β [Β Β Β Β ]
as Agent
Β
From:Β Β [The
Existing Lender] (the
"Existing
Lender") and
[The
New Lender] (the
"New
Lender")
Β
Dated:
Β
CE
Electric UK Funding Company - Β£100,000,000 Multicurrency Revolving
Facility
Agreement
dated
[Β Β Β Β Β Β Β Β Β Β Β ] (the
"Agreement")
Β
1.Β Β |
We
refer to the Agreement. This is a Transfer Certificate. Terms defined in
the Agreement have the same meaning in this Transfer Certificate unless
given a different meaning in this Transfer
Certificate. |
Β
2.Β Β |
We
refer to Clause 24.5
(Procedure
for transfer): |
Β
(a)Β Β |
The
Existing Lender and the New Lender agree to the Existing Lender
transferring to the New Lender by novation all or part of the Existing
Lender's Commitment, rights and obligations referred to in the Schedule in
accordance with Clause 24.5
(Procedure
for transfer). |
Β
(b)Β Β |
The
proposed Transfer Date is
[Β Β Β Β ]. |
Β
(c)Β Β |
The
Facility Office and address, fax number and attention details for notices
of the New Lender for the purposes of Clause 30.2
(Addresses)
are set out in the Schedule. |
Β
3.Β Β |
The
New Lender expressly acknowledges the limitations on the Existing Lender's
obligations set out in paragraph (c) of Clause 24.4
(Limitation
of responsibility of Existing Lenders). |
Β
[4/5]Β |
This
Transfer Certificate may be executed in any number of counterparts and
this has the same effect as if the signatures on the counterparts were on
a single copy of this Transfer Certificate. |
Β
[5/6] |
This
Transfer Certificate is governed by English
law. |
Β Β
Β
THE
SCHEDULE
Β
Commitment/rights
and obligations to be transferred
Β
[insert
relevant details]
[Facility
Office address, fax number and attention details for notices and account details
for payments,]
Β
Β
Β Β Β Β Β Β [Existing
Lender]
Β |
Β Β Β Β Β Β Β Β [New
Lender]
Β |
80
Β
Β Β Β Β Β Β By:
Β |
Β Β Β Β Β Β Β Β By:
Β |
Β
This
Transfer Certificate is accepted by the Agent and the Transfer Date is confirmed
as
[Β Β Β Β Β Β Β Β Β Β Β ].
Β
[Agent]
Β
By:
Β
81
SCHEDULE
6
Part
IΒ Β
Form
of Preliminary Conversion Notice
Β
From:Β Β CE
Electric UK Funding Company
Β
To:Β Β Β [Agent]
Β
Dated:
Β
Dear
Sirs
Β
CE
Electric UK Funding Company - Β£100,000,000 Multicurrency Revolving
Facility
Agreement
dated
[Β Β Β Β Β Β Β Β Β Β ] (the
"Agreement")
Β
4.Β Β |
We
refer to the Agreement. This is a Preliminary Conversion Notice. Terms
defined in the Agreement have the same meaning in this Preliminary
Conversion Notice unless given a different meaning in this Preliminary
Conversion Notice. |
Β
5.Β Β |
We
wish to: |
Β
(i)Β Β |
cancel
the Tranche A Commitments in an amount equal to
[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
]; |
Β
(ii)Β Β |
increase
the Tranche B Commitments in an amount equal to
[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
];
and |
Β
(iii)Β Β |
increase
the Tranche C Commitments in an amount equal to
[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
],** |
Β
on
[insert
Preliminary Conversion Date].
Β
6.Β Β |
We
confirm that the AMBAC Restrictive Covenant was removed on [insert
date]. |
Β
7.Β Β |
This
Preliminary Conversion Notice is
irrevocable. |
Β
Yours
faithfully
Β
β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦
authorised
signatory for
CE
Electric UK Funding Company
Β
Β
** The
aggregate of the amounts specified in sub-paragraphs (ii) and (III) should equal
the amount specified in sub-paragraph (i).
Β
Β
82
Β
Part
IIΒ
Form
of Secondary Conversion Notice
Β
Β
From:Β Β CE
Electric UK Funding Company
Β
To:Β Β Β [Agent]
Β
Dated:
Β
Dear
Sirs
Β
CE
Electric UK Funding Company - Β£100,000,000 Multicurrency Revolving
Facility
Agreement
dated
[Β Β Β Β Β Β Β Β Β Β ] (the
"Agreement")
Β
1.Β Β |
We
refer to the Agreement. This is a Secondary Conversion Notice. Terms
defined in the Agreement have the same meaning in this Secondary
Conversion Notice unless given a different meaning in this Secondary
Conversion Notice. |
Β
2.Β Β |
We
wish to: |
Β
(i)Β Β |
[increase
Tranche A Commitments]/[decrease Tranche A Commitments] in an amount equal
to
[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
]*; |
Β
(ii)Β Β |
[increase
Tranche B Commitments]/[decrease Tranche B Commitments] in an amount equal
to
[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
];
and |
Β
(iii)Β Β |
[increase
Tranche C Commitments]/[decrease Tranche C Commitments] in an amount equal
to
[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
].** |
Β
on
[insert
Secondary Conversion Date].
Β
3.Β Β |
This
Secondary Conversion Notice is irrevocable. |
Β
Yours
faithfully
Β
β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦
authorised
signatory for
CE
Electric UK Funding Company
Β
Β
* Amount
not to exceed Β£25,000,000
** Note
more thatn Β£25,000,000 may be reallocated
between Tranches A, B and C.
83
SCHEDULE
7
RAV
Table
Β
If, in
the period commencing thirty days prior to a Calculation Date and ending on the
immediately succeeding Calculation Date, the relevant Obligor has delivered a
certificate confirming that the sum of (i) capital expenditure incurred in
connection with regulated activities by YED plc, NEDL or, where Aggregate RAV is
to be determined, by both YED plc and NEDL (as the case may be) since the start
of the Distribution Price Review Period and (ii) the aggregate of the capital
expenditure expected by YED plc and/or NEDL to be incurred in connection with
regulated activities by YED plc, NEDL or, where Aggregate RAV is to be
determined, by both YED plc and NEDL (as the case may be) in the remainder of
the Distribution Price Review Period, exceeds 90% but is not more than 110% of
the aggregate planned capital expenditure assumed by Ofgem, YED plc RAV, NEDL
RAV and Aggregate RAV (as the case may be), as at such Calculation Date, shall
be as set forth in the table below:
Β
Β |
RAV
(in Β£ millions)
Β | ||
Calculation
Date |
NEDL
("NEDL
RAV") |
YED
plc
("YED
plc RAV")
Β |
Aggregate
("Aggregate
RAV")
Β |
31
December 2005
Β |
679.1
Β |
897.3
Β |
1576.4
Β |
30
June 2006
Β |
701.8
Β |
921.6
Β |
1623.4
Β |
31
December 2006
Β |
723.9
Β |
947.7
Β |
1671.6
Β |
30
June 2007
Β |
745.4
Β |
973.1
Β |
1718.5
Β |
31
December 2007
Β |
766.3
Β |
997.8
Β |
1764.1
Β |
30
June 2008
Β |
786.5
Β |
1021.6
Β |
1808.1
Β |
31
December 2008
Β |
806.1
Β |
1044.5
Β |
1850.6
Β |
30
June 2009
Β |
825.0
Β |
1066.4
Β |
1891.4
Β |
31
December 2009
Β |
843.1
Β |
1087.5
Β |
1930.6
Β |
Β
For the
purposes of the foregoing provisions:
Β
the
"relevant
Obligor" means
YED plc where YED plc RAV is to be determined, NEDL where NEDL RAV is to be
determined and the Company where Aggregate RAV is to be determined;
Β
the
"aggregate
planned capital expenditure assumed by Ofgem" means
Β£503,000,000 in the case of YED plc, Β£410,000,000 in the case of NEDL and
Β£913,000,000 in the case of YED plc and NEDL when taken together;
Β
84
the
"Distribution
Price Review Period" means
the period commencing on 1 April 2005 and ending on 31 March 2010.
Β
If, in
the determination of YED plc RAV, NEDL RAV or Aggregate RAV, a relevant Obligor
is not able to deliver the certificate referred to above, then the relevant
Obligor will, prior to the relevant Calculation Date, provide an updated table
certified by two directors of the relevant Obligor as being the relevant
Obligor's good faith estimate of its regulated asset value (or, in the case of
the Company, the aggregate of the regulated asset value of YED plc and NEDL)
updated to show the effects on the above RAV Table of changes to the actual and
planned capital expenditure and determined on the same basis as the above RAV
Table. Upon provision of such revised table the same shall thereafter be deemed
to be substitued for the above RAV Table until any subsequent substitution of a
further updated table in accordance with the foregoing provisions.
Β
85
SCHEDULE
8
Form
of Compliance Certificate
Β
To:Β Β Β [Β Β Β Β ]
as Agent
Β
From:Β Β Β CE
Electric UK Funding Company
Β
Dated:
Β
Dear
Sirs
Β
CE
Electric UK Funding Company - Β£100,000,000 Multicurrency Revolving
Facility
Agreement
dated
[Β Β Β Β Β Β Β Β Β Β ] (the
"Agreement")
Β
1.Β Β |
We
refer to the Agreement. This is a Compliance Certificate. Terms defined in
the Agreement have the same meaning when used in this Compliance
Certificate unless given a different meaning in this Compliance
Certificate. |
Β
2.Β Β |
We
confirm that: |
Β
(a)Β Β |
as
of [insert
most recent Calculation Date]
the provisions of Clause 21.2
(Financial
condition)
[have/have not] been complied with; |
Β
(b)Β Β |
the
computations necessary to demonstrate the [compliance/non compliance]
referred to in paragraph (a) above are as
follows: |
Β
Interest
Cover
Β
(i)Β Β |
Consolidated
EBIT |
Β
[Β Β Β ]
Β
(ii)Β Β |
Consolidated
Net Finance Charges |
Β
[Β Β Β ]
Β
YED
plc Debt to YED plc RAV
Β
(i)Β Β |
YED
plc Senior Total Net Debt |
Β
[Β Β Β ]
Β
(ii)Β Β |
YED
plc RAV |
Β
[Β Β Β ]
Β
NEDL
Debt to NEDL RAV
Β
(i)Β Β |
NEDL
Senior Total Net Debt |
Β
[Β Β Β ]
Β
86
(ii)Β Β |
NEDL
RAV |
Β
[Β Β Β ]
Β
Β Β Consolidated Debt to
Aggregate RAV
Β
(i)Β Β |
Consolidated
Senior Total Net Debt |
Β
[Β Β Β ]
Β
(ii)Β Β |
Aggregate
RAV |
Β
[Β Β Β ]
Β
3.Β Β |
[We
confirm that no Default is continuing.]Β Β¬ |
Β
Signed: |
β¦............ |
β¦............ |
Β |
Director |
Director |
Β |
of |
of |
Β |
CE
Electric UK Funding Company |
CE
Electric UK Funding Company |
Β | Β | Β |
Β
Β
*Β If
this statement cannot be made, the certificate should identify any Default that
is continuing and the steps, if any, being taken to remedy
it.
87
Β
SCHEDULE
9
LMA
Form of Confidentiality Undertaking
Β
[Letterhead
of Arranger]
Β
To:
Β
Β
Β |
Β
[instert name of Potential Lender] |
Β
Re:Β Β Β Β The
Facilit[y/ies]
Company:
Amount:
Agent: |
Β |
Β
Β
Dear
Sirs
Β
We
understand that you are considering participating in the Facilit[y/ies]. In
consideration of us agreeing to make available to you certain information, by
your signature of a copy of this letter you agree as follows:
Β
1.Β Β |
CONFIDENTIALITY
UNDERTAKINGΒ |
Β
You
undertake:
Β
(a)Β Β |
to
keep the Confidential Information confidential and not to disclose it to
anyone except as provided for by paragraph 2 below and to ensure that the
Confidential Information is protected with security measures and a degree
of care that would apply to your own confidential
information; |
Β
(b)Β Β |
to
keep confidential and not disclose to anyone the fact that the
Confidential Information has been made available or that discussions or
negotiations are taking place or have taken place between us in connection
with the Facilit[y/ies]; |
Β
(c)Β Β |
to
use the Confidential Information only for the Permitted
Purpose; |
Β
(d)Β Β |
to
use all reasonable endeavours to ensure that any person to whom you pass
any Confidential Information (unless disclosed under paragraph 2(b) below)
acknowledges and complies with the provisions of this letter as if that
person were also a party to it; and |
Β
(e)Β Β |
not
to make enquiries of any member of the Group or any of their officers,
directors, employees or professional advisers relating directly or
indirectly to the Facilit[y/ies]. |
Β
88
2.Β Β |
PERMITTED
DISCLOSUREΒ |
Β
We agree
that you may disclose Confidential Information:
Β
(a)Β Β |
to
members of the Participant Group and their officers, directors, employees
and professional advisers to the extent necessary for the Permitted
Purpose and to any auditors of members of the Participant
Group; |
Β
(b)Β Β |
(i)
where requested or required by any court of competent jurisdiction or any
competent judicial, governmental, supervisory or regulatory body, (ii)
where required by the rules of any stock exchange on which the shares or
other securities of any member of the Participant Group are listed or
(iii) where required by the laws or regulations of any country with
jurisdiction over the affairs of any member of the Participant Group;
or |
Β
(c)Β Β |
with
the prior written consent of us and the
Company. |
Β
3.Β Β |
NOTIFICATION
OF REQUIRED OR UNAUTHORISED DISCLOSUREΒ |
Β
You agree
(to the extent permitted by law) to inform us of the full circumstances of any
disclosure under paragraphΒ 2(b) or upon becoming aware that Confidential
Information has been disclosed in breach of this letter.
Β
4.Β Β |
RETURN
OF COPIESΒ |
Β
If we so
request in writing, you shall return all Confidential Information supplied to
you by us and destroy or permanently erase all copies of Confidential
Information made by you and use all reasonable endeavours to ensure that anyone
to whom you have supplied any Confidential Information destroys or permanently
erases such Confidential Information and any copies made by them, in each case
save to the extent that you or the recipients are required to retain any such
Confidential Information by any applicable law, rule or regulation or by any
competent judicial, governmental, supervisory or regulatory body or in
accordance with internal policy, or where the Confidential Information has been
disclosed under paragraphΒ 2(b) above.
Β
5.Β Β |
CONTINUING
OBLIGATIONSΒ |
Β
The
obligations in this letter are continuing and, in particular, shall survive the
termination of any discussions or negotiations between you and us.
Notwithstanding the previous sentence, the obligations in this letter shall
cease (a) if you become a party to or otherwise acquire (by assignment or sub
participation) an interest, direct or indirect in the Facilit[y/ies] or (b)
twelve months after you have returned all Confidential Information supplied to
you by us and destroyed or permanently erased all copies of Confidential
Information made by you (other than any such Confidential Information or copies
which have been disclosed under paragraph 2 above (other than paragraph 2(a)) or
which, pursuant to paragraph 4 above, are not required to be returned or
destroyed).
Β
89
6.Β Β |
NO
REPRESENTATION; CONSEQUENCES OF BREACH, ETCΒ |
Β
You
acknowledge and agree that:
Β
(a)Β Β |
neither
we nor any of our officers, employees or advisers (each a "Relevant
Person")
(i) make any representation or warranty, express or implied, as to, or
assume any responsibility for, the accuracy, reliability or completeness
of any of the Confidential Information or any other information supplied
by us or any member of the Group or the assumptions on which it is based
or (ii) shall be under any obligation to update or correct any inaccuracy
in the Confidential Information or any other information supplied by us or
any member of the Group or be otherwise liable to you or any other person
in respect to the Confidential Information or any such information;
and |
Β
(b)Β Β |
we
or members of the Group may be irreparably harmed by the breach of the
terms of this letter and damages may not be an adequate remedy; each
Relevant Person or member of the Group may be granted an injunction or
specific performance for any threatened or actual breach of the provisions
of this letter by you. |
Β
7.Β Β |
NO
WAIVER; AMENDMENTS, ETCΒ |
Β
This
letter sets out the full extent of your obligations of confidentiality owed to
us in relation to the information the subject of this letter. No failure or
delay in exercising any right, power or privilege under this letter will operate
as a waiver thereof nor will any single or partial exercise of any right, power
or privilege preclude any further exercise thereof or the exercise of any other
right, power or privileges under this letter. The terms of this letter and your
obligations under this letter may only be amended or modified by written
agreement between us.
Β
8.Β Β |
INSIDE
INFORMATIONΒ |
Β
You
acknowledge that some or all of the Confidential Information is or may be
price-sensitive information and that the use of such information may be
regulated or prohibited by applicable legislation relating to insider dealing
and you undertake not to use any Confidential Information for any unlawful
purpose.
Β
9.Β Β |
NATURE
OF UNDERTAKINGSΒ |
Β
The
undertakings given by you under this letter are given to us and (without
implying any fiduciary obligations on our part) are also given for the benefit
of the Company and each other member of the Group.
Β
10.Β Β |
THIRD
PARTY RIGHTS |
Β
(a)Β Β |
Subject
to paragraph 6 and paragraph 9 the terms of this letter may be enforced
and relied upon only by you and us and the operation of the Contracts
(Rights of Third Parties) Xxx 0000 is
excluded. |
Β
90
(b)Β Β |
Notwithstanding
any provisions of this letter, the parties to this letter do not require
the consent of any Relevant Person or any member of the Group to rescind
or vary this letter at any time. |
Β
11.Β Β |
GOVERNING
LAW AND JURISDICTIONΒ |
Β
This
letter (including the agreement constituted by your acknowledgement of its
terms) shall be governed by and construed in accordance with the laws of England
and the parties submit to the non-exclusive jurisdiction of the English
courts.
Β
12.Β Β |
DEFINITIONS |
Β
In this
letter (including the acknowledgement set out below):
Β
"Confidential
Information" means
any information relating to the Company, the Group, the Acquisition Documents
(as defined in the Facilit[y/ies]) and the transactions contemplated thereby and
the Facilit[y/ies] including, without limitation, the information memorandum,
provided to you by us or any of our affiliates or advisers, in whatever form,
and includes information given orally and any document, electronic file or any
other way of representing or recording information which contains or is derived
or copied from such information but excludes information that (a) is or becomes
public knowledge other than as a direct or indirect result of any breach of this
letter or (b) is known by you before the date the information is disclosed to
you by us or any of our affiliates or advisers or is lawfully obtained by you
after that date, other than from a source which is connected with the Group and
which, in either case, as far as you are aware, has not been obtained in
violation of, and is not otherwise subject to, any obligation of
confidentiality;
Β
"Group" means
the Company and each of its holding companies and subsidiaries and each
subsidiary of each of its holding companies (as each such term is defined in the
Companies Act 1985);
Β
"Participant
Group" means
you, each of your holding companies and subsidiaries and each subsidiary of each
of your holding companies (as each such term is defined in the Companies Act
1985); and
Β
"Permitted
Purpose" means
considering and evaluating whether to enter into the
Facilit[y/ies].
Β
Please
acknowledge your agreement to the above by signing and returning the enclosed
copy.
Β
Yours
faithfully
Β
β¦................................
For and
on behalf of
Β
[Arranger]
Β
To:Β Β [Arranger]
Β Β Β Β The Company
and each other member of the Group
Β
91
We
acknowledge and agree to the above:
Β
β¦................................
For and
on behalf of
[Potential
Lender]
Β
92
SCHEDULE
10
Timetables
Β
Β |
Loans
in Australian dollars,
US
dollars or euro
Β |
Loans
in sterling
Β |
Loans
in other currencies
Β |
Request
for approval as an Optional Currency (Clause 4.3
(Conditions
relating to Optional Currencies))
Β |
N/A
Β |
N/A
Β |
U-4
(10.00am)
Β |
Agent
notifies the Company if a currency is approved as an Optional Currency in
accordance with Clause 4.3
(Conditions
relating to Optional Currencies)
Β |
N/A
Β |
N/A
Β |
U-3
(4.00pm)
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Delivery
of a duly completed Utilisation Request (Clause 5.1
(Delivery
of a Utilisation Request)
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U-3
(9.00am)
Β |
U-1
(10.00am)
Β |
U-3
(9.00am)
Β |
Agent
determines (in relation to a Utilisation) the Base Currency Amount of the
Loan, if required under Clause 5.4
(Lenders'
participation)
and notifies the Lenders of the Loan in accordance with Clause
5.4
(Lenders'
participation)
Β |
U-3
(3.00pm)
Β |
U-1
(3.00pm)
Β |
U-2
(2.00pm)
Β |
Agent
receives a notification from a Lender under Clause 6.2
(Unavailability
of a currency)
Β |
N/A
Β |
N/A
Β |
U-2
(9.30am)
Β |
Agent
gives notice in accordance with Clause 6.2
(Unavailability
of a currency)
Β |
N/A
Β |
N/A
Β |
U-2
(10.30am) |
Β
Β
93
Β |
Loans
in Australian dollars,
US
dollars or euro
Β |
Loans
in sterling
Β |
Loans
in other currencies
Β |
LIBOR
or EURIBOR is fixed
Β |
Quotation
Day as of 11.00am London time in respect of LIBOR and as of 11.00am
(Brussels time) in respect of EURIBOR
Β |
Quotation
Day as of 11.00am
Β |
Quotation
Day as of 11.00am
Β |
Β
"U" =
date of utilisation
Β
"U - X" =
X Business Days prior to date of utilisation
Β
Β
94
SIGNATURES
Β
THE
COMPANY | ||
Β | Β | |
CE
ELECTRIC UK FUNDING COMPANY | ||
Β | Β | |
By: |
Β | |
Β | Β | |
Address: |
Lloyds
Court | |
Β |
00
Xxxx Xxxxxx | |
Β |
Xxxxxxxxx
Xxxx Xxxx | |
Β |
XX0
0XX | |
Β | Β | |
Fax: |
0000
000 0000 | |
Β | Β | |
Β | Β | |
THE
BORROWERS |
Β | |
Β | Β | |
CE
ELECTRIC UK FUNDING COMPANY |
Β | |
Β | Β | |
By: |
Β | |
Β | Β | |
YORKSHIRE
ELECTRICITY DISTRIBUTION PLC | ||
Β | Β | |
By: |
Β | |
Β | Β | |
NORTHERN
ELECTRIC DISTRIBUTION LIMITED | ||
Β | Β | |
By: |
Β | |
Β | Β | |
Β | Β | |
THE
GUARANTOR |
Β | |
Β | Β | |
CE
ELECTRIC UK FUNDING COMPANY |
Β | |
Β | Β | |
By: |
Β | |
Β | Β | |
Β | Β | |
THE
ARRANGER |
Β | |
Β | Β | |
LLOYDS
TSB BANK PLC |
Β | |
Β | Β | |
By: |
Β | |
Β | Β | |
Address: |
0xx
Xxxxx | |
Β |
00
Xxxxxxx Xxxxxx | |
Β |
Xxxxxx
XX0X 0XX | |
Β | Β | |
Fax: |
000
0000 0000 |
00
Β
XXX
XXXXX XXXX XX XXXXXXXX PLC |
Β | |
Β | Β | |
By:Β |
XXXXXXX
XXXXXX | |
Β | Β | |
Address: |
000
Xxxxxxxxxxx | |
Β |
Xxxxxx
XX0X 0XX | |
Β | Β | |
Fax: |
000
0000 0000 | |
Β | Β | |
Β | Β | |
THE
AGENT |
Β | |
Β | Β | |
LLOYDS
TSB BANK PLC |
Β | |
Β | Β | |
By: |
XXXXXX
PERL | |
Β | Β | |
Address: |
Xxxx
Xxxxx | |
Β |
Xxxx
Xxxxxx | |
Β |
Xxxxxxx
XX0 0XX | |
Β | Β | |
Fax: |
0000
000 0000 | |
Β | Β | |
Attention: |
Loans
Administration | |
Β | Β | |
Β | Β | |
THE
ORIGINAL LENDERS |
Β | |
Β | Β | |
LLOYDS
TSB BANK PLC |
Β | |
Β | Β | |
By: |
XXXXXX
PERL | |
Β | Β | |
Address: |
0xx
Xxxxx | |
Β |
00/00
Xxxx Xxx | |
Β |
Xxxxx
XX0 0XX | |
Β | Β | |
Fax: |
0000
000 0000 | |
Β | Β | |
Β | Β | |
THE
ROYAL BANK OF SCOTLAND PLC |
Β | |
Β | Β | |
By: |
XXXXX
XXXXXXX | |
Β | Β | |
Address: |
000
Xxxxxxxxxxx | |
Β |
Xxxxxx
XX0X 0XX | |
Β | Β | |
Fax: |
000
0000 0000 |
96
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