EXHIBIT 2(b)(iii)
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THIS AGREEMENT is made on 22nd November, 2001
BETWEEN:
(1) NEW NATIONAL GRID PLC (a company incorporated in England and Wales with
registered number 4031152) ("NEW NG") as a guarantor and as a borrower;
(2) NATIONAL GRID GROUP PLC (a company incorporated in England and Wales
with registered number 2367004) ("EXISTING NGG") as a guarantor and as
a borrower;
(3) NGG FINANCE PLC (a company incorporated in England and Wales with
registered number 4220381) ("NGGF") as a borrower;
(4) ABN AMRO BANK N.V., BANC OF AMERICA SECURITIES LIMITED, THE BANK OF
TOKYO-MITSUBISHI, LTD., BARCLAYS CAPITAL, BAYERISCHE LANDESBANK
GIROZENTRALE, LONDON BRANCH, CITIBANK, N.A., DRESDNER KLEINWORT
XXXXXXXXXXX LIMITED, HSBC INVESTMENT BANK PLC, X. X. XXXXXX PLC and TD
BANK EUROPE LIMITED as joint arrangers (the "ARRANGERS");
(5) HSBC INVESTMENT BANK PLC as facility agent (the "FACILITY AGENT");
(6) HSBC BANK (USA) INC as swingline agent (the "SWINGLINE AGENT"); and
(7) THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 (The Banks)
as Banks.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"1999 FACILITY AGREEMENT"
means the syndicated revolving credit and term loan facility agreement
dated 5th March, 1999 between (amongst others) Existing NGG, the NG
Company and HSBC Investment Bank plc as Agent;
"ACQUISITION"
means the acquisition by New NG (or one of its wholly-owned
Subsidiaries) of all the issued shares of common stock in Niagara
Mohawk as contemplated in the Niagara Mohawk Merger Agreement;
"ACQUISITION ADVANCE"
means an Advance in Dollars or Sterling drawn under Facility A on or
before the 3rd Business Day after the Registration Date for the purpose
of the acquisition by New NG (or
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one of its wholly-owned Subsidiaries) of all the issued shares of
common stock in Niagara Mohawk as contemplated in the Niagara Mohawk
Merger Agreement.
"ADDITIONAL BORROWER"
means:
(i) a wholly owned Subsidiary of New NG (other than NG Company)
incorporated in the United Kingdom; or
(ii) any other Subsidiary of New NG approved in writing by all of
the Banks,
which, in each case, becomes a Borrower in accordance with Clause 28.4
(Additional Borrowers);
"ADVANCE"
means a Facility A Advance or a Facility B Advance;
"AFFILIATE"
means a Subsidiary or a Holding Company (as defined in Section 736 of
the Companies Act 1985) of a person and any other Subsidiary of that
Holding Company;
"AFFILIATED BANK"
means a Bank which is an Affiliate of another Bank.
"AGENT"
means the Facility Agent or the Swingline Agent and the term "RELEVANT
AGENT" shall be construed accordingly.
"AGREED PERCENTAGE"
means in relation to a Revolving Facility Bank and a Swingline Advance,
the amount of its Facility B Commitment expressed as a percentage of
the Facility B Total Commitments.
"ANNIVERSARY"
means an anniversary of the Signing Date.
"APPLICABLE MARGIN"
means the percentage rate per annum determined from time to time to be
the Applicable Margin in accordance with Clause 9.6 (Applicable
Margin).
"ASSET DISPOSAL"
means any single disposal of any assets (including but not limited to a
disposal of any Subsidiary or Affiliate, any disposal to facilitate or
as part of a securitisation and any issue by
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a member of the Group of any debt instrument convertible into all or
any part of the equity share capital owned by it in another member of
the Group) by any member of the Group after the Signing Date other than
a disposal of assets permitted under paragraphs (i) to (ix) of Clause
19.9(b) (Disposals).
"AUTHORITY"
means:
(i) until both section 1(1) and section 3(1) of the Utilities Act
are brought into force, the Director General of Electricity
Supply; and
(ii) thereafter, the Gas and Electricity Markets Authority
established by section 1(1) of the Utilities Act.
"BALANCE SHEET"
means, at any time, the latest published audited consolidated balance
sheet of the Group;
"BALANCING AND SETTLEMENT CODE" or "BSC"
means the balancing and settlement code required to be adopted by NG
Company under the terms of its Transmission Licence.
"BANKS"
means the Revolving Facility Banks and the Swingline Banks.
"BONDS"
means:
(i) the mandatorily exchangeable bonds due 2003, exchangeable into
ordinary shares of Energis and issued by NGG;
(ii) the exchangeable bonds due 2008, exchangeable into ordinary
shares of NGG and issued by NG Company; and
(iii) other similar debt instruments issued or to be issued by NGG
or any company in the Group and exchangeable into share
capital.
"BORROWER"
means each of:
(i) Existing NGG and NGGF; and
(ii) on or after the Registration Date, New NG and any Additional
Borrower;
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"BORROWER ACCESSION AGREEMENT"
means an agreement substantially in the form set out in Schedule 6
(Borrower Accession Agreement) with such amendments as the Facility
Agent may approve or reasonably require;
"BUSINESS DAY"
means:
(a) a day (other than a Saturday or a Sunday) on which banks are
open for general interbank business in:
(i) London and, in relation to a transaction involving
Dollars, New York; and
(ii) in relation to a transaction involving an Optional
Currency (other than Euros), the principal financial
centre of the country of that Optional Currency; and
(b) in relation to a rate fixing for, or payment in, Euros, a
TARGET Day;
"COMMITMENT"
means, in relation to a Revolving Facility Bank, its Facility A
Commitment, its Facility B Commitment or, as the context requires, the
aggregate of such Commitments;
"COMPANIES ACT SUBSIDIARY"
means a subsidiary within the meaning of Section 736 of the Companies
Xxx 0000, as amended by Section 144 of the Companies Xxx 0000;
"CONTROLLED GROUP"
means all members of a controlled group of corporations and all trades
or businesses (whether or not incorporated) under common control which,
together with any Obligor, are treated as a single employer under
Section 414 of the U.S. Code;
"CUSC"
means the connecting and use of system code required to be adopted by
NG Company under the terms of its Transmission Licence.
"DANGEROUS SUBSTANCE"
means any radioactive emissions and any natural or artificial substance
(whether in solid or liquid form or in the form of a gas or vapour)
which (whether alone or in conjunction with any other substance) gives
rise to a risk of causing harm to man or any other living organism or
causing damage to the Environment or public health or welfare and
includes but is not limited to any controlled, special, hazardous,
toxic, radioactive or dangerous waste;
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"DEFAULT"
means an Event of Default or any event which, with the giving of
notice, expiry of any applicable grace period, determination of
materiality or fulfilment of any other applicable condition (or any
combination of the foregoing) in each case as specified in Clause 20
(Default), would constitute an Event of Default;
"DISPOSAL PROCEEDS"
means in relation to any Asset Disposal, the value of all the
consideration received or receivable by members of the Group in
relation to that Asset Disposal whether at the time of the Asset
Disposal or on a deferred basis and for this purpose:
(a) counting as part of the consideration the aggregate principal
amount of any Financial Indebtedness in the entity disposed of
and which remains in that entity immediately after the Asset
Disposal;
(b) taking the value of any deferred consideration as an amount
determined by the auditors of NGG to represent its net present
value as at the time the Asset Disposal is substantially
completed; and
(c) taking non-cash proceeds at their fair value as at the time
the Asset Disposal is substantially completed;
"DOUBLE TAXATION TREATY"
means any convention between the government of the United Kingdom or
the United States of America, as applicable, and any other government
for the avoidance of double taxation and the prevention of fiscal
evasion with respect to taxes on income and capital gains.
"ELECTRICITY ACT"
means the UK Electricity Xxx 0000 as amended from time to time and all
subordinate legislation made under it;
"EMU"
means Economic and Monetary Union as contemplated by the Treaty
establishing the European Community;
"EMU LEGISLATION"
means legislative measures of the European Union in relation to EMU;
"ENERGIS"
means Energis plc;
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"ENERGY AND NETWORK BUSINESS"
means the business of generation, operation, maintenance, development
and exploitation of a transmission or distribution network, metering,
trading or supply of electricity or other sources of energy, the
undertaking of an energy and telecoms business generally and any
businesses ancillary or incidental to any of those businesses;
"ENERGY LAWS"
means the Electricity Act and all other laws, regulations or
requirements of any relevant authority (in so far as such regulations
or requirements have the force of law) relating to the generation,
operation, maintenance, development and exploitation of a transmission
or distribution network, metering, trading or supply of electricity or
other sources of energy in each jurisdiction in which NGG or any of its
Subsidiaries carries on business at any time;
"ENVIRONMENT"
means the media of air, water and land (wherever occurring) and in
relation to the media of air and water includes, without limitation,
the air and water within buildings and the air and water within other
natural or man-made structures above or below ground and any water
contained in any underground strata;
"ENVIRONMENTAL APPROVALS"
means all authorisations of any kind required under Environmental Laws
to which any member of the Group is subject at any time;
"ENVIRONMENTAL LAW"
means all legislation, regulations or orders (insofar as such
regulations or orders have the force of law) to the extent that they
relate to the protection or impairment of the Environment or the
control of Dangerous Substances to which any member of the Group is
subject at any relevant time;
"ERISA"
means the U.S. Employee Retirement Income Security Act of 1974 and any
rule or regulation issued thereunder from time to time in effect;
"EURIBOR"
means in relation to any Advance in Euros:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the period of that
Advance) the arithmetic mean of the rates (rounded upwards to
four decimal places) as supplied to the Facility Agent at its
request, quoted by the Reference Banks to leading banks in the
European interbank market
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at or about 11.00 a.m. Brussels time on the applicable Rate Fixing Day
for the offering of deposits in Euros for the applicable Interest
Period for a Term-out Advance or the Term of a Facility A Advance
(other than a Term-out Advance) or of a Facility B Advance;
"EURO, EUROS, E"
means the single currency of the Participating Member States and
excludes all Euro Sub-Denominations;
"EURO SUB-DENOMINATION"
means the national currency (other than the Euro) of any Participating
Member State;
"EURO UNIT"
means a unit of the Euro as defined in EMU legislation;
"EVENT OF DEFAULT"
means an event specified as such in Clause 20.1 (Events of Default);
"FACILITIES"
means Facility A and Facility B;
"FACILITY A"
means the facility referred to in Clause 2.1(a) (The Facilities);
"FACILITY A ADVANCE"
means a Revolving Facility Advance or a Term-out Advance made or to be
made by a Revolving Facility Bank under Facility A;
"FACILITY A AVAILABILITY PERIOD"
means the period from the Signing Date to the date which is 364 days
after the Signing Date or, in relation to any Bank, such later date as
that Bank may have agreed under Clause 5.7 (Extension of Facility A
Availability Period);
"FACILITY A COMMITMENT"
means in relation to a Bank:
(a) the amount in Dollars set opposite its name in Part I of
Schedule 1 (The Banks); or
(b) the amount of that Commitment acquired by such Bank pursuant
to Clause 28.2 (New Banks) and/or Clause 28.3 (Procedure for
transfers),
less in each case the amount of that Commitment cancelled, reduced or
transferred by that Bank pursuant to this Agreement;
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"FACILITY A TOTAL COMMITMENTS"
means the aggregate for the time being of the Facility A Commitments,
being US$1,700,000,000 at the date of this Agreement;
"FACILITY AGENT'S SPOT RATE OF EXCHANGE"
means the spot rate of exchange as determined by the Facility Agent for
the purchase of the relevant Optional Currency in the London foreign
exchange market with Dollars at or about 11.00 a.m. on a particular
day;
"FACILITY B"
means the facility referred to in Clause 2.1(b) (The Facilities);
"FACILITY B ADVANCE"
means a Revolving Facility Advance made or to be made by a Revolving
Facility Bank (or a Swingline Advance made or to be made by a Swingline
Bank) under Facility B;
"FACILITY B AVAILABILITY PERIOD"
means the period from and including the Signing Date to and including
the date one month before the Final Maturity Date;
"FACILITY B COMMITMENT"
means in relation to a Bank:
(a) the amount in Dollars set opposite its name in Part II of
Schedule 1; or
(b) the amount of that Commitment acquired by such Bank pursuant
to Clause 28.2 (New Banks) and/or Clause 28.3 (Procedure for
transfers),
less in each case the amount of that Commitment cancelled, reduced or
transferred by that Bank pursuant to this Agreement;
"FACILITY B TOTAL COMMITMENTS"
means the aggregate for the time being of the Facility B Commitments,
being US$600,000,000 at the date of this Agreement;
"FACILITY OFFICE"
means, in relation to any Bank, the office(s) through which it will
perform all or any of its obligations under this Agreement being those
office(s) identified with its signature below (or, in the case of any
New Bank, the office(s) specified in the relevant Transfer Certificate)
or such other office(s) as it may from time to time select by not less
than five Business Days' notice to the relevant Agent;
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"FEDERAL FUNDS RATE"
means, in relation to any day, the rate per annum equal to:
(a) the weighted average of the rates on overnight Federal funds
transactions with members of the US Federal Reserve System
arranged by Federal funds brokers, as published for that day
(or, if that day is not a New York Business Day, for the
immediately preceding New York Business Day) by the Federal
Reserve Bank of New York; or
(b) if a rate is not published for that day or preceding day, the
average of the quotations for that day on those transactions
received by the Swingline Agent from three Federal funds
brokers of recognised standing selected by the Swingline
Agent.
"FEE LETTER"
means each of:
(i) the Underwriting and Mandate Letter from the Arrangers to the
Borrowers dated 10th October, 2001 setting out the amount of
fees referred to in Clause 22.1 (Front-end fees); and
(ii) the Agency Fee Letter from the Facility Agent to Existing NGG,
New NG and NGGF dated on or around the Signing Date setting
out the amount of fees referred to in Clause 22.4 (Agency
fee).
"FINAL MATURITY DATE"
means, subject to Clause 8 (Prepayment and Cancellation):
(a) in relation to Facility A:
(i) the date falling 364 days after the Signing Date; or
(ii) where any Revolving Facility Banks agree to extend
the Facility A Availability Period pursuant to Clause
5.7 (Extension of Facility A Availability Period)
then, with respect to Revolving Facility Advances
made under Facility A by those Revolving Facility
Banks only, the date that is 364 days after the date
in paragraph (a)(i) above; or
(iii) in the case of a Term-out Advance, the date specified
as such in the Utilisation request for that Term-out
Advance,
(b) in relation to Facility B, the fifth Anniversary;
"FINANCE DOCUMENT"
means this Agreement, a Fee Letter, a Transfer Certificate, a Borrower
Accession Agreement and any other document designated in writing as
such by an Agent and NGG;
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"FINANCE PARTY"
means each of the Arrangers, the Banks and the Agents (as the context
requires);
"FINANCIAL INDEBTEDNESS"
means (without double counting) any indebtedness in respect of:
(a) moneys borrowed or debit balances at banks and other financial
institutions;
(b) any debenture, bond, note, commercial paper, loan stock or
other debt instrument;
(c) any acceptance or documentary credit facilities, xxxx
discounting or factoring facilities;
(d) receivables sold or discounted (otherwise than on a
non-recourse basis);
(e) the acquisition cost of any asset to the extent payable before
or after the time of acquisition or possession by the party
liable where the advance or deferred payment is arranged
primarily as a method of raising finance or financing the
acquisition of that asset;
(f) leases (whether in respect of land, machinery, equipment or
otherwise) entered into primarily as a method of raising
finance or financing the acquisition of the asset leased;
(g) currency or interest swap, cap or collar arrangements or any
other derivative instrument;
(h) amounts raised under any other transaction having the
commercial effect of a borrowing or raising of money; and
(i) any guarantee, indemnity or similar assurance in respect of
indebtedness of any person falling within any of paragraphs
(a) to (h) (both inclusive) above;
"FINANCIAL INDEBTEDNESS LIMIT"
means each of the limits placed on the amount of permitted Financial
Indebtedness of Subsidiaries set out in paragraph (a)(iii) of Clause
19.15 (Restriction on Subsidiary Financial Indebtedness);
"GRID CODE"
means the Grid Code drawn up pursuant to the Transmission Licence(s),
as from time to time revised in accordance with the Transmission
Licence(s);
"GROUP"
means NGG and its Subsidiaries from time to time and including, after
the Niagara Mohawk Acquisition Completion Date, the Niagara Mohawk
Group, but if at any time a Project
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Finance Company is a Subsidiary Undertaking but not a Companies Act
Subsidiary, then, for so long as it shall be a Subsidiary Undertaking
but not a Companies Act Subsidiary, it shall be deemed for the purposes
of the Finance Documents (unless the contrary is specified) not to be a
member of the Group;
"GUARANTOR"
means NGG.
"INFORMATION MEMORANDUM"
means the Information Memorandum to be prepared and delivered to
potential lenders in connection with primary syndication of the
Facilities (including any supplements);
"INTEREST DATE"
means the last day of an Interest Period;
"INTEREST PERIOD"
means, in relation to a Term-out Advance, each period determined in
accordance with Clause 9.1 (Selection of Interest Periods for Term-out
Advances) or, in relation to overdue amounts, Clause 9.4 (Default
interest);
"INTEREST PERIOD SELECTION NOTICE"
means a notice substantially in the form set out in Schedule 4 (Form of
Utilisation Request/Interest Period Selection Notice);
"LIBOR"
means in relation to any Advance (other than a Swingline Advance):
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or period of
that Advance) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Facility
Agent at its request, quoted by the Reference Banks to leading
banks in the London interbank market
at or about 11.00 a.m. London time on the applicable Rate Fixing Day
for the offering of deposits in the currency of the relevant Advance
for the applicable Interest Period for a Term-out Advance or the Term
of a Facility A Advance (other than a Term-out Advance) or of a
Facility B Advance;
"LICENCE"
means each of:
(a) the Transmission Licences granted by the Secretary of State to
a member of the Group under section 6(1)(b) of the Electricity
Act; and
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(b) each other licence or other similar authorisation granted by
any relevant authority in any applicable jurisdiction to a
member of the Group pursuant to an Energy Law or otherwise to
permit it to carry out generation, transmission, distribution
or supply of electricity;
"MCUSA"
means the master connection and use of systems agreement, as defined in
the BSC.
"MAJORITY BANKS"
means, at any time, Revolving Facility Banks the sum of the aggregate
Original Dollar Amount of whose Utilisations and undrawn Commitments at
that time aggregate at least 66 2/3 per cent. of the sum of the
aggregate Original Dollar Amount of all Utilisations then outstanding
and the then undrawn Total Commitments (or if the Total Commitments
have been reduced to zero and there are no Utilisations then
outstanding, whose Commitments aggregate at least 66 2/3 per cent. of
the Total Commitments immediately before the reduction);
"MANDATORY COST"
means:
(a) the cash ratio and special deposit requirements of the Bank of
England and/or the banking supervision or other costs imposed
by the Financial Services Authority, as determined in
accordance with Schedule 3 (Calculation of the Mandatory
Cost);
(b) in relation to an Advance denominated in dollars to a US
Subsidiary made available by a US incorporated Bank or a US
branch of a non-US incorporated Bank, the cost (if any)
certified by that Bank as being the cost to it of complying
with Regulation D of the Board of Governors of the Federal
Reserve System of the United States (or any successor)
attributable to such Advance; and
(c) in relation to an Advance denominated in any other currency,
the cost (if any) certified by any relevant Bank as being the
cost to it of complying with any applicable regulatory or
central bank requirement relating to Advances in that currency
made through a branch in the jurisdiction of the relevant
currency (including, for the avoidance of doubt, any reserve
asset requirements of the European Central Bank);
"MATURITY DATE"
means the last day of the Term of a Facility A Advance (other than a
Term-out Advance) or a Facility B Advance;
"XXXXX'X"
means Xxxxx'x Investors Services, Inc.;
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"MULTI EMPLOYER PLAN"
means a "multi employer plan" as defined in Section 4001(a)(3) of ERISA
to which any Obligor or any member of the Controlled Group has an
obligation to contribute;
"NEW YORK BUSINESS DAY"
means a day (other than a Saturday or a Sunday) on which banks are open
for business in New York.
"NGG"
means:
(a) prior to, but not after, the Registration Date, Existing NGG;
and
(b) on or after the Registration Date, New NG.
"NG COMPANY"
means The National Grid Company plc;
"NIAGARA MOHAWK"
means Niagara Mohawk Holdings, Inc.
"NIAGARA MOHAWK ACQUISITION COMPLETION DATE"
means the date specified as such in the certificate in relation to the
Acquisition delivered to the Facility Agent as referred to in paragraph
(e) of Part II of Schedule 2 (Conditions Precedent Documents);
"NIAGARA MOHAWK GROUP"
means Niagara Mohawk and its Subsidiaries;
"NIAGARA MOHAWK MERGER AGREEMENT"
means the Agreement and Plan of Merger and Scheme of Arrangement dated
as of 4th September, 2000 by and among Existing NGG and Niagara Mohawk,
amongst others;
"OFFEROR"
means NGG or a wholly owned subsidiary of NGG;
"OBLIGOR"
means each of the Borrowers and/or the Guarantor as the context
requires;
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"OPTIONAL CURRENCY"
means Sterling, Euros and any other currency (excluding any Euro
Sub-Denominations) which is for the time being freely transferable and
convertible into Dollars and deposits of which are readily available in
the London interbank market;
"ORIGINAL DOLLAR AMOUNT"
means in relation to Utilisations under Facility A or Facility B or the
aggregate of all Utilisations under both Facilities:
(a) if a Utilisation is denominated in Dollars, the principal
amount of that Utilisation; or
(b) if a Utilisation is denominated in any other currency, the
principal amount of that Utilisation notionally converted into
Dollars on the basis of the Facility Agent's Spot Rate of
Exchange on the date of receipt by the Facility Agent of the
Utilisation Request for, or Interest Period Selection Notice
in relation to, that Utilisation;
"ORIGINAL GROUP ACCOUNTS"
means the audited consolidated accounts of the Group for the year ended
31st March, 2001 prepared in accordance with the historic cost
convention;
"PARTICIPATING MEMBER STATE"
means a member state of the European Union that, at the relevant time,
has adopted the Euro as its currency in accordance with EMU
legislation;
"PARTY"
means a party to this Agreement;
"PBGC"
means the Pension Benefit Guaranty Corporation;
"PLAN"
means an "employee benefit plan" (as defined in Section 3(3) of ERISA);
"PUHCA"
means the United States of America Public Utility Holding Company Act
of 1935, as amended;
"PRIMARY SYNDICATION PERIOD"
means the period ending on the earlier of the date the Facility Agent
notifies NGG that primary syndication of the Facilities is completed
and 31st March, 2002 (or such other date as NGG and the Arrangers may
agree);
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"PRIME RATE"
means, on any day, the prime commercial lending rate from time to time
publicly announced by the Swingline Agent, which rate may not be the
lowest rate charged to its borrowers. Each change in the interest rate
on a Swingline Advance which results from a change in the Prime Rate
becomes effective on the day on which the change in the Prime Rate
becomes effective.
"PRINCIPAL SUBSIDIARY"
means:
(i) an Obligor (other than NGG); or
(ii) any other member of the Group whose tangible net worth or net
pre-taxation profits at any time equal or exceed five per
cent. (5%) of the Tangible Consolidated Net Worth or net
pre-taxation profits of the Group at that time, and for the
purposes of the above:
(a) the net pre-taxation profits of the Subsidiary shall
be ascertained by reference to:
(i) the accounts (consolidated in the case of a
company which itself has Subsidiaries and
which, in the normal course, prepares
consolidated accounts) of the Subsidiary
based upon which the latest audited
consolidated accounts of the Group have been
made up; or
(ii) if the company becomes a Subsidiary of NGG
after the end of the financial period to
which the latest audited consolidated
accounts of the Group relate, the latest
accounts (consolidated in the case of a
company which itself has Subsidiaries and
which, in the normal course, prepares
consolidated accounts) of the Subsidiary;
and
(b) tangible net worth of the Subsidiary shall be
ascertained by reference to the Tangible Consolidated
Net Worth definition contained in this Clause,
changed where necessary and as if references therein
to NGG were references to such Subsidiary, and
references therein to the relevant period were
references to the financial year of such Subsidiary
and on the basis that all intra-Group items and
investments shall be excluded; and
(c) the net pre-taxation profits of the Group shall be
ascertained by reference to the latest audited
consolidated accounts of the Group, adjusted (where
appropriate) to reflect the net pre-taxation profits
of any company subsequently acquired or disposed of,
PROVIDED ALWAYS that if the whole or substantially the whole of the
assets of a Principal Subsidiary is transferred by that Principal
Subsidiary (the "DISPOSING SUBSIDIARY") to another Subsidiary of NGG
(the "RECEIVING SUBSIDIARY") or a number of Subsidiaries of NGG, the
disposing Subsidiary shall forthwith upon the transfer cease to be a
Principal Subsidiary and the receiving Subsidiary shall forthwith upon
the transfer become a Principal Subsidiary;
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"PROJECT FINANCE BORROWING"
means any Financial Indebtedness to finance a project:
(a) which is borrowed by a single purpose company, partnership or
other legal person (whether or not a member of the Group)
where its or one or more of its subsidiaries, principal assets
and business are constituted by that project and whose
liabilities in respect of the Financial Indebtedness concerned
are not directly or indirectly the subject of a guarantee,
indemnity or other form of assurance, undertaking or support
from any member of the Group (except as expressly referred to
in paragraph (b)(iii) below or as a result of the making of
acceptances or endorsements of bills in the ordinary course of
trading or payment netting arrangements and other usual course
of business banking arrangements); or
(b) in respect of which the person or persons making that
Financial Indebtedness available to the relevant borrower
(whether or not a member of the Group) have no recourse
whatsoever to any member of the Group for the repayment of or
payment of any sum relating to that Financial Indebtedness
other than:
(i) recourse to the borrower or one or more of its
subsidiaries, for amounts limited to the aggregate
cash flow or net cash flow (other than historic cash
flow or historic net cash flow) from the project;
and/or
(ii) recourse to the borrower, or one or more of its
subsidiaries or any shareholder of the borrower for
the purpose only of enabling amounts to be claimed in
respect of that Financial Indebtedness in an
enforcement of any Security Interest permitted
pursuant to Clause 19.8 (Negative pledge) given by
the borrower or one or more of its subsidiaries over
the assets comprised in the project (or given by any
shareholder of the borrower over its shares in the
borrower together with, in the case of a UK
incorporated shareholder whose only material assets
are those shares in the borrower, a supporting
floating charge over all or substantially all of its
assets, to secure that Financial Indebtedness or any
recourse referred to in (iii) below or as a result of
the making of acceptances or endorsements of bills in
the ordinary course of trading or payment netting
arrangements and other usual course of business
banking arrangements, provided that (A) the extent of
the recourse to the borrower or one or more of its
subsidiaries or shareholder is limited solely to the
amount of any recoveries made on any such
enforcement, and (B) the person or persons are not
entitled, by virtue of any right to claim arising out
of or in connection with the Financial Indebtedness,
to commence proceedings for the winding up or
dissolution of the borrower or shareholder or to
appoint or procure the appointment of any receiver,
trustee or similar person or official in respect of
the borrower or shareholder or any of its assets
(save for the assets the subject of the relevant
Security Interest); and/or
(iii) recourse to such borrower generally, or directly or
indirectly to a member of the Group under any form of
assurance or undertaking, which recourse is limited
to a claim for damages (other than liquidated damages
and damages required to be calculated in a specified
way) for breach of an obligation (not
17
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being a payment obligation or an obligation to
procure payment by another or an obligation to comply
or to procure compliance by another with any
financial ratios or other tests of financial
condition) by the person against whom such recourse
is available; or
(c) which the Majority Banks shall have agreed in writing to treat
as Project Finance Borrowing for the purposes of the Finance
Documents.
If at any time any Financial Indebtedness is made to finance a project
and that Financial Indebtedness does not qualify as a Project Finance
Borrowing pursuant to the above paragraphs (b)(i), (ii) or (iii) but
would so qualify if there were not recourse to a member of the Group
which is either (i) limited as to the period during which it is in
force (for example, during the period up to completion of the project)
or (ii) limited as to the obligations of the borrower to which it
applies, then, in any such case, the Financial Indebtedness shall be
regarded as a Project Finance Borrowing for the purposes of this
definition to the extent that, and during the period that, there is no
such recourse to a member of the Group;
"PROJECT FINANCE COMPANY"
means any company, partnership or other legal person falling within the
scope of paragraph (a) of the definition of Project Finance Borrowing
or which the Majority Banks have agreed shall be treated as a Project
Finance Company for the purposes of the Finance Documents;
"QUALIFYING BANK"
means a Bank which is:
(a) for an Advance to a Borrower incorporated in the United
Kingdom, either:
(i) a UK Bank; or
(ii) a Treaty Bank; or
(b) for an Advance to a U.S. Borrower, either:
(i) not a foreign person for U.S. federal income tax
purposes or a person whose payments of principal,
interest, fees and other amounts under the Finance
Documents are effectively connected with the conduct
of a trade or business in the United States of
America; or
(ii) a Treaty Bank.
"RATE FIXING DAY"
means:
(a) in relation to any Advance (other than a Swingline Advance or
an Acquisition Advance):
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(i) the second Business Day before the first day of an
Interest Period or the Term of an Advance (other than
an Advance in Sterling or Euros); or
(ii) in the case of an Advance in Sterling, the first day
of the Term of that Advance; or
(iii) in the case of an Advance in Euros, the second TARGET
Day before the first day of an Interest Period or the
Term of that Advance,
or such other day on which it is market practice in the
relevant interbank market for leading banks to give quotations
for deposits in the relevant currency for delivery on the
first day of the relevant Interest Period or Term, as
determined by the Facility Agent; and
(b) in relation to an Acquisition Advance:
(i) the Business Day before the first day of an Interest
Period or the Term of an Advance in Dollars; or
(ii) in the case of an Advance in Sterling, the first day
of the Term of that Advance.
"REFERENCE BANKS"
means, subject to Clause 28.5 (Reference Banks), the principal London
offices of Dresdner Bank AG London Branch, The Chase Manhattan Bank and
HSBC Bank plc;
"REGISTRATION DATE"
means the date upon which an office copy of the order of the High Court
of Justice sanctioning the Scheme of Arrangement under Section 425 of
the Companies Act 1985 is registered with the Registrar of Companies
pursuant to sub-section 3 of Section 425 of the Companies Xxx 0000.
"REGULATED HOLDING COMPANY"
means, in respect of any Bank, any person which is a Holding Company
(as defined in section 736 of the Companies Act 1985) of that Bank and
is regulated as a bank or other financial institution;
"REGULATED UK SUBSIDIARY"
means, at any time, any member of the Group (other than NG Company)
which operates any part of the Transmission Business carried on, as at
the date of this Agreement, by NG Company pursuant to its Transmission
Licence;
"REGULATED U.S. SUBSIDIARY"
means any Subsidiary of NGG including, after the Niagara Mohawk
Acquisition Completion Date, Niagara Mohawk, and any Subsidiary of
Niagara Mohawk which operates any electricity generation, transmission,
distribution or supply business pursuant to any Energy
19
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Laws of the United States or of any State of the United States or
pursuant to a Licence issued pursuant to such Energy Laws;
"REGULATIONS T, U AND X"
means, respectively, regulations T, U and X of the Board of Governors
of the Federal Reserve System of the United States (or any successor);
"RELEVANT TIME"
means the applicable time set opposite a Clause number in Schedule 7
(Timetables);
"REPORTABLE EVENT"
means a reportable event as defined in Section 4043 of ERISA and the
regulations issued under such section with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation
waived the requirement of Section 4043(a) of ERISA that it be notified
within 30 days of the occurrence of such event, provided, however, that
a failure to meet the minimum funding standard of Section 412 of the
U.S. Code and of Section 302 of ERISA shall be a Reportable Event
regardless of the issuance of any such waiver of the notice requirement
in accordance with either Section 4043(a) of ERISA or Section 412(d) of
the U.S. Code;
"REQUESTED AMOUNT"
means the requested amount of a Utilisation as set out in a Utilisation
Request;
"REVOLVING FACILITY ADVANCES"
means any Advances under the Facilities except Term-out Advances and
Swingline Advances;
"REVOLVING FACILITY BANKS"
means each of the banks and financial institutions listed in Parts I
and II of Schedule 1 (The Banks), their respective successors in title
and any other bank or financial institution which becomes a Party
pursuant to Clause 28.3 (Procedure for transfers);
20
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"SCHEME OF ARRANGEMENT"
means the scheme of arrangement to be implemented under Section 425 of
the Companies Xxx 0000 prior to the Acquisition pursuant to which New
NG shall become the listed Group holding company and shall own (i) 100%
of the ordinary shares in Existing NGG and (ii) by virtue of its
ownership of National Grid (US) Holdings Limited, 100% of Niagara
Mohawk;
"SCREEN RATE" means:
(a) in relation to LIBOR, the British Bankers Association Interest
Settlement Rate for the relevant currency and period; and
(b) in relation to EURIBOR, the percentage rate per annum
determined by the Banking Federation of the European Union for
the relevant period
displayed on the appropriate page of the Telerate screen. If the agreed
page is replaced or service ceases to be available, the Facility Agent
may specify another page or service displaying the appropriate rate
after consultation with NGG and the Banks.
"SECURITY INTEREST"
means any mortgage, pledge, lien, charge, assignment, hypothecation or
security interest or any other agreement or arrangement having the
effect of conferring security;
"SIGNING DATE"
means the date of this Agreement;
"S&P"
means Standard & Poor's Corporation;
"SUBSIDIARIES"
means Companies Act Subsidiaries and Subsidiary Undertakings (and
"SUBSIDIARY" shall be construed accordingly);
"SUBSIDIARY UNDERTAKING"
means a subsidiary undertaking within the meaning of Section 258 of the
Companies Xxx 0000 (as inserted by Section 21 of the Companies Act
1989);
"SWINGLINE ADVANCE"
means a Facility B Advance made or to be made by a Swingline Bank under
the Swingline Advance Facility and drawn under Clause 6.1 (Receipt of
Utilisation Requests);
"SWINGLINE ADVANCE FACILITY"
means the facility referred to in Clause 2.1(b)(ii) (The Facilities),
which comprises a subset of Facility B;
21
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"SWINGLINE BANKS"
means each of the banks and financial institutions (being, in each
case, a Revolving Facility Bank or a Revolving Facility Bank's
Affiliated Bank) listed in Part III of Schedule 1 (The Banks), their
respective successors in title and any other bank or financial
institution which becomes a Party pursuant to Clause 28.3 (Procedure
for transfers);
"SWINGLINE COMMITMENT"
means in relation to a Swingline Bank:
(a) the amount in Dollars set opposite its name in Part III of
Schedule 1 (The Banks); or
(b) the amount of that Commitment acquired by such Bank pursuant
to Clause 28.2 (New Banks) and/or Clause 28.3 (Procedure for
transfers),
less in each case the amount of that Commitment cancelled, reduced or
transferred by that Bank pursuant to this Agreement;
"SWINGLINE RATE"
means, on any day, the higher of:
(a) the US Dollar Prime Rate, and
(b) the aggregate of the Federal Funds Rate plus 0.50 per cent.
per annum
on that day;
"TANGIBLE CONSOLIDATED NET WORTH"
means at any time the aggregate of:
(i) the amount paid up or credited as paid up on the issued share
capital of NGG; and
(ii) the amount standing to the credit of the consolidated capital
and revenue reserves of the Group,
based on the Balance Sheet but adjusted by (without double counting):
(A) adding any amount standing to the credit of the profit and
loss account for the Group for the period ending on the date
of the Balance Sheet, to the extent not included in paragraph
(ii) above and to the extent the amount is not attributable to
any dividend or other distribution declared, recommended or
made by NGG or any other member of the Group to the extent of
any minority interests therein;
(B) deducting any amount standing to the debit of the profit and
loss account for the Group for the period ending on the date
of the Balance Sheet;
22
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(C) reflecting any variation in the amount of the issued share
capital of NGG and the consolidated capital and revenue
reserves of the Group after the date of the Balance Sheet;
(D) reflecting any variation in the interest of NGG in any other
member of the Group since the date of the Balance Sheet;
(E) excluding any amount attributable to deferred taxation to the
extent included in paragraphs (i) and (ii) above; and
(F) excluding any amount attributable to minority interests to the
extent included in paragraphs (i) and (ii) above;
"TARGET DAY"
means a day on which the Trans-European Automated Real-Time Gross
Settlement Express Transfer (TARGET) System is open;
"TERM"
means, in relation to any Advance (other than a Term-out Advance) the
period selected by a Borrower for which the relevant Advance is to be
outstanding, as specified in the Utilisation Request;
"TERM-OUT ADVANCE"
means a Facility A Advance drawn under paragraph (b) of Clause 7.1
(Repayment of Facility A Advances);
"TOTAL COMMITMENTS"
means, on any day and from time to time, the aggregate of the Facility
A Total Commitments and the Facility B Total Commitments;
"TOTAL SWINGLINE COMMITMENTS"
means, on any day and from time to time, the aggregate of the Swingline
Commitments;
"TRANSFER CERTIFICATE"
has the meaning given to it in Clause 28.3 (Procedure for transfers);
"TRANSMISSION BUSINESS"
has the meaning given to it in the relevant Transmission Licence;
"TRANSMISSION LICENCE"
means a licence granted under Section 6(l)(b) of the Electricity Act;
23
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"TREATY BANK"
means an institution which is resident (as such term is defined in the
appropriate Double Taxation Treaty) in a country with which the United
Kingdom or the United States of America, as appropriate, has an
appropriate Double Taxation Treaty giving residents of that country
exemption from UK or U.S., as applicable, taxation on interest and does
not carry on business in the United Kingdom or the United States of
America, as appropriate, through a permanent establishment with which
the Facilities are effectively connected.
"UK BANK"
means a Bank which is within the charge to UK corporation tax in
respect of, and is beneficially entitled to, a payment of interest on a
Facility made by a person that was a bank for the purposes of Section
349 of the Income and Corporation Taxes Act 1988 (as currently defined
in Section 840A of the Income and Corporation Taxes Act 1988) at the
time a Facility was made available.
"UNITED KINGDOM"
means the United Kingdom of Great Britain and Northern Ireland;
"UNITED STATES"
means the United States of America;
"U.S. BORROWER"
means a Borrower incorporated in the United States;
"U.S. CODE"
means the United States Internal Revenue Code of 1986, as amended and
any rule or regulation issued thereunder from time to time in effect;
"UTILISATION"
means a utilisation of any of the Facilities pursuant to the terms of
this Agreement and includes all the Advances made or to be made
therein;
"UTILISATION DATE"
means in the case of any Utilisation, the date for the making of the
relevant Advances;
"UTILISATION REQUEST"
means a notice substantially in the form set out in Schedule 4 (Form of
Utilisation Request/Interest Period Selection Notice);
"UTILITIES ACT"
24
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means the Utilities Xxx 0000 as amended from time to time and all
subordinate legislation made under it;
1.2 CONSTRUCTION
(a) In this Agreement, unless the contrary intention appears, any reference
to:
(i) an "AMENDMENT" includes a supplement, variation, novation,
re-enactment or a waiver;
"ASSETS" includes present and future properties, revenues and
rights of every description;
an "AUTHORISATION" includes an authorisation, consent,
approval, resolution, licence, exemption, filing, registration
and notarisation;
"BARCLAYS CAPITAL" is a reference to Barclays Capital, the
investment banking division of Barclays Bank PLC;
"INDEBTEDNESS" shall be construed so as to include any
obligation for the payment or repayment of money, whether
present or future, actual or contingent and whether incurred
as principal or surety;
a "MONTH" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day
in the next calendar month, except that:
(1) if the numerically corresponding day is not a
Business Day, that period shall end on the next
Business Day in that calendar month (if there is one)
or the preceding Business Day (if there is not); or
(2) if there is no numerically corresponding day in the
month in which that period ends, that period shall
end on the last Business Day in that calendar month;
a "PERSON" includes any individual, company, unincorporated
association or body or persons (including a partnership, joint
venture or consortium), government, state, agency,
international organisation or other entity;
a "REGULATION" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law, but, if not having the force of law, being one
with which the relevant Party is accustomed to comply) of any
governmental body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(ii) a provision of a law is a reference to that provision as
amended or re-enacted;
(iii) the term "SECRETARY OF STATE" shall be construed as a
reference to that term as used in the Electricity Act;
(iv) a Clause or a Schedule is a reference to a clause of or a
schedule to this Agreement;
(v) a person includes its successors, transferees and assigns;
25
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(vi) a Finance Document or another document is a reference to that
Finance Document or that other document as amended;
(vii) a time of day is a reference to London time; and
(viii) "STERLING" and "(POUND)" and "DOLLARS" and "US$" denote the
lawful currencies for the time being of the United Kingdom of
Great Britain and Northern Ireland and the United States of
America respectively.
(b) Unless the contrary intention 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.
(c) The index and headings in this Agreement are for convenience only and
are to be ignored in construing this Agreement.
2. THE FACILITIES
2.1 THE FACILITIES
Subject to the terms and conditions hereof, the Xxxxx xxxxx to the
Borrowers the following facilities:
(a) a committed 364 day Dollar denominated multi-currency
revolving credit facility, with an option to draw Term-out
Advances, to be designated as Facility A, under which the
Revolving Facility Banks shall, when requested by any
Borrower, make cash advances in Dollars or in Optional
Currencies to that Borrower on a revolving basis during the
Facility A Availability Period; and
(b) a committed 5 year Dollar denominated multi-currency revolving
credit facility under which
(i) the Revolving Facility Banks will, when requested by
any Borrower, make cash advances in Dollars or
Optional Currencies to that Borrower on a revolving
basis during the Facility B Availability Period, and
(ii) the Swingline Banks shall, when requested by any
Borrower, make to that Borrower Swingline Advances in
Dollars to that Borrower on a revolving basis during
the Facility B Availability Period.
2.2 OVERALL FACILITIES LIMIT AND SUB-LIMIT
(a) No Utilisation shall be made if it would cause the aggregate Original
Dollar Amount of all outstanding Advances:
(i) under Facility A, to exceed the Facility A Total Commitments;
or
(ii) under Facility B, to exceed the Facility B Total Commitments.
26
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(b) No Utilisation shall be made if it would cause the aggregate Original
Dollar Amount of all outstanding Utilisations under the Swingline
Advance Facility to exceed the Total Swingline Commitments.
2.3 BANK LIMITS
(a) No Facility A Advance shall be made by any Revolving Facility Bank if
the operation of Clause 5.3 (Amount of each Revolving Facility Bank's
Advance) would cause the total amount outstanding and owing to that
Bank (the "AFFECTED BANK") to exceed its Facility A Commitment.
(b) No Facility B Advance shall be made by any Revolving Facility Bank if
the operation of Clause 5.3 (Amount of each Revolving Facility Bank's
Advance) would cause the total amount outstanding and owing to the
affected Bank to exceed its Facility B Commitment.
(c) No Swingline Advance shall be made by any Swingline Bank if the
operation of Clause 6.3 (Amount of each Swingline Bank's Advance) would
cause the total amount outstanding and owing to the affected Bank to
exceed its Swingline Commitment or its Facility B Commitment.
(d) No Facility B Advance shall be made by any Revolving Facility Bank or
its Affiliated Bank if it would cause the aggregate amount outstanding
and owing to both the Revolving Facility Bank and its Affiliated Bank
under Facility B to exceed the aggregate of that Revolving Facility
Bank's and its Affiliated Bank's Facility B Commitment.
(e) For the purposes of this Clause 2.3, the "TOTAL AMOUNT OUTSTANDING" of
a Bank under any Facility on any Utilisation Date is the aggregate
Original Dollar Amount of all Advances made by that Bank under that
Facility which would be outstanding on that Utilisation Date if:
(i) all outstanding Utilisations having Maturity Dates or Final
Maturity Dates which fall on or before that Utilisation Date
are repaid; and
(ii) all Utilisations to be made on or before that Utilisation Date
and in respect of which a Utilisation Request has been
received by the relevant Agent are made.
2.4 AVAILABILITY, NUMBER OF UTILISATION REQUESTS AND UTILISATIONS
(a) No Utilisation may be made at any time after the date one month prior
to the applicable Final Maturity Date.
(b) No Utilisation Request may specify a Utilisation Date which is within
three Business Days of another Utilisation Date (unless the Utilisation
the subject of that Utilisation Request is to refinance an existing
Utilisation).
(c) No more than one Utilisation Request may be delivered on any one day
but that Utilisation Request may subject to Clause 5 (Availability of
Revolving Facility Advances and Term-out Advances) and Clause 6 (The
Swingline Advance Facility) specify any number and type of Utilisations
from Facility A or Facility B or both of them.
27
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(d) Unless the Facility Agent agrees otherwise, no more than 20
Utilisations may be outstanding at any one time (taking all Facilities
together for this purpose) save that no Utilisations under the
Swingline Advance Facility are to be counted for the purposes of this
provision.
2.5 PRIMARY SYNDICATION PERIOD
(a) Subject to paragraph (b) below, but otherwise notwithstanding any
provision of this Agreement, no Borrower will deliver a Utilisation
Request or Interest Period Selection Notice during the Primary
Syndication Period specifying a Term or an Interest Period other than
one, two or three weeks or one month.
(b) Except as the Facility Agent (after consultation with the Arrangers)
and NGG may otherwise agree, each Interest Period Selection Notice or
Utilisation Request delivered during the Primary Syndication Period
shall specify an Interest Period or Term ending on the same date as
each other Advance to be drawn or rolled over on the same date and, if
there are Advances then outstanding, ending on the same date as such
other Advances.
2.6 NATURE OF EACH FINANCE PARTY'S RIGHTS AND OBLIGATIONS
(a) The obligations of each Finance Party under the Finance Documents are
several.
(b) The failure of a Finance Party to carry out those obligations does not
relieve any other Party of its obligations under the Finance Documents
and no Finance Party is responsible for the obligations of any other
Finance Party under the Finance Documents.
(c) The rights of a Finance Party under the Finance Documents are divided
rights and a Finance Party may, except as otherwise stated in the
Finance Documents, separately enforce those rights.
2.7 BORROWERS' AGENT
Each Obligor irrevocably authorises and instructs NGG as the Borrowers'
agent to give and receive as agent on its behalf all notices (including
Utilisation Requests) and sign all documents in connection with the
Finance Documents on its behalf and take such other action as may be
necessary or desirable under or in connection with the Finance
Documents and confirms that it will be bound by any action taken by NGG
as the Borrowers' agent under or in connection with the Finance
Documents.
2.8 ACTIONS OF BORROWERS' AGENT
The respective liabilities of each of the Obligors under the Finance
Documents shall not be in any way affected by:
(a) any irregularity (or purported irregularity) in any act done
by or any failure (or purported failure) by NGG;
(b) NGG acting (or purporting to act) in any respect outside any
authority conferred upon it by any Obligor; or
(c) the failure (or purported failure) by or inability (or
purported inability) of NGG to inform any Obligor of receipt
by it of any notification under this Agreement.
28
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3. PURPOSE
3.1 USE OF PROCEEDS
Each Borrower shall apply each Utilisation made by it:
(a) under Facility A, in or towards financing or refinancing the
Acquisition (plus related fees, costs and expenses) and/or
refinancing existing borrowings of Niagara Mohawk and its
Subsidiaries and/or financing any working capital requirements
of the Borrowers consequent upon the Acquisition or any
interest payable on funds used to finance the Acquisition;
and/or
(b) under Facility B, to meet the general corporate purposes of
the Group,
but no Borrower shall apply the proceeds of a Swingline Advance towards
the repayment of an outstanding Swingline Advance.
3.2 NO ENQUIRY
Without affecting the obligations of any Obligor in any way no Finance
Party is bound to monitor or verify the application of the proceeds of
any Utilisation.
4. CONDITIONS PRECEDENT
4.1 DOCUMENTARY CONDITIONS PRECEDENT
The obligations of each Finance Party to any Obligor under this
Agreement are subject to the condition precedent that the Facility
Agent has notified NGG and the Banks that it has received all of the
documents set out in Part I of Schedule 2 (Conditions Precedent
Documents) in form and substance satisfactory to that Agent.
4.2 FURTHER CONDITIONS PRECEDENT
The obligations of each Finance Party to participate in any Utilisation
of Facility A are subject to the further condition precedent that the
Facility Agent has notified NGG and the Revolving Facility Banks that
it has received all of the documents set out in Part II to Schedule 2
(Conditions Precedent Documents) in form and substance satisfactory to
the Facility Agent.
4.3 FURTHER CONDITIONS PRECEDENT GENERALLY
The obligations of each Bank to participate in a Utilisation are
subject to the further conditions precedent that on both the relevant
date of the Utilisation Request and the Utilisation Date:
(a) the representations and warranties in Clause 18
(Representations and Warranties) to be repeated on those dates
are correct and will be correct in all material respects
immediately after the Utilisation; and
(b) no Default is outstanding or would result from the Utilisation
(provided that where no notice has been given pursuant to
Clause 20.18 (Acceleration) but where a Default
29
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is outstanding each Bank shall be obliged to participate in a
Utilisation, to the extent required by the terms hereof, where
such Utilisation is in the same currency as and is in an
amount equal to or less than an outstanding Utilisation which
is to mature on the Utilisation Date for the proposed
Utilisation and is to be applied on such Utilisation Date in
repaying such outstanding Utilisation).
5. AVAILABILITY OF REVOLVING FACILITY ADVANCES AND TERM-OUT ADVANCES
5.1 RECEIPT OF UTILISATION REQUESTS
The Borrowers may borrow Revolving Facility Advances and Term-out
Advances if the Facility Agent receives, not later than the Relevant
Time, a duly completed Utilisation Request. Each such Utilisation
Request shall be copied to the Swingline Agent.
5.2 FORM OF UTILISATION REQUEST
A Utilisation Request for a Revolving Facility Advance or a Term-out
Advance will not be regarded as having been duly completed unless:
(a) the proposed Utilisation Date is a Business Day during the
applicable Facility A Availability Period or Facility B
Availability Period;
(b) in the case of a Term-out Advance under Facility A, the
Utilisation Request requests Advances from all those Revolving
Facility Banks (but not some only) with a Facility A
Availability Period expiring on the same day;
(c) the Requested Amount for each separate Utilisation comprising
a Revolving Facility Advance or a Term-out Advance is in a
minimum Original Dollar Amount of US$50,000,000 and an
integral multiple of US$10,000,000, (or such other amount as
the relevant Borrower and the Facility Agent may agree before
the delivery of that Utilisation Request) or an integral
multiple of the amounts in the relevant Optional Currency
agreed between the relevant Borrower and the Facility Agent
before the delivery of the relevant Utilisation Request;
(d) only one Term or, in the case of Term-out Advances under
Facility A, one Interest Period and Final Maturity Date, for
each separate Utilisation is specified which:
(i) in the case of a Utilisation under Facility A, does
not extend beyond the then applicable Facility A
Availability Period (other than in the case of
Term-out Advances); and
(ii) in the case of a Utilisation under Facility B, does
not extend beyond the Final Maturity Date; and
(iii) subject to Clause 2.5 (Primary Syndication Period),
is a period of
(A) 1, 2, 3 or 6 months for any Advance which is
not an Acquisition Advance (or, in any case,
such other period as all the Revolving
Facility Banks may previously have agreed
for the purposes of such Advances); or
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(B) 1, 2, 3, or 4 weeks, or 2, 3 or 6 months for
any Acquisition Advance;
(e) the payment instructions comply with Clause 11 (Payments); and
(f) in the case of a Term-out Advance under Facility A, the
proposed Final Maturity Date (which must be the same date for
all Term-out Advances drawn on the same date) is a date after
the applicable Facility A Availability Period but no later
than the third Anniversary.
Each Utilisation Request, once delivered, shall be irrevocable.
5.3 AMOUNT OF EACH REVOLVING FACILITY BANK'S ADVANCE
The amount of each Revolving Facility Bank's Advance will be the
proportion of the Requested Amount which its Commitment in respect of
the relevant Facility bears to the aggregate Commitments of all
Revolving Facility Banks in respect of that Facility on the date of
receipt of the relevant Utilisation Request, adjusted, if necessary, to
reflect the operation of Clause 2.3 (Bank limits).
5.4 NOTIFICATION TO REVOLVING FACILITY BANKS
The Facility Agent shall, not later than the Relevant Time, notify each
Revolving Facility Bank of the details of the requested Advances and
the aggregate amount of those Advances to be made by that Revolving
Facility Bank.
5.5 SELECTION OF AN OPTIONAL DURATION
(a) If a Borrower requests an Interest Period or a Term in a Utilisation
Request other than 1, 2, 3 or 6 months, it may also select in the
relevant Utilisation Request an alternative Interest Period or Term of
1, 2, 3 or 6 months to apply and paragraph (b) below shall apply.
(b) If:
(i) a Borrower requests an Interest Period or a Term other than 1,
2, 3 or 6 months; and
(ii) the Facility Agent receives notice from a Revolving Facility
Bank not later than the Relevant Time stating that it does not
agree to such request,
then the Interest Period or Term for the proposed Utilisation shall
instead be the alternative period specified in the relevant Utilisation
Request or, in the absence of any alternative selection, 3 months.
(c) If the Facility Agent receives a notice from a Revolving Facility Bank
under paragraph (b)(ii) above it shall notify the relevant Borrower and
the Revolving Facility Banks of the revised Interest Period or Term for
the proposed Advances not later than the Relevant Time.
(d) A Borrower may not request a Term or Interest Period other than 1, 2,
3, or 4 weeks, or 2, 3 or 6 months in respect of an Acquisition
Advance.
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5.6 PAYMENT OF PROCEEDS
Subject to the terms of this Agreement, each Revolving Facility Bank
shall make its Advance available to the Facility Agent for the relevant
Borrower for value on the relevant Utilisation Date.
5.7 EXTENSION OF FACILITY A AVAILABILITY PERIOD
NGG may, not earlier than 60 days nor later than 30 days prior to the
original expiry date of the Facility A Availability Period, request by
notice to the Facility Agent (who will promptly notify the Revolving
Facility Banks) that the Facility A Availability Period be extended to
a date which is not later than 364 days after the original expiry date
(the "EXTENDED DATE"). If any Revolving Facility Bank notifies the
Facility Agent that it agrees to extend the Facility A Availability
Period, then the Facility A Availability Period will be extended in
relation to that Revolving Facility Bank accordingly, whether or not
any other Revolving Facility Bank extends. No Revolving Facility Bank
is under any obligation of any kind to agree to NGG's request to extend
and any Revolving Facility Bank which fails to respond or reply within
the required period will be deemed to have declined to extend.
6. THE SWINGLINE ADVANCE FACILITY
6.1 RECEIPT OF UTILISATION REQUESTS
The Borrowers may borrow Swingline Advances if the Swingline Agent
receives, not later than the Relevant Time, a duly completed
Utilisation Request. Each such Utilisation Request shall be copied at
the same time to the Facility Agent.
6.2 FORM OF UTILISATION REQUESTS
A Utilisation Request for a Swingline Advance will not be regarded as
having been duly completed unless:
(a) the proposed Utilisation Date is a Business Day during the
Facility B Availability Period;
(b) the Requested Amount for each separate Utilisation is in a
minimum Original Dollar Amount of US$25,000,000 and an
integral multiple of US$5,000,000 or such other amount as the
relevant Borrower and the Swingline Agent may agree before the
delivery of that Utilisation Request;
(c) only one Utilisation is specified, the Term of which:
(i) does not extend beyond the then applicable Facility B
Availability Period; and
(ii) is a period not exceeding 5 Business Days;
(d) it specifies that it is a utilisation of the Swingline Advance
Facility and designates the Utilisation as a Facility B
Utilisation; and
(e) the payment instructions comply with Clause 11 (Payments).
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Each Utilisation Request, once delivered, shall be irrevocable.
6.3 AMOUNT OF EACH SWINGLINE BANK'S ADVANCE
The amount of each Swingline Bank's Advance will be the proportion of
the Requested Amount which its Swingline Commitment bears to the
aggregate Swingline Commitments of all Swingline Banks on the date of
receipt of the relevant Utilisation Request, adjusted, if necessary, to
reflect the operation of Clause 2.3 (Bank limits).
6.4 NOTIFICATION TO SWINGLINE BANKS
The Swingline Agent shall promptly notify each Swingline Bank of the
details of the requested Swingline Advances and the aggregate amount of
those Swingline Advances to be made by that Swingline Bank.
6.5 PAYMENT OF PROCEEDS
Subject to the terms of this Agreement, each Swingline Bank shall make
its Swingline Advance available to the Swingline Agent for the relevant
Borrower for value on the relevant Utilisation Date.
7. REPAYMENT
7.1 REPAYMENT OF FACILITY A ADVANCES
(a) Each Borrower will repay each Facility A Advance made to it in full on
its Maturity Date or, in the case of a Term-out Advance, its Final
Maturity Date, by payment to the Facility Agent for the relevant
Revolving Facility Bank. As Facility A is available on a revolving
basis during the Facility A Availability Period, amounts repaid to a
Revolving Facility Bank may be reborrowed from that Revolving Facility
Bank during the Facility A Availability Period applicable to that
Revolving Facility Bank subject to the terms of this Agreement.
(b) At any time prior to the expiry of the Facility A Availability Period
applicable to any Revolving Facility Bank, any Borrower under Facility
A may, by delivery of a duly completed Utilisation Request to the
Facility Agent (who shall send a copy to the Revolving Facility Banks)
elect to draw Term-out Advances under Facility A from all those
Revolving Facility Banks (but not some only) with a Facility A
Availability Period expiring on the same date (pro rata to their
Facility A Commitments) with a Final Maturity Date after the applicable
Facility A Availability Period but no later than the third Anniversary,
provided that if, following a request from NGG under Clause 5.7
(Extension of Facility A Availability Period), a Revolving Facility
Bank does not agree to extend its Facility A Availability Period, that
Borrower may not elect to draw a Term-out Advance from that Revolving
Facility Bank unless it simultaneously elects to draw Term-out Advances
from every Revolving Facility Bank. No Term-out Advance, once repaid or
prepaid, may be reborrowed. Only one Term-out Advance can be borrowed
from each Revolving Facility Bank and, upon drawdown, the undrawn
Facility A Commitment for that Revolving Facility Bank (if any) will
automatically be cancelled.
(c) No Facility A Advance, other than a Term-out Advance, may be
outstanding to a Revolving Facility Bank after expiry of the Facility A
Availability Period then applicable to that Revolving Facility Bank. No
Term-out Advance may be outstanding after the third Anniversary.
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7.2 REPAYMENT OF FACILITY B ADVANCE
(a) Each relevant Borrower will repay each Facility B Advance made to it in
full on its Maturity Date by payment to the Facility Agent for the
relevant Revolving Facility Bank or to the Swingline Agent for the
relevant Swingline Bank. As Facility B is available on a revolving
basis, amounts repaid may be reborrowed subject to the terms of this
Agreement. No Facility B Advance may be outstanding after the Final
Maturity Date.
(b) In the event that a Swingline Advance is not repaid in accordance with
the provisions of paragraph (a) above each Revolving Facility Bank will
within four Business Days of a request to that effect from the Facility
Agent, pursuant to a demand from the Swingline Agent, pay to the
Swingline Agent for the Swingline Banks an amount equal to its Agreed
Percentage of the principal of such Swingline Advance, less the amount
of its participation in such Swingline Advance, and accrued interest
(including default interest) thereon to the date of actual payment by
such Revolving Facility Bank. If this produces a negative figure for a
Bank, no amount need be paid by that Bank.
(c) Each Revolving Facility Bank which makes a payment under paragraph (b)
above will be subrogated to the rights of the Swingline Banks which
share in the payment received.
(d) If and to the extent that any Revolving Facility Bank is not able to
rely on its rights under paragraph (c) above, any Borrower whose
default has resulted in a payment being made under paragraph (b) above
will be liable to each Revolving Facility Bank which makes such a
payment for a debt equal to that payment made by that Revolving
Facility Bank.
(e) Any payment under paragraph (b) above does not reduce the obligations
in aggregate of any Obligor.
(f) Any Revolving Facility Bank which makes a claim against a Borrower
under either paragraph (c) or paragraph (d) above shall be entitled
also to claim from that Borrower, and that Borrower shall be liable to
pay to it, interest on the sum paid by it to the Swingline Agent under
paragraph (b) above, from the date on which it paid that sum until the
date on which the relevant Borrower reimburses that sum (together with
such interest), at the rate set out for Advances (other than Swingline
Advances) in Clause 9.4(a) (Default Interest).
8. PREPAYMENT AND CANCELLATION
8.1 AUTOMATIC CANCELLATION OF COMMITMENTS AND SWINGLINE COMMITMENTS
(a) The Facility A Commitment of each Revolving Facility Bank shall be
automatically cancelled on the last day of the Facility A Availability
Period then applicable to that Bank.
(b) The Facility B Commitment of each Revolving Facility Bank shall be
automatically cancelled at close of business on the last day of the
Facility B Availability Period then applicable to that Bank.
(c) The Swingline Commitment of each Swingline Bank shall be automatically
cancelled at close of business on the last day of the Facility B
Availability Period then applicable to that Swingline Bank.
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8.2 VOLUNTARY CANCELLATION
(a) NGG may, by giving not less than five Business Days' prior notice to
the Facility Agent, cancel the unutilised portion of either Facility A
or Facility B in whole or in part (but, if in part, in a minimum amount
of US$50,000,000 and an integral multiple of US$10,000,000). Any
cancellation in part of Facility A shall be applied against the
Facility A Commitment of each Revolving Facility Bank pro rata and any
cancellation in part of Facility B shall be applied against the
Facility B Commitment of each Revolving Facility Bank pro rata.
(b) NGG may, by giving not less than five Business Days' prior notice to
the Swingline Agent, cancel the unutilised portion of the Swingline
Total Commitments in whole or in part (but, if in part, in a minimum
amount of US$50,000,000 and an integral multiple of US$10,000,000). Any
cancellation in part shall be applied against the Swingline Commitment
of each Swingline Bank pro rata.
(c) NGG may not cancel any part of the Facility B Total Commitment if it
would result in the Total Swingline Commitments exceeding the Facility
B Total Commitment at that time.
8.3 PREPAYMENT OF ADVANCES
(a) Subject to Clause 25.2 (Other Indemnities), a Borrower may, by giving
not less than five Business Days' notice to the relevant Agent, prepay
at any time the Advances comprised in any Utilisation made to it under
either Facility in whole or in part (but, if in part, in a minimum
Original Dollar Amount of US$50,000,000 and an integral multiple of
US$10,000,000 (or such other amount as the relevant Borrower and the
Facility Agent, or Swingline Agent, where relevant, may agree before
the delivery of the relevant notice of prepayment).
(b) Any voluntary prepayment made under paragraph (a) above will be applied
against all the Advances comprised in the relevant Utilisation(s).
8.4 ADDITIONAL RIGHT OF PREPAYMENT AND CANCELLATION
Subject to Clause 25.2 (Other Indemnities), if any Obligor (the
"AFFECTED OBLIGOR") is required to pay any amount to a Bank under
Clause 12 (Taxes) or Clause 14 (Increased Costs), NGG may, whilst the
circumstances giving rise to the requirement continue, serve a notice
of prepayment and cancellation on that Bank through the relevant Agent.
On the date falling five Business Days after the date of service of the
notice:
(a) the affected Obligor shall prepay any Advances made to it by
that Bank (together with all other amounts payable by it to
that Bank under this Agreement); and
(b) if NGG has so elected in the notice delivered pursuant to this
Clause 8.4, that Bank's Commitment or Swingline Commitment,
where relevant, shall be cancelled in full on the date of
service of the notice.
8.5 MANDATORY PREPAYMENT AND CANCELLATION ON CHANGE OF CONTROL
If any single person, or group of persons acting in concert (as defined
in the City Code on Take-Overs and Mergers) acquires control (as
defined in Section 416 of the Income and Corporation Taxes Act 1988) of
New NG or Existing NGG (and in the latter case prior to, and save for
that resulting from, the implementation of the Scheme of Arrangement),
then the
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Facility Agent may, and shall if so directed by the Majority Banks,
within 90 days after the occurrence of such event by notice in writing
to New NG or Existing NGG, where relevant:
(a) reduce the Total Commitments and Total Swingline Commitments
to the aggregate Original Dollar Amount of all outstanding
Utilisations under those Facilities at the date of such
notice; and/or
(b) declare that:
(i) the Final Maturity Date for all Facilities shall be
brought forward to the date falling 30 days after the
date of such notice whereupon each reference in this
Agreement to the Final Maturity Date (and each such
period) shall be amended and construed accordingly;
(ii) each Borrower's obligations under Clause 7
(Repayment) in respect of Advances outstanding on the
date of such notice with Maturity Dates falling after
the Final Maturity Date (as amended) shall be due and
payable on the Final Maturity Date (as amended); and
(iii) on the Final Maturity Date (as amended) the Total
Commitments and Total Swingline Commitments shall be
cancelled and all other amounts accrued or otherwise
outstanding under this Agreement shall be due and
payable.
8.6 MANDATORY CANCELLATION AND PREPAYMENT ON TERMINATION OF NIAGARA MOHAWK
MERGER AGREEMENT
If the Niagara Mohawk Merger Agreement is terminated for any reason
prior to the Niagara Mohawk Acquisition Completion Date Facility A will
be deemed to be cancelled in full and permanently on the date of
termination of the Niagara Mohawk Merger Agreement and any Borrower
which has drawn any Advances under Facility A shall prepay any and all
such Facility A Advances within 30 days of that date.
8.7 MANDATORY PREPAYMENT AND CANCELLATION FOR SUBSIDIARY FINANCIAL
INDEBTEDNESS
If, at any time after the date falling six months after the Niagara
Mohawk Acquisition Completion Date the level of Financial Indebtedness
to which paragraph (a)(iii) of Clause 19.15 (Restriction on Subsidiary
Financial Indebtedness) applies incurred by any Subsidiaries to which
sub-paragraph (ii) of that Clause applies, exceeds the Financial
Indebtedness Limit applicable from time to time to those Subsidiaries
then the Facility Agent may, and will if so directed by the Majority
Banks, by notice in writing to NGG:
(a) permanently cancel and reduce the Total Commitments by an
amount equal to the amount by which the Financial Indebtedness
of those Subsidiaries exceeds the then applicable Financial
Indebtedness Limit; and
(b) to the extent necessary to ensure that outstandings do not
exceed the relevant Commitments as so reduced, require the
relevant Borrower to prepay Advances made under Facility A
within 90 days of the date of that notice.
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8.8 MISCELLANEOUS PROVISIONS
(a) Any notice of cancellation and/or prepayment under this Agreement shall
be irrevocable and an Agent shall notify the Banks promptly of receipt
of any such notice.
(b) All prepayments under this Agreement shall be made together with
accrued interest up to and including the date of prepayment on the
amount prepaid and any other amounts due under this Agreement in
respect of that prepayment (including, but not limited to, any amounts
payable under Clause 25.2 (Other Indemnities) if not made on an
Interest Date or Maturity Date (as appropriate) in respect of the
relevant Advance(s).
(c) No cancellation or prepayment is permitted except in accordance with
the express terms of this Agreement.
(d) Amounts prepaid under this Agreement in respect of Term-out Advances
may not subsequently be re-borrowed. Subject thereto and to the terms
of this Agreement, any amount prepaid under Clause 8.3 (Prepayment of
Advances) but not under any other provision of this Agreement may be
reborrowed under any other provision of this Agreement. Any Commitment
or Swingline Commitment cancelled may not subsequently be reinstated.
9. INTEREST
9.1 SELECTION OF INTEREST PERIODS FOR TERM-OUT ADVANCES
The life of each Term-out Advance is divided into successive periods
(each an "INTEREST PERIOD") for the calculation of interest. The first
Interest Period of each such Advance will be the period selected in the
Utilisation Request for that Advance. Each subsequent Interest Period
will be the period selected by the relevant Borrower in an Interest
Period Selection Notice received by the Facility Agent not later than
4.30 p.m. on the third Business Day before the end of the then current
Interest Period being, subject to Clause 2.5 (Primary Syndication
Period), 1, 2, 3, or 6 months or, in any case, such other period as the
relevant Borrower and all the Revolving Facility Banks may agree from
time to time or, if no notice from the relevant Borrower (or NGG) is
received by the Facility Agent, one month.
9.2 INTEREST RATES
(a) The rate of interest applicable to each Term-out Advance for each of
their Interest Periods and to each Facility A Advance (other than a
Term-out Advance) and Facility B Advance (other than a Swingline
Advance) for each of their Terms is the rate per annum determined by
the Facility Agent to be the aggregate of:
(i) the Applicable Margin;
(ii) LIBOR (or EURIBOR in the case of Advances made in Euros); and
(iii) the Mandatory Costs.
(b) The rate of interest applicable to each Swingline Advance for its Term
is the rate per annum calculated by the Swingline Agent to be the
Swingline Rate for each day during its Term save that, if any day
during a Term is not a New York Business Day, the rate of interest on
that day shall be the rate applicable on the immediately preceding New
York Business Day.
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9.3 DUE DATES
Except as otherwise provided in this Agreement, accrued interest on
each Advance is payable by the relevant Borrower:
(a) in the case of a Term-out Advance, on each Interest Date
applicable to that Advance; and
(b) in the case of an Advance (other than a Term-out Advance) on
its Maturity Date,
and also, in the case of an Advance with an Interest Period or a Term
longer than 6 months, at 6 monthly intervals after its Utilisation Date
(or the start of the relevant Interest Period or Term) for so long as
the Interest Period or Term is outstanding.
9.4 DEFAULT INTEREST
(a) If an Obligor fails to pay any amount payable by it under this
Agreement (an "OVERDUE AMOUNT"), it shall forthwith on demand by an
Agent pay default interest on the overdue amount from the due date
until the date of actual payment, as well after as before judgment, at
a rate (the "DEFAULT RATE") determined by that Agent to be 1 per cent.
per annum above
(i) if the overdue amount relates to a Swingline Advance, the
Swingline Rate; or
(ii) in all other cases, the rate which would have been payable if
the overdue amount had, during the period of non-payment,
constituted an Advance (other than a Swingline Advance)
in the currency of the overdue amount for such successive Interest
Periods or Terms of such duration as that Agent may determine (each a
"DEFAULT TERM").
(b) The default rate will be determined:
(i) if calculated by reference to the Swingline Rate, on each day;
or
(ii) on the first day of, or two Business Days before the first day
of, the relevant Default Term, as appropriate.
(c) If an Agent determines that deposits in the currency of the overdue
amount are not at the relevant time being made available by the
Reference Banks to leading banks in the London interbank market, the
default rate will be determined by reference to the cost of funds to
that Agent from such sources as it reasonably may select.
(d) Default interest will be compounded monthly (if calculated by reference
to the Swingline Rate) or at the end of each Default Term (if
calculated by reference to the rate which would have been payable if
the overdue amount had, during the period of non-payment, constituted
an Advance (other than a Swingline Advance)).
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9.5 NOTIFICATION OF RATES OF INTEREST
(a) The Facility Agent shall promptly notify each relevant Party of the
determination by it of a rate of interest under this Agreement.
(b) The Swingline Agent shall notify each relevant Party of the
determination of a rate of interest by it on a Swingline Advance on the
first and last days of its Term. In the notification on the last day of
that Term, the Swingline Agent shall include details of the applicable
rate of interest for each day of that Term.
9.6 APPLICABLE MARGIN
(a) The Applicable Margin for a Facility A Advance will be 0.375 per cent.
per annum, unless adjusted in accordance with this Clause 9.6.
(b) The Applicable Margin for a Facility B Advance (other than a Swingline
Advance) will be 0.425 per cent. per annum, unless adjusted in
accordance with this Clause 9.6.
(c) If at close of business on the first day of an Interest Period or Term
the uncancelled Total Commitments fall within the thresholds in Column
1 of the table below, then the Applicable Margins for each relevant
Facility will be those listed in Columns 2 and 3.
COLUMN 1 COLUMN 2 COLUMN 3
UNCANCELLED TOTAL FACILITY A FACILITY B (OTHER
COMMITMENTS THAN THE SWINGLINE
ADVANCE FACILITY)
APPLICABLE MARGIN APPLICABLE MARGIN
Less than or equal to 0.375 per cent. 0.425 per cent.
US$2,300,000,000 (but greater than
US$1,500,000,000)
Less than or equal to 0.375 per cent. 0.40 per cent.
US$1,500,000,000 (but more than
US$750,000,000)
Less than or equal to US$750,000,000 0.35 per cent. 0.375 per cent.
(d) In addition to the provisions of (c) above, if at close of business on
the first day of an Interest Period or Term the aggregate Original
Dollar Amount of all Advances under the Facilities exceeds 50 per cent.
of the uncancelled Total Commitments, the Applicable Margin for that
Interest Period or Term shall be increased by 0.05 per cent. per annum.
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10. OPTIONAL CURRENCIES
10.1 SELECTION
(a) A Borrower shall select the currency of an Advance (other than a
Swingline Advance):
(i) (in the case of a Revolving Facility Advance) in a Utilisation
Request; and
(ii) (in relation to a Term-out Advance) in an Interest Period
Selection Notice.
(b) No Borrower may request an Advance denominated in an Optional Currency
(other than Sterling or Euros) unless the Facility Agent has confirmed
to the Borrower that the Optional Currency is readily available and
freely transferable in the London foreign exchange market.
(c) If a Borrower fails to issue an Interest Period Selection Notice in
relation to a Term-out Advance, that Advance will remain denominated
for its next Interest Period in the same currency in which it is then
outstanding.
(d) If a Borrower issues an Interest Period Selection Notice in relation to
a Term-out Advance requesting a change of currency and the first day of
the requested Interest Period is not a Business Day for the new
currency, the Facility Agent shall promptly notify the relevant
Borrower and the Revolving Facility Banks and that Advance will remain
in the existing currency (with Interest Periods running from one
Business Day until the next Business Day) until the next day which is a
Business Day for both currencies, on which day the requested Interest
Period will begin.
10.2 NON-AVAILABILITY OF CURRENCY
If:
(a) before 9.00 a.m. on any Rate Fixing Day for any Advance to be
denominated in an Optional Currency, the Facility Agent
receives notice from a Revolving Facility Bank that it is
impracticable for that Revolving Facility Bank to fund its
required Advance in that Optional Currency for its requested
Term or Interest Period in the ordinary course of business in
the relevant interbank market; or
(b) the use of the proposed Optional Currency would or might
contravene any law or regulation,
then:
(i) the Facility Agent shall promptly (and in any event before
10.00 a.m. on that Rate Fixing Day) notify the relevant
Borrower and the Revolving Facility Banks; and
(ii) unless NGG and the Facility Agent otherwise agree, the Advance
requested from the Revolving Facility Bank referred to in (a)
above will be denominated instead in Dollars, in an amount
equal to the Original Dollar Amount of the requested Advance
in the Optional Currency.
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10.3 CHANGE OF CURRENCY
(a) If a Term-out Advance is to be denominated in different currencies
during two successive Interest Periods:
(i) if the currency for the second Interest Period is an Optional
Currency the amount of the Advance in that Optional Currency
will be calculated by the Facility Agent as the Original
Dollar Amount of that Term-out Advance;
(ii) if the currency for the second Interest Period is Dollars, the
amount of the Advance will be equal to the Original Dollar
Amount;
(iii) (unless the Facility Agent and the relevant Borrower agree
otherwise in accordance with paragraph (b) below) the Borrower
that has borrowed the Advance shall repay it on the last day
of the first Interest Period in the currency in which it was
denominated for that Interest Period; and
(iv) (subject to Clause 4.2 (Further conditions precedent) the
Revolving Facility Banks shall re-advance the Advance in the
new currency in accordance with Clause 10.5(d) and (e), below.
(b) If the Facility Agent and the Borrower that has borrowed the Term-out
Advance agree, the Facility Agent shall:
(i) apply the amount paid to it by the Revolving Facility Banks
pursuant to paragraph (a)(iv) above (or so much of that amount
as is necessary) in or towards purchase of an amount in the
currency in which the Term-out Advance is outstanding for the
first Interest Period; and
(ii) use the amount it purchases in or towards the satisfaction of
the relevant Borrower's obligations under paragraph (a)(iii)
above.
(c) If the amount purchased by the Facility Agent pursuant to paragraph
(b)(i) above is less than the amount required to be repaid by the
relevant Borrower, the Facility Agent shall promptly notify that
Borrower and that Borrower shall, on the last day of the first Interest
Period, pay an amount to the Facility Agent (in the currency of the
outstanding Term-out Advance for the first Interest Period) equal to
the difference.
(d) If any part of the amount paid to the Facility Agent by the Revolving
Facility Banks pursuant to paragraph (a)(iv) above is not needed to
purchase the amount required to be repaid by the relevant Borrower, the
Facility Agent shall promptly notify that Borrower and pay that
Borrower, on the last day of the first Interest Period, that part of
that amount (in the new currency).
10.4. SAME OPTIONAL CURRENCY DURING SUCCESSIVE INTEREST PERIODS
(a) If a Term-out Advance is to be denominated in the same Optional
Currency during two successive Interest Periods, the Facility Agent
shall calculate the amount of the Term-out Advance in the Optional
Currency for the second of those Interest Periods (by calculating the
amount of Optional Currency equal to the Original Dollar Amount of that
Term-out Advance) and (subject to paragraph (b) below):
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(i) if the amount calculated is less than the existing amount of
that Term-out Advance in the Optional Currency during the
first Interest Period, promptly notify the Borrower that has
borrowed that Term-out Advance and that Borrower shall pay, on
the last day of the first Interest Period, an amount equal to
the difference; or
(ii) if the amount calculated is more than the existing amount of
that Term-out Advance in the Optional Currency during the
first Interest Period, promptly notify each Revolving Facility
Bank which participated in the Advance and, if no Event of
Default is continuing, each such Revolving Facility Bank
shall, on the last day of the first Interest Period, pay its
participation in amount equal to the difference.
(b) If the calculation made by the Facility Agent pursuant to paragraph (a)
above shows that the amount of the Term-out Advance in the Optional
Currency has increased or decreased by less than the lower of
US$40,000,000 and 5 per cent. compared to its Original Dollar Amount,
no notification shall be made by the Facility Agent and no payment
shall be required under paragraph (a) above.
10.5 NOTIFICATION OF RATES AND AMOUNTS
(a) If an Advance is to be drawn down in an Optional Currency, the amount
thereof shall be determined by converting the Original Dollar Amount
thereof into that Optional Currency on the basis of the Facility
Agent's Spot Rate of Exchange on the date of receipt by the Facility
Agent of the Utilisation Request for that Advance.
(b) If any Advance (save for any Term-out Advance) is to be repaid or
prepaid by reference to an Original Dollar Amount, the amount of
Optional Currency to be repaid or prepaid shall be determined by
reference to the Facility Agent's Spot Rate of Exchange last used for
determining the Optional Currency amount of that Advance under
paragraph (a) above.
(c) If any Term-out Advance is to be repaid or prepaid by reference to an
Original Dollar Amount, the amount of Optional Currency to be repaid or
prepaid shall be determined by reference to the Facility Agent's Spot
Rate of Exchange used for determining the Optional Currency amount of
that Term-out Advance when first drawn down or, if applicable, by
reference to the Facility Agent's Spot Rate of Exchange by reference to
which the most recent adjusted payment has been made under Clause
10.4(a) (Same Optional Currency during successive Interest Periods) in
respect of that Term-out Advance.
(d) The Facility Agent shall notify each relevant Party of any applicable
Facility Agent's Spot Rate of Exchange or Original Dollar Amount, as
applicable, promptly after it has ascertained the same.
(e) All calculations made by the Facility Agent pursuant to this Clause 10
will take into account any repayment, prepayment, consolidation or
division of Term-out Advances to be made on the last day of the first
Interest Period.
(f) Each Bank's participation in a Term-out Advance will, subject to
paragraph (a) above, be determined in accordance with paragraph (b) of
Clause 7.1 (Repayment of Facility A Advances).
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11. PAYMENTS
11.1 PLACE
Except where expressly provided to the contrary, all payments by an
Obligor or a Bank under this Agreement shall be made to the relevant
Agent to its account at such office or bank in the principal financial
centre of the country of the relevant currency (or, in the case of
Euros, the principal financial centre of a Participating Member State
or London) as it may notify to that Obligor or Bank for this purpose.
11.2 FUNDS
Payments under this Agreement to an Agent shall be made for value on
the due date at such times and in such funds as that Agent may specify
to the Party concerned as being customary at the time for the
settlement of transactions in the relevant currency in the place for
payment.
11.3 DISTRIBUTION
(a) Each payment received by an Agent under this Agreement for another
Party shall, subject to paragraphs (b) and (c) below, be made available
by that Agent to that Party by payment (on the date and in the currency
and funds of receipt) to its account with such bank in the principal
financial centre of the country of the relevant currency (or, in the
case of Euros, the principal financial centre of a Participating Member
State or London) as it may notify to that Agent for this purpose by not
less than 5 Business Days' prior notice or, in the case of a Borrower,
in the relevant Utilisation Request.
(b) An Agent may apply any amount received by it for an Obligor in or
towards payment (on the date and in the currency and funds of receipt)
of any amount due from an Obligor under this Agreement or in or towards
the purchase of any amount of any currency to be so applied.
(c) Where a sum is to be paid under this Agreement to an Agent for the
account of another Party, that Agent is not obliged to pay that sum to
that Party until it has established that it has actually received that
sum. Unless an Agent receives not less than one Business Day's written
notice that a sum to be paid under this Agreement will not be paid, it
may assume that the sum has been paid to it in accordance with this
Agreement and, in reliance on that assumption, make available to that
Party a corresponding amount. If the sum has not been made available,
but an Agent has paid a corresponding amount to another Party, that
Party shall forthwith on demand refund the corresponding amount to that
Agent together with interest on that amount from the date of payment to
the date of receipt, calculated at a rate determined by that Agent to
reflect its cost of funds.
(d) If on any Utilisation Date:
(i) a Revolving Facility Bank is required to participate in an
Advance pursuant to Clause 5 (Availability of Revolving
Facility Advances and Term-out Advances); and
(ii) a payment is due to that Revolving Facility Bank pursuant to
Clause 8 (Repayment),
then the Facility Agent shall (without prejudice to the obligations of
the relevant Borrower under Clause 7 (Repayment)) apply the amount
payable by such Revolving Facility Bank to the Facility Agent for the
account of the relevant Borrower on that Utilisation Date in or towards
satisfaction of the amount payable by the relevant Borrower to such
Bank on such
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Utilisation Date pursuant to Clause 7 (Repayment). The Facility Agent
shall advise NGG, the relevant Borrower and each such Revolving
Facility Bank of the net amount, if any, due from one party to the
other after the application of funds as aforesaid and such net amount
due shall be paid by the relevant Borrower or the relevant Revolving
Facility Bank(s), as the case may be, on such date.
11.4 CURRENCY
(a) (i) A repayment or prepayment of an Advance is payable in the
currency in which the Advance is denominated.
(ii) Interest is payable in the currency in which the relevant
amount in respect of which it is payable is denominated.
(iii) Amounts payable in respect of costs, expenses, taxes and the
like are payable in the currency in which they are incurred.
(iv) Any other amount payable under this Agreement is, except as
otherwise provided in this Agreement, payable in Sterling.
(v) Any amount payable under this Agreement in the currency of a
Participating Member State will be paid in Euros.
(b) If a change in any currency of a country occurs in a manner different
to that expressly contemplated in this Agreement, this Agreement will
be amended to the extent the Agents and NGG agree (such agreement not
to be unreasonably withheld) to be necessary to reflect the change in
currency and to put the Banks and the Obligors in the same position, as
far as possible, that they would have been in if no change in currency
had occurred.
11.5 SET-OFF AND COUNTERCLAIM
All payments made by an Obligor under this Agreement shall be made
without set-off or counterclaim.
11.6 NON-BUSINESS DAYS
(a) If a payment under this Agreement is due on a day which is not a
Business Day, the due date for that payment shall instead be the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on the principal at the rate payable
on the original due date.
11.7 PARTIAL PAYMENTS
(a) If an Agent receives a payment insufficient to discharge all the
amounts then due and payable by the Obligors under the Finance
Documents that Agent shall apply that payment towards the obligations
of the Obligors under the Finance Documents in the following order:
(i) FIRST, in or towards payment pro rata of any unpaid costs,
fees and expenses of the relevant Agent or the Agents under
this Agreement;
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(ii) SECONDLY, in or towards payment pro rata of any accrued fees
due but unpaid under Clauses 22.1 (Front-end fees), 22.2
(Commitment fee), and 22.3 (Term-out Fee and Facility A
Availability Extension Fee);
(iii) THIRDLY, in or towards payment pro rata of any accrued
interest due but unpaid under this Agreement;
(iv) FOURTHLY, in or towards payment pro rata of any principal due
but unpaid under this Agreement; and
(v) FIFTHLY, in or towards payment pro rata of any other sum due
but unpaid under this Agreement.
(b) The Agents shall, if so directed by all the Banks, vary the order set
out in paragraphs (a)(ii) to (v) inclusive above.
(c) Paragraphs (a) and (b) above shall override any appropriation made by
an Obligor.
12. TAXES
12.1 GROSS-UP
(a) For the purposes of this Clause 12, "TAX" and "TAXES" in relation to
any payment to be made by an Obligor under the Finance Documents means
any present or future taxes of any nature now or subsequently imposed
by the laws of:
(i) the United Kingdom;
(ii) any other jurisdiction from which, or through which, such
payment is made or to the taxation laws of which the relevant
Obligor is at the time of such payment subject;
(iii) any political sub-division of the United Kingdom or any such
other jurisdiction; or
(iv) any federation or association of states of which the United
Kingdom or any such other jurisdiction is, at the time of such
payment, a member.
(b) All payments by an Obligor under the Finance Documents to a Finance
Party shall be made without any deduction, and free and clear of and
without deduction or withholding for or on account of any taxes, except
to the extent that the Obligor is required by law to deduct or withhold
taxes from any amounts payable or paid or to make payment subject to
any taxes. If any tax or amounts in respect of tax must be deducted, or
any other deductions must be made, from any amounts payable or paid by
an Obligor, or paid or payable by an Agent to a Bank, under the Finance
Documents, the Obligor shall pay such additional amounts as may be
necessary to ensure that the relevant Bank receives a net amount equal
to the full amount which it would have received had payment not been
made subject to tax or other deduction.
12.2 TAX RECEIPTS
All taxes required by law to be deducted or withheld by an Obligor from
any amounts paid or payable under the Finance Documents shall be paid
by the relevant Obligor when due (unless the obligation to pay any such
tax is being disputed in good faith) and the Obligor shall,
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within 15 days of the payment being made, deliver to the relevant Agent
for the relevant Bank evidence satisfactory to that Bank (including all
relevant tax receipts) that the payment has been duly remitted to the
appropriate authority.
12.3 QUALIFYING BANK
(a) In respect of amounts payable by an Obligor, if otherwise than as a
result of the introduction of, change in, or change in the
interpretation, administration or application of, any law or regulation
or any practice or concession of the United Kingdom Inland Revenue
occurring after the date of this Agreement, a Bank is not or ceases to
be a Qualifying Bank, no Obligor is liable to pay to that Bank under
Clause 12.1 (Gross-up) any amount in respect of taxes levied or imposed
by the United Kingdom or any taxing authority of or in the United
Kingdom in excess of the amount it would have been obliged to pay if
that Bank was or had not ceased to be a Qualifying Bank.
(b) If for whatever reason a Bank ceases to be a Qualifying Bank it shall
immediately notify the relevant Agent and NGG in writing.
(c) Each Bank undertakes, as soon as reasonably practicable after the
Signing Date or, as applicable, the date upon which it becomes a Party
to this Agreement, where requested in writing by an Obligor to do so,
to complete and file, or to provide such information as NGG reasonably
requests in order to complete and file, any declaration, claim,
exemption or other form, which it is able to complete and file or, in
the case of information, to provide, as may be required to ensure that
an Obligor is not required to pay any additional amount pursuant to
paragraph (b) of Clause 12.1 (Gross-up).
12.4 TAX CREDITS
(a) If an Obligor pays any additional amount (a "Tax Payment") under Clause
12.1 (Gross-up) and a Bank effectively obtains a refund of tax, or
relief or credit against tax, by reason of that Tax Payment (a "Tax
Credit") and is able to identify the Tax Credit as being attributable
to the Tax Payment, then it shall reimburse to the relevant Obligor
such amount as the Bank reasonably determines (in its absolute
discretion) to be the proportion of the Tax Credit as will leave it,
after that reimbursement, in no better or worse position than it would
have been in if the Tax Payment had not been required. Each Bank shall
have an absolute discretion as to whether to claim any Tax Credit and,
if it does so claim, the extent, order and manner in which it does so.
No Bank shall be obliged to disclose any information regarding its tax
affairs or computations to any Obligor in respect of any provision of
this Agreement or otherwise.
(b) If any Bank makes any payment to an Obligor pursuant to paragraph (a)
above and that Bank subsequently determines that the credit, relief,
remission or repayment in respect of which such payment was made was
not available to it or has been withdrawn from it or that it was unable
to use such credit, relief, remission or repayment in full, the Obligor
shall reimburse that Bank to the extent (but not exceeding the relevant
payment by that Bank under paragraph (a) above) that it determines to
have been required to place it in the same after-tax position as it
would have been in if such credit, relief, remission or repayment had
been obtained and fully used and retained by that Bank.
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12.5 U.S. TAXES
(a) No U.S. Borrower shall be required to pay any additional amount
pursuant to Clause 12.1 (Gross-up) in respect of United States taxes
(including, without limitation, federal, state, local or other income
taxes), branch profits or franchise taxes with respect to a sum payable
by it pursuant to this Agreement to a Finance Party if:
(i) on the date such Bank becomes a Party to this Agreement or has
designated a new Facility Office:
(1) in the case of a Bank which is not a United States
person (as such term is defined in Section
7701(a)(30) of the U.S. Code), such Bank is not
entitled to submit a United States Internal Revenue
Service Form W-8BEN (relating to such Bank and
entitling it to a complete exemption from withholding
on all interest payable to it pursuant to this
Agreement) or a Form W-8ECI (relating to interest
payable to such Bank pursuant to this Agreement) (or
any successor forms) with respect to interest payable
pursuant to this Agreement; or
(2) in the case of a Bank which is a United States person
(as such term is defined in Section 7701(a)(30) of
the U.S. Code), Clause 12.1 (Gross-up) would apply
(other than as a result of the introduction of,
suspension, withdrawal or cancellation of, or change
in the official interpretation, administration or
official application of, any law, regulation having
the force of law, tax treaty or any published
practice or published concession of the United States
Internal Revenue Service or any other relevant taxing
or fiscal authority in any jurisdiction with which
the relevant Bank has a connection, occurring after
the date the Bank becomes a Party to this Agreement
or has designated a new Facility Office); or
(ii) such Bank has failed to provide the Borrower with the
appropriate form, certificate or other information with
respect to such sum payable that it was required to provide
pursuant to paragraph (b) or (c) below and is entitled to file
under applicable law; or
(iii) such Bank is subject to such tax by reason of any connection
between the jurisdiction imposing such tax and the Bank or its
Facility Office other than a connection arising solely from
this Agreement or any transaction contemplated hereby.
(b) If a Bank is not a United States person (as such term is defined in
Section 7701(a)(30) of the U.S. Code) it shall (if and to the extent
that it is entitled to do so under applicable law) submit, as soon as
reasonably practicable after a U.S. Borrower becomes a Party to this
Agreement or designated a new Facility Office, in duplicate to each
U.S. Borrower duly completed and signed copies of either United States
Internal Revenue Service Form W-8BEN (or, such successor forms as shall
be adopted from time to time by the relevant United States taxing
authorities) (relating to such Bank and entitling it to a complete
exemption from withholding on all amounts (to which such withholding
would otherwise apply) to be received by such Bank, including fees,
pursuant to this Agreement in connection with any borrowing by such
U.S. Borrower) as a result of a tax treaty concluded with the United
States or United States Internal Revenue Service Form W-8ECI (relating
to all amounts (to which such withholding would otherwise apply) to be
received by such Bank, including fees, pursuant to this Agreement in
connection with any borrowing by such U.S. Borrower).
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Thereafter and from time to time upon the reasonable request of a U.S.
Borrower, such Bank shall (if and to the extent that it is entitled to
do so under applicable law) submit to such U.S. Borrower such
additional duly completed and signed copies of such forms (or such
successor forms as shall be adopted from time to time by the relevant
United States taxation authorities) or any additional information, in
each case as may be required under then current United States law or
regulations to claim the inapplicability of or exemption from United
States withholding taxes on payments in respect of all amounts (to
which such withholding would otherwise apply) to be received by such
Bank, including fees, pursuant to this Agreement in connection with any
borrowing by such U.S. Borrower.
(c) If a Bank is a United States person (as such term is defined in Section
7701(a)(30) of the U.S. Code) it shall, as soon as reasonably
practicable after a U.S. Borrower becomes a Party to this Agreement or
designates a new Facility Office, and thereafter upon the reasonable
request of a U.S. Borrower, submit in duplicate to such U.S. Borrower a
certificate to the effect that it is such a United States person and
shall (if and to the extent that it is entitled to do so under
applicable law) upon the reasonable request of a U.S. Borrower submit
any additional information that may be necessary to avoid United States
withholding taxes on all payments, including fees, (to which such
withholding would otherwise apply) to be received pursuant to this
Agreement in connection with any borrowing by such U.S. Borrower.
13. MARKET DISRUPTION
(a) If LIBOR or EURIBOR is to be determined by reference to Reference Banks
but a Reference Bank does not supply an offered rate by 12 noon on a
Rate Fixing Day, the applicable LIBOR or EURIBOR, where relevant,
shall, subject to paragraph (b) below, be determined on the basis of
the quotations of the remaining Reference Banks.
(b) If, in relation to any proposed Utilisation (save for Utilisations
comprising Swingline Advances):
(i) LIBOR or EURIBOR are to be determined by reference to
Reference Banks but no, or only one, Reference Bank supplies a
rate for the purposes of determining the applicable LIBOR or
EURIBOR or the Facility Agent otherwise determines that
adequate and fair means do not exist for ascertaining the
applicable LIBOR or EURIBOR; or
(ii) the Facility Agent receives notification from Revolving
Facility Banks participating in more than 50 per cent. in
value of the proposed Revolving Facility Advances that, in
their opinion:
(A) matching deposits may not be available to them in the
London interbank market in the ordinary course of
business to fund their Revolving Facility Advances
for the relevant Interest Period or Term; or
(B) the cost to them of matching deposits in the London
interbank market would be in excess of LIBOR or
EURIBOR, where relevant, for the relevant Interest
Period or Term,
then the Facility Agent shall promptly notify NGG, any other relevant
Borrower and the relevant Revolving Facility Banks of the fact and that
this Clause 13.1 is in operation.
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(c) After any notification under paragraph (b) above:
(i) the relevant Borrower and the Revolving Facility Banks may
(through the Facility Agent) agree that the relevant Advances
comprised in the Utilisation shall not be made; or
(ii) in the absence of such agreement:
(A) the relevant Advances shall still be made;
(B) the Interest Period or Term of each relevant Advance
shall be one week during the Primary Syndication
Period and thereafter one month;
(C) during the Interest Period or Term of each relevant
Advance the rate of interest applicable to that
Advance shall be the Applicable Margin plus the
applicable Mandatory Costs plus the rate per annum
notified by the relevant Revolving Facility Bank to
the Facility Agent before the last day of that
Interest Period or Term to be that which expresses as
a percentage rate per annum the cost to the Revolving
Facility Bank of funding its relevant Advance from
whatever sources it may reasonably select;
(D) during the relevant Interest Period or Term of each
relevant Advance, NGG, any other relevant Borrower
and the Facility Agent shall enter into negotiations
for a period of not more than 30 days with a view to
agreeing a substitute basis for determining the rate
of interest and/or funding applicable to any such
future Advances to be denominated in the currency of
the affected Advances for the duration agreed at the
time of determining the substitute basis; and
(E) any substitute basis agreed under paragraph (D) above
shall be, with the prior consent of all the Revolving
Facility Banks, binding on all the Parties.
14. INCREASED COSTS
14.1 INCREASED COSTS
(a) Subject to Clause 14.2 (Exceptions), NGG shall forthwith on demand by a
Finance Party pay that Finance Party the amount of any increased cost
incurred by it as a result of:
(i) the introduction of, or any change in, or any change in the
interpretation or application of, any law or regulation after
the date of this Agreement;
(ii) compliance with any regulation made after the date of this
Agreement,
(including any law or regulation relating to taxation or reserve asset,
special deposit, cash ratio, liquidity or capital adequacy requirements
or any other form of banking or monetary control).
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(b) In this Agreement, "INCREASED COST" means:
(i) an additional cost incurred by a Finance Party or its
Regulated Holding Company as a result of that Finance Party
having entered into, or performing, maintaining or funding its
obligations under, any Finance Document; or
(ii) that portion of an additional cost incurred by a Finance Party
or its Regulated Holding Company in making, funding or
maintaining all or any advances comprised in a class of
advances formed by or including the Advances made or to be
made by it under this Agreement as is attributable to it
making, funding or maintaining its Advances; or
(iii) a reduction in any amount payable to a Finance Party or its
Regulated Holding Company or the effective return to a Finance
Party under this Agreement or on its capital; or
(iv) the amount of any payment made by a Finance Party or its
Regulated Holding Company, or the amount of interest or other
return foregone by a Finance Party or its Regulated Holding
Company, calculated by reference to any amount received or
receivable by a Finance Party or any of its Regulated Holding
Company from any other Party under this Agreement.
14.2 EXCEPTIONS
Clause 14.1 (Increased costs) does not apply to any increased cost:
(a) compensated for by the payment of the Mandatory Costs; or
(b) compensated for by the operation of Clause 12 (Taxes); or
(c) attributable to any change in the rate of tax on the overall
net income of a Finance Party or its Regulated Holding Company
(or the overall net income of a division or branch of the
Finance Party on its Regulated Holding Company) imposed in the
jurisdiction in which its principal office or Facility Office
is situated; or
(d) incurred as a consequence of the implementation in whole or in
part of the International Convergence of Capital Measurement
and Capital Standards dated July 1988 and published by The
Basle Committee on Banking Regulations and Supervisory
Practices in the United Kingdom by notices issued by the Bank
of England on or before the date of this Agreement; or
(e) attributable to any implementation by any authority having
jurisdiction over any of the Revolving Facility Banks of the
proposals contained in the matters set out in the EC Directive
93/6/EEC of 15th March, 1993, on the capital adequacy of
investment firms and credit institutions.
15. MITIGATION
If any circumstances arise in relation to any Bank which would, or
would upon the giving of notice, result in:
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(a) a demand for payment pursuant to Clause 14.1 (Increased costs)
or the provisions of Clause 13 (Market Disruption) applying;
(b) a cancellation of its Commitment or Swingline Commitment,
where relevant, pursuant to paragraph (b)(ii) of Clause 16
(Illegality); or
(c) an increase in the amount of any payment to be made to it or
for its account pursuant to Clause 12.1 (Gross-up),
then, without in any way limiting, reducing or otherwise qualifying any
relevant Obligor's obligations under any of the provisions referred to
in paragraphs (a) to (c) above, the Bank will promptly upon becoming
aware of the same notify the relevant Agent thereof and, in
consultation with that Agent, NGG and any other relevant Obligor, use
reasonable endeavours to transfer its participation in the Facilities
and its rights and obligations under this Agreement to another
financial institution or Facility Office acceptable to that Agent, NGG
and any other relevant Obligor and willing to participate as a Bank
under this Agreement and otherwise take such steps as it considers
reasonably open to it for a period not exceeding 30 days to mitigate
the effects of those circumstances, unless, in the reasonable opinion
of that Bank, such steps might have a material adverse effect upon the
tax position, business, operations or financial condition, or be
contrary to the banking policy, of that Bank. Nothing in this provision
shall require a Bank to disclose any information as to its banking
policy or any other matters which it regards as confidential or
commercially sensitive.
16. ILLEGALITY
If it is or becomes unlawful in any jurisdiction for a Bank to give
effect to any of its obligations as contemplated by this Agreement or
to fund or maintain any Advance, then:
(a) the Bank may notify NGG (through the relevant Agent)
accordingly; and
(b) (i) each Borrower shall forthwith prepay or repay any
Advances made to it by that Bank together with all
other amounts payable by it to that Bank under this
Agreement on or before the last day permitted by the
relevant law being, if possible, the Maturity Date
for any Facility A Advance (other than a Term-out
Advance) or Facility B Advance or the next Interest
Date for a Term-out Advance;
(ii) that Bank's Commitment or Swingline Commitment (or
both of them, where the Bank is both a Revolving
Facility Bank and a Swingline Bank) shall be
cancelled in full with effect from the date of the
notification made under paragraph (a) above.
17. GUARANTEE
17.1 GUARANTEE
The Guarantor irrevocably and unconditionally:
(i) as principal obligor, guarantees to each Finance Party prompt
performance by each Borrower (other than itself) (each such
Borrower, a "GUARANTEED PARTY") of all its respective
obligations under the Finance Documents;
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(ii) undertakes with each Finance Party that whenever a guaranteed
party does not pay an amount when due under or in connection
with any Finance Document, it shall forthwith on demand by the
relevant Agent pay that amount as if it instead of the
relevant guaranteed party were expressed to be the principal
obligor; and
(iii) indemnifies each Finance Party on demand against any loss or
liability suffered by it if any obligation guaranteed by it is
or becomes unenforceable, invalid or illegal.
17.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the
ultimate balance of all sums payable by each guaranteed party under the
Finance Documents, regardless of any intermediate payment or discharge
in whole or in part.
17.3 REINSTATEMENT
(a) Where any discharge (whether in respect of the obligations of any
guaranteed party or any security for those obligations or otherwise) is
made in whole or in part or any arrangement is made on the faith of any
payment, security or other disposition which is avoided or must be
restored on insolvency, liquidation or otherwise without limitation,
the liability of the Guarantor under this Clause 17 shall continue as
if the discharge or arrangement had not occurred.
(b) An Agent may, on behalf of each other Finance Party, concede or
compromise any claim that any payment, security or other disposition is
liable to avoidance or restoration.
17.4 WAIVER OF DEFENCES
The obligations of the Guarantor under this Clause 17 will not be
affected by any act, omission, matter or thing which, but for this
provision, would reduce, release or prejudice any of its obligations
under this Clause 17 or prejudice or diminish those obligations in
whole or in part, including (whether or not known to it or any Finance
Party):
(a) any time or waiver granted to, or composition with, any
Obligor or other person;
(b) 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;
(c) any incapacity or lack of powers, authority or legal
personality of or dissolution or change in the members or
status of an Obligor or any other person;
(d) any variation (however fundamental) or replacement of a
Finance Document or any other document or security so that
references to that Finance Document in this Clause 17 shall
include each variation or replacement;
(e) any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document or any
other document or security, to the intent that the
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Guarantor's obligations under this Clause 17 shall remain in
full force and its guarantee be construed accordingly, as if
there were no unenforceability, illegality or invalidity; or
(f) any postponement, discharge, reduction, non-provability or
other similar circumstance affecting any obligation of any
Obligor under a Finance Document resulting from any
insolvency, liquidation or dissolution proceedings or from any
law, regulation or order so that each such obligation shall
for the purposes of the Guarantor's obligations under this
Clause 17 shall be construed as if there were no such
circumstance.
17.5 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 it under this Clause 17.
17.6 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:
(a) 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
(b) hold in a suspense account (bearing interest at a normal
commercial rate as determined by the relevant Agent) any
moneys received from the Guarantor or on account of the
Guarantor's liability under this Clause 17.
17.7 NON-COMPETITION
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, the Guarantor shall not, after a claim has been made under
this Clause 17 or by virtue of any payment or performance by it under
this Clause 17:
(a) be subrogated to any rights, security or moneys held, received
or receivable by any Finance Party (or any trustee or agent on
its behalf) or be entitled to any right of contribution or
indemnity in respect of any payment made or moneys received on
account of the Guarantor's liability under this Clause 17;
(b) claim, rank, prove or vote as a creditor of any guaranteed
party or its estate in competition with any Finance Party (or
any trustee or agent on its behalf); or
(c) receive, claim or have the benefit of any payment,
distribution or security from or on account of any guaranteed
party, or exercise any right of set-off as against any
guaranteed party.
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Unless the relevant Agent otherwise directs, the Guarantor shall hold
in trust for and forthwith pay or transfer to that Agent for the
Finance Parties any payment or distribution or benefit of security
received by it contrary to this Clause 17.7.
17.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by
any other security now or hereafter held by any Finance Party.
17.9 ACKNOWLEDGMENT
(a) Both New NG and Existing NGG acknowledge that on and from the
Registration Date New NG shall be subject to the obligations under this
Clause 17 and that on and from the Registration Date Existing NGG shall
be released from its obligations under this Clause 17.
(b) All of the parties hereto acknowledge that the transfer and release of
obligations under this Clause 17 referred to in (a) above shall take
place automatically and shall require no action either by any of the
parties hereto or by any third parties.
18. REPRESENTATIONS AND WARRANTIES
18.1 REPRESENTATIONS AND WARRANTIES
Subject to Clause 18.17 (Times for making representations and
warranties), each Obligor makes the representations and warranties set
out in this Clause 18 to each Finance Party.
18.2 STATUS
(a) It is a limited liability company, duly incorporated and validly
existing under the laws of the jurisdiction of its incorporation; and
(b) each member of the Group has the power to own its assets and carry on
its business as it is being conducted.
18.3 POWER AND AUTHORITY
It has the power to enter into and perform, and has taken all necessary
action to authorise the entry into, performance and delivery of, the
Finance Documents to which it is or will be a party and the
transactions contemplated by those Finance Documents.
18.4 LEGAL VALIDITY
Each Finance Document to which it is or will be a party constitutes,
or when executed in accordance with its terms will constitute, its
legal, valid and binding obligation in accordance with its terms.
18.5 NON-CONFLICT
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not:
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(a) conflict with any applicable law or regulation or judicial or
official orders;
(b) conflict with its constitutional documents;
(c) conflict with any document which is binding upon it or any of
its assets; or
(d) result in the creation or imposition of any Security Interest
on the assets of any member of the Group.
18.6 NO DEFAULT
(a) No Event of Default is outstanding or would result from any
Utilisation.
(b) No other event is outstanding which constitutes (or, with the giving of
notice, expiry of any applicable grace period, lapse of time,
determination of materiality or the fulfilment of any other applicable
condition or any combination of the foregoing, is reasonably likely to
constitute) a default under any document which is binding on any member
of the Group or any asset of any member of the Group to an extent or in
a manner which is reasonably likely to have a material adverse effect
on the financial condition of the Obligors (taken as a whole) or on the
ability of the Obligors (taken as a whole) to perform their obligations
under the Finance Documents (including, without limitation, the
obligations under Clause 19.18 (Group Financial covenants) and the
obligations of the Guarantor under Clause 17 (Guarantee)).
18.7 LICENCES
Each Obligor, NG Company and each Principal Subsidiary is duly licensed
by:
(a) the Secretary of State under Section 6(1)(b) of the
Electricity Act; or
(b) the relevant authorities under any other applicable Energy
Laws,
to the extent that such licences are required for that Group member's
business at the time.
18.8 COMPLIANCE WITH LICENCES AND REGULATIONS
Each Obligor, NG Company and each Principal Subsidiary has complied
with and is not in breach of any of its obligations (if any) under its
Licences, the Electricity Act (save with the consent of the Authority),
the Grid Code, the BSC, MCUSA, CUSC, the Utilities Act, any regulation
or other requirement of the Authority or any other Energy Law in any
such case applicable to it to an extent or in a manner which is
reasonably likely materially and adversely to affect the ability of the
Obligors (taken as a whole) to perform their obligations under the
Finance Documents (including, without limitation, the obligations under
Clause 19.18 (Group Financial covenants) and the obligations of the
Guarantor under Clause 17 (Guarantee)).
18.9 ENVIRONMENTAL MATTERS
Each Obligor, NG Company and each Principal Subsidiary has or will at
the relevant times have obtained all Environmental Approvals required
in connection with its business and has at all times complied in all
material respects with the terms of those Environmental Approvals and
all other applicable Environmental Laws in each case where failure to
do so is
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reasonably likely materially and adversely to affect the ability of the
Obligors (taken as a whole) to perform their obligations under the
Finance Documents (including, without limitation, the obligations)
under Clause 19.18 (Group Financial covenants) and the obligations of
the Guarantor under Clause 17 (Guarantee)).
18.10 AUTHORISATIONS
All authorisations required in connection with the entry into,
performance and validity of, and the transactions contemplated by the
Finance Documents have been obtained or effected (as appropriate) and
are in full force and effect.
18.11 ACCOUNTS
(a) In the case of NGG, the audited consolidated accounts of the Group most
recently delivered to the Agents (which, at the date of this Agreement,
are the Original Group Accounts):
(i) save as specified therein, have been prepared in accordance
with accounting principles and practices generally accepted in
the United Kingdom consistently applied; and
(ii) give a true and fair view of the consolidated financial
condition of the Group as at the date to which they were drawn
up,
and there has been no material adverse change in the consolidated
financial condition of the Group since the date to which those accounts
were drawn up.
(b) In the case of each Obligor (other than NGG), its audited accounts most
recently delivered to the Agents:
(i) save as specified therein, have been prepared in accordance
with accounting principles and practices generally accepted in
the jurisdiction in which it is incorporated consistently
applied; and
(ii) give a true and fair view of its financial condition as at the
date to which they were drawn up,
and there has been no material adverse change in the financial
condition of that Obligor since the date to which those accounts were
drawn up.
18.12 LITIGATION
No litigation, arbitration or administrative proceedings are current
or, to its knowledge, pending or threatened, which are reasonably
likely, if adversely determined, to have a material adverse effect on
the financial condition of the Group or the ability of the Obligors
(taken as a whole) to perform their obligations under the Finance
Documents (including, without limitation, the obligations under Clause
19.18 (Group Financial covenants) and the obligations of the Guarantor
under Clause 17 (Guarantee)).
18.13 INFORMATION PACKAGE
(a) The factual information contained in the Information Package is to the
best of NGG's knowledge and belief true and accurate in all material
respects as at its date, opinions
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expressed about the Group in the Information Package were honestly held
and all projections in the Information Package were based on
assumptions considered to be reasonable in each case as at the date of
which the Information Package speaks and all such information, opinions
and assumptions were provided in good faith.
(b) The Information Package did not omit at its date any information which
made misleading in any material respect any factual information in the
Information Package.
(c) Nothing has occurred since the date of the Information Memorandum which
renders the information contained in it untrue, or misleading in any
material respect and which, if disclosed, could reasonably be expected
to adversely affect the decision of a person considering whether to
enter into this Agreement.
(d) In this Clause 18.13 "INFORMATION PACKAGE" means:
(i) the Information Memorandum; and
(ii) the financial model in relation to the Group and the Niagara
Mohawk Group prepared by NGG (and including the assumptions on
which such model was based).
18.14 BORROWING LIMITS
The borrowing of Advances under this Agreement up to and including the
maximum amount available to it under this Agreement will not, when
borrowed, cause any limit on borrowings or, as the case may be, on the
giving of guarantees (whether imposed by statute, regulation or
agreement) or on the powers of its board of directors, applicable to
it, to be exceeded.
18.15 ERISA
(a) Each member of the Controlled Group has fulfilled its obligations under
the minimum funding standards of ERISA and the U.S. Code with respect
to each Plan maintained by such member or any member of the Controlled
Group to which such minimum funding standards apply.
(b) Each member of the Controlled Group is in compliance with the material
applicable provisions of ERISA, the U.S. Code and any other applicable
United States Federal or State law with respect to each Plan.
(c) No Reportable Event has occurred with respect to any Plan maintained by
the Obligors or any member of the Controlled Group, and no steps have
been taken to reorganise or terminate any such Plan or by the Obligors
or any member of the Controlled Group to effect a complete or partial
withdrawal from any Multi-Employer Plan.
(d) No member of the Controlled Group has:
(i) sought a waiver of the minimum funding standard under Section
412 of the U.S. Code in respect of any Plan;
(ii) failed to make any contribution or payment to any Plan, or
made any amendment to any Plan, and no other event,
transaction or condition has occurred which has
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resulted or could result in the imposition of a lien or the
posting of a bond or other security under ERISA or the U.S.
Code; or
(iii) incurred any material, actual liability under Title I or Title
IV of ERISA other than a liability to the PBGC for premiums
under Section 4007 of ERISA.
18.16 CERTAIN U.S. REGULATIONS
(a) Each U.S. Borrower is not an investment company required to be
registered, and not a company controlled by an investment company
required to be registered, under the United States Investment Company
Act of 1940, as amended.
(b) None of the proceeds of any Advance will be used, directly or
indirectly, and whether immediately, ultimately or incidentally, for
any purpose which results in a violation of the provisions of
Regulations T, U or X.
(c) None of the Obligors nor any of their respective Subsidiaries are
engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of buying or carrying
"margin stock" within the meaning of such Regulation U.
(d) None of New NG nor any of its Subsidiaries is at the date of this
Agreement subject to regulation as a "holding company", or an
"affiliate" of a "holding company" or a "subsidiary company" of a
"holding company", within the meaning of PUHCA. Existing NGG is and,
following the Niagara Mohawk Acquisition Completion Date, NGG will be a
"holding company" and each of its Subsidiaries will be "subsidiary
companies" within the meaning of PUHCA. Without limiting Clause 18.10
(Authorisations), NGG and each of its Subsidiaries will be at all
relevant times in compliance in all material respects with all
applicable provisions of PUHCA and the rules, regulations and orders
issued thereunder, all requisite declarations and applications to be
made under PUHCA in respect of each Utilisation shall have been made
and all notices, approvals and orders issued or given pursuant to PUHCA
shall have been obtained and remain in effect, and no Utilisation will
result in any breach or failure to comply with the applicable
provisions of PUHCA and any applicable rules, regulations and orders
issued thereunder.
(e) No Finance Party will by reason of (i) the ownership or operation by
any Obligor of any Energy and Network Business or any Transmission
Business, (ii) any Advance, (iii) any Security Interest which may be
given under or in respect of the Facilities or (iv) any other
transaction or relationship contemplated by any Finance Document, be
deemed by any governmental or quasi-governmental authority,
instrumentality or regulatory body, to be, or to be subject to
regulation as, an "electric utility", "electric utility company",
"electric corporation", "electrical company", "public utility",
"natural gas company" (transporting gas in interstate commerce), "gas
utility", "public service company", "public utility holding company",
"electric utility holding company", "holding company" or "subsidiary
company" of a holding company, or other similar entity, or a subsidiary
or affiliate of any of the foregoing, under any applicable law.
18.17 TIMES FOR MAKING REPRESENTATIONS AND WARRANTIES
The representations and warranties set out in this Clause 18
(Representations and Warranties):
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(a) in the case of an Obligor:
(i) which is a Party on the date of this Agreement, are
made by that Obligor on that date and, in the case of
Clause 18.13 (Information Package), on the last day
of the Primary Syndication Period; and
(ii) which becomes a Party after the date of this
Agreement, will, except in the case of Clause 18.13
(Information Package) be deemed to be made by that
Obligor on the date it executes a Borrower Accession
Agreement; and
(b) (except in the case of Clause 18.13 (Information Package)) are
deemed to be repeated by the relevant Borrower and the
Guarantor on the date of each Utilisation Request, on each
Utilisation Date and on the first day of each Interest Period
or Term, as the case may be, with reference to the facts and
circumstances then existing.
19. COVENANTS
19.1 DURATION AND SCOPE
The undertakings in this Clause 19 remain in force from the date of
this Agreement for so long as any amount is or may be outstanding under
this Agreement or any Commitment or Swingline Commitment is in force.
19.2 FINANCIAL INFORMATION
NGG shall supply to the Agents in sufficient copies for all the Banks:
(a) as soon as the same are available (and in any event within 180
days of the end of each of its financial years):
(i) the audited consolidated accounts of the Group for
that financial year; and
(ii) the audited accounts of each Obligor (other than NGG)
for that financial year;
(b) as soon as the same are available (and in any event within 120
days of the end of the first half-year of each of its
financial years), the unaudited consolidated profit and loss
account or the interim statement of the Group for that
half-year;
(c) together with the accounts specified in paragraphs (a)(i),
(a)(ii) and (b) above, a certificate signed by one of its
directors and one of its senior officers (and if reasonably
requested by an Agent in the case of those accounts specified
in paragraph (a) above only, confirmed by NGG's Company
auditors) setting out in reasonable detail:
(i) computations establishing compliance or
non-compliance (as the case may be) with Clauses
19.15 (Restriction on Subsidiary Financial
Indebtedness) and 19.18 (Group Financial covenants);
and
(ii) at any time on request by an Agent, a list of the
then current Principal Subsidiaries; and
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(iii) on request by an Agent, the annual published audited
accounts of any other member of the Group.
19.3 INFORMATION - MISCELLANEOUS
Each Obligor shall supply to the Agents:
(a) promptly upon becoming aware of them, details of any
litigation, arbitration or administrative proceedings which
are current, threatened or pending (and which in the
reasonable opinion of the Obligor, after taking any
appropriate legal advice, there is a reasonable prospect of a
determination adverse to the interests of the relevant member
of the Group) which are reasonably likely to have a material
adverse effect on the financial condition of the Group or on
the ability of the Obligors (taken as a whole) to perform
their obligations under the Finance Documents (including,
without limitation, the obligations under Clause 19.18 (Group
Financial covenants) and the obligations of the Guarantor
under Clause 17 (Guarantee));
(b) promptly, details of all amendments to each Licence (if any)
held by an Obligor, NG Company or a Principal Subsidiary and
all material notices received by an Obligor, NG Company or a
Principal Subsidiary from the Authority or any other relevant
authority in any applicable jurisdiction in relation to its
Licence;
(c) in the case of NGG only, at the same time as they are
despatched, all documents despatched by NGG to its
shareholders generally (or any class of them) or its creditors
generally in their respective capacities as such;
(d) as soon as reasonably practicable, such further information in
the possession or control of any member of the Group regarding
its financial condition as any Finance Party through either
Agent may reasonably request and which such member of the
Group may reasonably provide having regard to its existing
legal obligations from time to time;
(e) within 10 days of the date on which they are filed with the
Securities and Exchange Commission, the Group's quarterly
return (if any) with the Securities and Exchange Commission;
and
(f) promptly, details of all declarations and applications made by
it and all relevant notices, approvals and orders issued to it
or received by it under PUHCA in relation to this Agreement or
any Utilisation hereunder;
each in sufficient copies for all of the Banks, if an Agent so
requests.
19.4 NOTIFICATION OF DEFAULT OR MANDATORY PREPAYMENT OR CANCELLATION EVENT
(a) Each Obligor shall notify the Agents of any Default (and the steps, if
any, being taken to remedy it) or any event specified in Clause 8.5
(Mandatory Prepayment and Cancellation on Change of Control) promptly
upon its becoming aware of the same; and
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(b) each Obligor shall notify the Agents immediately it receives an
enforcement order made in relation to it under Section 25 of the
Electricity Act or under any similar provisions of any applicable
Energy Laws.
19.5 COMPLIANCE CERTIFICATES
NGG shall supply to an Agent promptly upon request by that Agent at any
time, if that Agent reasonably believes a Default may have occurred, a
certificate signed by two of its senior officers on its behalf
certifying that no Default is outstanding or, if a Default is
outstanding, specifying the Default and the steps, if any, being taken
to remedy it.
19.6 AUTHORISATIONS
Each Obligor shall at all relevant times promptly:
(a) obtain, maintain and comply with the terms of; and
(b) on reasonable request by an Agent, supply certified copies to
that Agent of,
any authorisation, approval or order required under any law or
regulation including, without limitation, under any law (including, for
the avoidance of doubt, the Electricity Act, the Utilities Act and
PUHCA) to enable it to perform its obligations under, or for the
validity of, any Finance Document.
19.7 PARI PASSU RANKING
Each Obligor shall procure that its obligations under the Finance
Documents do and will rank at least pari passu with all its other
present and future unsecured obligations (subject to the preference of
certain obligations in the liquidation, bankruptcy or other analogous
proceedings in respect of it by operation of applicable law).
19.8 NEGATIVE PLEDGE
(a) No Obligor shall, and NGG shall procure that no other member of the
Group will, create or permit to subsist any Security Interest on any of
its assets.
(b) Paragraph (a) above does not apply to:
(i) any Security Interest created with the prior written consent
of the Majority Banks;
(ii) any Security Interest granted prior to the date of this
Agreement and disclosed to an Agent in writing but only if the
maximum principal amount secured thereby is not subsequently
increased;
(iii) any Security Interest by way of title retention entered into
in the ordinary course of business;
(iv) any lien arising by operation of law in the ordinary course of
business;
(v) any banker's lien or right of set-off arising by operation of
law in the ordinary course of commercial banking transactions
or any contractual set-off arrangements in the ordinary course
of commercial banking transactions;
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(vi) any Security Interest existing over assets acquired after the
date of this Agreement and existing on the date of
acquisition, provided that:
(A) the Security Interest is not created in contemplation
of the acquisition of the same; and
(B) the maximum principal amount secured thereby or the
maturity of those obligations is not thereafter
increased;
(vii) any Security Interest over the assets of any company which
becomes a Subsidiary of NGG after the date of this Agreement
and which exist at the date on which it becomes a Subsidiary
of NGG, but only:
(A) to the extent of the principal amount secured by the
Security Interest at the date it becomes a Subsidiary
of NGG; and
(B) if the Security Interest is not created in
contemplation of it becoming a Subsidiary of NGG;
(viii) any Security Interest over goods and/or documents of title, or
insurance policies and sale contracts in relation to such
goods, arising in the ordinary course of trading in connection
with letters of credit and similar transactions where such
Security Interest secures only so much of the acquisition cost
of such goods which is required to be paid within 180 days
after the date upon which the same was first incurred;
(ix) any Security Interest created in substitution for any Security
Interest permitted pursuant to this Clause 19.8 provided that
the substituted Security Interest is over the same asset and
the principal amount secured does not exceed the principal
amount secured on such asset prior to the substitution;
(x) any Security Interest created or granted from time to time in
respect of any Project Finance Borrowing including, for the
avoidance of doubt, any Security Interest created or granted
by a member of the Group in its capacity as a shareholder of a
company making a Project Finance Borrowing over its
shareholding in that company (including, in the case of a
member of the Group whose only material assets are shares in
the company incurring the Project Finance Borrowing, a
supporting floating charge over all or substantially all of
that member's assets) as security for such Project Finance
Borrowing, provided that the right of recourse against such
shareholder is limited to the realisation of the shareholding
in that company;
(xi) any Security Interest created by a Project Finance Company;
(xii) any Security Interest created or granted from time to time by
a member of the Group in its capacity as a shareholder of a
Project Finance Company over its shareholding in that Project
Finance Company as security for the obligations of such
Project Finance Company;
(xiii) any Security Interest, whether granted prior to or after the
date of this Agreement, which is granted by a Subsidiary of
NGG incorporated in, or which has its principal
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xxxxx xx xxxxxxxx xx, xxx Xxxxxx Xxxxxx to secure Financial
Indebtedness of up to US$4,200,000,000 in aggregate
outstanding at any time;
(xiv) any Security Interest created by a special purpose
securitisation vehicle over its assets where substantially all
of those assets were acquired by that vehicle from a member of
the Group as part of or to facilitate a securitisation and
where the disposal of those assets to the securitisation
vehicle constitutes a disposal of assets on arm's length
terms, the consideration for which is substantially all cash
or cash equivalent consideration, after the Signing Date, so
long as the aggregate outstanding principal amount of
Financial Indebtedness secured by all the Security Interests
permitted under this paragraph (xiv) by all members of the
Group (including NG Company) does not exceed US$1,000,000,000
or its equivalent in other currencies at any time; and
(xv) in addition to each of the Security Interests permitted under
paragraphs (i) through (xiv) above any other Security Interest
whether granted prior to or after the date of this Agreement
so long as the aggregate outstanding principal amount of
Financial Indebtedness secured by all the Security Interests
permitted under this paragraph (xv) by all members of the
Group (including NG Company) does not exceed (pound)80,000,000
or its equivalent in other currencies.
19.9 DISPOSALS
(a) No Obligor shall and NGG shall procure that no other member of the
Group will, either in a single transaction or in a series of
transactions, whether related or not and whether voluntarily or
involuntarily sell, transfer, grant or lease or otherwise dispose (each
a "DISPOSAL") of all of any part of its assets.
(b) Paragraph (a) above does not apply to:
(i) disposals to a wholly owned member of the Group not being a
Project Finance Company or from a member of the Group to an
Obligor;
(ii) disposals made in the ordinary course of trading of the
disposing entity; or
(iii) disposals of assets in exchange for other assets to the extent
that the assets acquired are comparable or superior as to
value, type and quality or earnings generation; or
(iv) disposals of obsolete assets; or
(v) the payment of cash dividends or distributions of any kind to
NGG shareholders in accordance with the Companies Xxx 0000 or
any other relevant law; or
(vi) disposals to which the Majority Banks have agreed in writing;
or
(vii) disposals by way of factoring or discounting of receivables to
the extent such factoring or discounting is carried out in the
ordinary course of business or for administrative purposes
and, in either case, the primary purpose is not the raising of
finance; or
(viii) disposals of assets on arm's length terms; or
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(ix) any other disposals not otherwise permitted under paragraphs
(b)(i) to (viii) above, including disposals to non-Group
companies for the purposes of securitisations, where the
aggregate Disposal Proceeds received or receivable by the
Group (including NG Company) for all such disposals in
aggregate over the life of the Facilities does not exceed
US$2,000,000,000 or its equivalent.
19.10 INSURANCE
(a) Each Obligor shall ensure and shall procure that NG Company ensures
that all its property and assets of an insurable nature are kept
insured against loss or damage by fire and other risks normally insured
in a sum or sums which that Obligor, or NG Company, where relevant,
considers prudent having regard to the nature and extent of the assets
to be insured.
(b) Each Obligor shall promptly pay all premiums and do all other things
and shall procure that NG Company promptly pays and does all other
things necessary to maintain in place the insurance required to be
taken out by it pursuant to paragraph (a) above.
19.11 COMPLIANCE WITH LAW
Each Obligor will and will procure that each of its Subsidiaries will
comply with, or take all reasonable practical and available steps to
comply with, the requirements of all rules, regulations and orders for
the time being of the Secretary of State and the Authority and any
relevant authority in any applicable jurisdiction relating to the
Energy and Network Business, applicable to that Obligor or its
Subsidiaries.
19.12 LICENCE
(a) NGG shall procure that NG Company, each Regulated UK Subsidiary and
each Regulated U.S. Subsidiary shall comply, or shall take all
reasonable practicable and available steps to comply (or, as the case
may be, take all reasonable practicable and available steps to procure
compliance) in all material respects with the terms of its Licence (if
any) provided that, in the case of a Regulated U.S. Subsidiary, such
Licence is material in the context of that entity's business taken as a
whole. NGG shall procure that neither NG Company, nor any Regulated UK
Subsidiary, nor any Regulated U.S. Subsidiary shall act outside the
scope of its authority thereunder (if any) or consent, without the
prior written consent of the Majority Banks, to any revocation of its
Licence (if any).
(b) No Obligor shall, and NGG shall procure that neither NG Company, nor
any Regulated UK Subsidiary, nor any Regulated U.S. Subsidiary shall,
consent to any material modification of the terms of its Licence (if
any) if such modification would have (whether immediately or in the
course of time) a material adverse effect on the ability of the
Obligors (taken as a whole) to perform their obligations under this
Agreement following such modification.
19.13 CHANGE OF BUSINESS
Except with the prior consent of the Majority Banks, NGG shall procure
that no substantial change is made to the general nature of the
businesses of the Group (taken as a whole) from that carried on at the
date of this Agreement outside the Energy and Network Businesses and
other infrastructure network businesses of the Group from time to time.
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19.14 MAINTENANCE OF STATUS
Each Obligor shall, except as otherwise permitted in this Agreement, in
all material respects do all such things as are necessary to maintain
its corporate existence.
19.15 RESTRICTION ON SUBSIDIARY FINANCIAL INDEBTEDNESS
(a) NGG shall procure that no other member of the Group shall create,
assume, incur, guarantee or otherwise be liable in respect of or have
outstanding any Financial Indebtedness other than:
(i) any Financial Indebtedness under this Agreement;
(ii) any Financial Indebtedness owing by one member of the Group to
another member of the Group, or any guarantee, indemnity or
similar assurance issued by any Subsidiary in connection with
the Financial Indebtedness of another Subsidiary that is
permitted under this Clause 19.15;
(iii) any other Financial Indebtedness (whether or not secured under
sub-paragraph (b) of Clause 19.8 (Negative Pledge)) incurred
by any Subsidiary provided that the aggregate outstanding
principal amount of such Financial Indebtedness (but less Cash
or Cash Equivalents (as defined in Clause 19.18 (Group
Financial Covenants)) held by the relevant Subsidiary):
(A) of all Subsidiaries (including NG Company) other than
Subsidiaries incorporated or whose principal place of
business is in the United States does not exceed
(pound)4,000,000,000 in aggregate; and
(B) of all Subsidiaries incorporated or whose principal
place of business is in the United States, does not
exceed US$7,000,000,000 in aggregate,
or, in each case, its equivalent in other currencies converted
into Dollars or Sterling as applicable at the time of
calculation at the Facility Agent's Spot Rate of Exchange.
(b) For the purposes of paragraph (iii) above, the amount of any Financial
Indebtedness which is constituted by currency or interest swaps, cap or
collar arrangements or any other derivative instruments shall be
calculated by aggregating the xxxx-to-market values of any such
currency or interest swaps, cap or collar arrangements or other
derivative instruments, and the determination of such amount shall
(within the bounds of ordinary market practice) be in the Facility
Agent's sole discretion and shall, in the absence of manifest error, be
conclusive and shall not be open to dispute by any party to this
Agreement or any third party.
19.16 ENVIRONMENTAL UNDERTAKINGS
Each Obligor will, and NGG will procure that each other member of the
Group will, comply in all respects with:
(a) all applicable Environmental Laws; and
(b) the terms and conditions of all Environmental Approvals
applicable to it,
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where failure to do so could reasonably be expected to have a material
adverse effect on the ability of the Obligors taken together to perform
their obligations under the Finance Documents and for this purpose will
implement procedures to monitor compliance and contain liability under
Environmental Laws.
19.17 REPAYMENT OF 1999 FACILITY AGREEMENT
NGG shall ensure that:
(a) the proceeds of any Utilisation are first applied in repayment or
prepayment of any amounts outstanding under the 1999 Facility Agreement
to the extent not otherwise repaid;
(b) from the first Utilisation Date under this Agreement no further
drawings are made under the 1999 Facility Agreement; and
(c) all undrawn commitments thereunder are cancelled with effect from a
date no later than the first Utilisation Date under this Agreement.
19.18 GROUP FINANCIAL COVENANTS
(a) In this Clause:
"CASH AND CASH EQUIVALENTS"
means:
(i) cash in hand and deposits with any bank or other financial
institution (including cash in hand and deposits denominated
in freely convertible foreign currencies);
(ii) securities issued or guaranteed by the UK government or the
United States Government;
(iii) participations in open-ended mutual funds which invest in
commercial paper, banker's acceptances, repurchase agreements,
government securities, certificates of deposit, and other
highly liquid and safe securities, and pay money market rates
of interest, which are rated at least AA by S&P and which are
immediately convertible into cash;
(iv) (A) debt securities rated at least A1 by Xxxxx'x or A+ by
S & P; and
(B) commercial paper rated at least A-1 by Xxxxx'x and
P-1 by S & P; and
(v) any other instrument, security or investment approved in
writing by the Majority Banks,
to the extent beneficially owned by a member of the Group free of
restrictions (other than exchange control requirements) on withdrawal
or transfer (in the case of cash) and (in all cases) unencumbered by
any Security Interests other than Security Interests permitted under
paragraph (b) of Clause 19.8 (Negative Pledge);
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"CONSOLIDATED EBITDA"
means in respect of any period, Consolidated Profits Before Interest
and Tax for that period after adding back depreciation and amortisation
of goodwill;
"CONSOLIDATED PROFITS BEFORE INTEREST AND TAX"
means, in respect of any period, the consolidated net pre-taxation
profits on operating activities (after adding back Net Interest Payable
and excluding any Exceptional Items and after adding back restructuring
costs incurred as a result of the Acquisition) of the Group for that
period based on the latest accounts supplied to the Agents under
paragraphs (a) or (b) of Clause 19.2 (Financial Information), as the
case may be;
"CONSOLIDATED TOTAL NET DEBT"
means the aggregate principal amount (or amounts equivalent to
principal, howsoever described) comprised in the Financial Indebtedness
of the Group (excluding amounts referred to in paragraph (g) and
paragraph (i) (insofar as those amounts in paragraph (i) relate to
amounts referred to in paragraph (g)) of the definition of Financial
Indebtedness) at the time calculated on a consolidated basis LESS Cash
and Cash Equivalents held by any member of the Group;
"EXCEPTIONAL ITEMS"
has the meaning given to it in FRS3 issued by the Accounting Standards
Board; and
"NET INTEREST PAYABLE"
means, in relation to any period, all interest and all other
continuing, regular or periodic costs, charges and expenses in the
nature of interest (whether paid, payable or capitalised) incurred by
the Group in effecting, servicing or maintaining all Financial
Indebtedness of the Group EXCLUDING any premia payable which arise on
and solely as a result of the redemption of any Bonds or the purchase
of any Bonds with a view to cancellation where such premia are defined
by formulae and/or market price mechanisms so that their quanta cannot
be determined prior to the time at which they are to be calculated LESS
all interest and other similar income receivable by members of the
Group during that period (but only to the extent the same accrue and
are receivable by the Group in a freely convertible and transferable
currency) in each case as determined from the consolidated financial
statements relating to that period delivered under Clause 19.2
(Financial Information);
and for the purposes of this Clause 20.19 only, the definition of
"GROUP" shall include all Subsidiaries of NGG (whose accounts are
ordinarily consolidated with the accounts of NGG in accordance with
accounting principles generally accepted and applied in the United
Kingdom which are Subsidiaries of NGG on the last day of each period of
12 months ending on an End Date provided that if any Subsidiary has
joined the Group during such 12 month period Consolidated Profits
Before Interest and Tax and Net Interest Payable shall be adjusted as
appropriate to include the Profits Before Interest and Tax and Net
Interest Payable for such Subsidiary for the full 12 month period and
if any other Subsidiary has left the Group during such 12 month period
Consolidated Profits Before Interest and Tax and Net Interest Payable
shall be adjusted to exclude the Profits Before Interest and Tax and
Net Interest Payable for such Subsidiary) and shall exclude any
associated companies.
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(b) NGG shall procure that:
(i) the ratio of Consolidated EBITDA to Net Interest Payable is
not, for each period of 12 months ending on the last day of
each financial year and each financial half year of the Group
(an "END DATE") less than 3:1;
(ii) the ratio of the Consolidated Total Net Debt on each End Date
to Consolidated EBITDA for each period of 12 months ending on
that End Date does not exceed 5:1;
(c) In the event of any material change in law or in generally accepted
United Kingdom accounting principles, standards and practices as
applied to the Original Group Accounts, NGG and the Agents shall, at
the request of the Agents, negotiate in good faith in order to arrive
at such amendments to this Clause as are necessary to give the Banks
equivalent but no greater protection to that contained in this Clause
prior to the relevant change.
(d) If NGG and the Agents are unable to agree in writing on those
amendments, then such amendments shall be made as a firm of chartered
accountants acceptable to, and instructed by (after consultation with
NGG ) the Agents shall certify as being necessary to give the Banks
equivalent but no greater protection to that contained in this Clause
prior to the relevant change. Any such firm of chartered accountants
shall act in this capacity as an expert, not an arbitrator, and its
decision shall be binding on all the Parties.
19.19 USE OF WEBSITES
(a) Except as provided below, a Borrower may deliver any information under
Clause 19 (Covenants) of this Agreement by any electronic means, or on
an electronic website if, in respect of the latter:
(i) the Borrower and the Facility Agent designate an electronic
website for this purpose;
(ii) the Borrower notifies the Facility Agent of the address of and
password for the website; and
(iii) the information posted is in a format agreed between the
Borrower and the Facility Agent.
The Facility Agent must supply each relevant Bank with the address of
and password for the website.
(b) Notwithstanding the above, the Borrower must supply to the Facility
Agent in paper form a copy of any information posted on a website
together with sufficient copies for:
(i) any Bank not agreeing to receive information via the website;
and
(ii) any other Bank, if that Bank so requests, within ten Business
Days of such request.
(c) The Borrower must promptly upon becoming aware of its occurrence,
notify the Facility Agent if:
(i) a designated website cannot be accessed;
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(ii) the website or any information on the website is infected by
any electronic virus or similar software;
(iii) the password for the website is changed; or
(iv) any information to be supplied under this Agreement is posted
on the website or amended after being posted.
If the circumstances in paragraphs (i) or (ii) above occur, the
Borrower must supply any information required under this Agreement in
paper form.
20. DEFAULT
20.1 EVENTS OF DEFAULT
Each of the events set out in Clauses 20.2 (Non-payment) to 20.17
(Material Adverse Change) (both inclusive) is an Event of Default
(whether or not caused by any reason whatsoever outside the control of
any Obligor or any other person).
20.2 NON-PAYMENT
An Obligor does not pay within three Business Days of the due date any
amount payable by it under the Finance Documents at the place at and in
the currency in which it is expressed to be payable.
20.3 BREACH OF OTHER OBLIGATIONS
(a) An Obligor does not comply with Clause 19.18 (Group Financial
covenants).
(b) An Obligor does not comply with any provision of the Finance Documents
applicable to it (other than those referred to in paragraph (a) above
or in Clause 20.2 (Non-payment)) and such failure (if capable of remedy
before the expiry of such period) continues unremedied for a period of
thirty (30) days from the date on which the relevant Agent gives notice
to NGG requiring the same to be remedied.
20.4 MISREPRESENTATION
A representation, warranty or statement made or repeated by any Obligor
in or in connection with any Finance Document or in any document
delivered by or on behalf of any Obligor under or in connection with
any Finance Document is incorrect in any material respect when made or
deemed to be made or repeated.
20.5 CROSS-DEFAULT
(a) Subject to paragraph (b) below:
(i) any Financial Indebtedness of a member of the Group is not
paid when due or within any originally applicable grace
period;
(ii) an event of default howsoever described occurs under any
document relating to Financial Indebtedness of a member of the
Group;
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(iii) any Financial Indebtedness of a member of the Group becomes
prematurely due and payable or is placed on demand as a result
of an event of default (howsoever described);
(iv) any commitment for, or underwriting of, any Financial
Indebtedness of a member of the Group is cancelled or
suspended as a result of an event of default howsoever
described) under the document relating to that Financial
Indebtedness; or
(v) any Security Interest securing Financial Indebtedness over any
asset of a member of the Group becomes enforceable by reason
of an event of default howsoever described,
so long as the principal amount of any single instance of such
Financial Indebtedness equals or exceeds (pound)50,000,000 or the
aggregate principal amount of any such Financial Indebtedness incurred
by any member of the Group (including NG Company) is equal to or
exceeds (pound)100,000,000 or its equivalent in other currencies.
(b) For the purposes of this Clause 20.5 the definition of Financial
Indebtedness shall exclude:
(i) Project Finance Borrowings; and
(ii) Until the date falling six months after the Niagara Mohawk
Acquisition Completion Date, Financial Indebtedness of any
member of the Niagara Mohawk Group outstanding as at the date
it became a member of the Group.
(c) For the purposes of paragraph (a) above, the amount of any Financial
Indebtedness which is constituted by currency or interest swaps, cap or
collar arrangements or any other derivative instruments shall be
calculated by aggregating the xxxx-to-market values of any such
currency or interest swaps, cap or collar arrangements or other
derivative instruments, and the determination of such amount shall
(within the bounds of ordinary market practice) be in the Facility
Agent's sole discretion and shall, in the absence of manifest error, be
conclusive and shall not be open to dispute by any party to this
Agreement or any third party.
20.6 INSOLVENCY
(a) NGG, NG Company, a Principal Subsidiary or a Regulated UK Subsidiary
(other than a Project Finance Company) is, or is deemed for the
purposes of any law to be unable to pay its debts as they fall due or
to be insolvent, or admits inability to pay its debts as they fall due;
or
(b) NGG, NG Company, a Principal Subsidiary or a Regulated UK Subsidiary
(other than a Project Finance Company) suspends making payments on all
or any class of its debts or announces an intention to do so or a
moratorium is declared in respect of any of its indebtedness; or
(c) NGG, NG Company, a Principal Subsidiary or a Regulated UK Subsidiary
(other than a Project Finance Company) by reason of financial
difficulties generally begins negotiations with one or more of its
creditors with a view to the readjustment or rescheduling of any of its
indebtedness.
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20.7 INSOLVENCY PROCEEDINGS
(a) Any step (including petition, proposal or convening a meeting) is
taken, by reason of financial difficulties, with a view to a
composition, assignment or scheme of arrangement with any creditors of
NGG, NG Company, a Principal Subsidiary or a Regulated UK Subsidiary;
or
(b) a meeting of NGG, NG Company, a Principal Subsidiary or a Regulated UK
Subsidiary is convened for the purpose of considering any resolution
for (or to petition for) its winding-up or its administration or any
such resolution is passed; or
(c) any person presents a petition for the winding-up or for the
administration of NGG, NG Company, a Principal Subsidiary or a
Regulated UK Subsidiary other than a petition which is frivolous and
vexatious and which is not struck out within 14 days of its
presentation; or
(d) any order for the winding-up or administration of NGG, NG Company, a
Principal Subsidiary or a Regulated UK Subsidiary is made; or
(e) any other step (including petition, proposal or convening a meeting) is
taken with a view to the rehabilitation, administration, custodianship,
liquidation, winding-up or dissolution of or any other insolvency
proceedings involving NGG, NG Company, a Principal Subsidiary or a
Regulated UK Subsidiary.
20.8 APPOINTMENT OF RECEIVERS AND MANAGERS
(a) Any liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator or the like
is appointed in respect of NGG, NG Company, a Principal Subsidiary or a
Regulated UK Subsidiary or any part of its assets; or
(b) the directors of NGG, NG Company, a Principal Subsidiary or a Regulated
UK Subsidiary requests the appointment of a liquidator, trustee in
bankruptcy, judicial custodian, compulsory manager, receiver,
administrative receiver, administrator or the like; or
(c) any other steps are taken to enforce any Security Interest over any
part of the assets of NGG, NG Company, a Principal Subsidiary or a
Regulated UK Subsidiary.
20.9 CREDITORS' PROCESS
Any attachment, sequestration, distress or execution affects any asset
of NGG, NG Company, a Principal Subsidiary or a Regulated UK Subsidiary
and is not discharged within 21 days.
20.10 ANALOGOUS PROCEEDINGS
There occurs, in relation to NGG, NG Company, a Principal Subsidiary or
a Regulated UK Subsidiary, any event anywhere which, in the opinion of
the Majority Banks, is analogous to any of those mentioned in Clauses
20.6 (Insolvency) to 20.9 (Creditors' process) (both inclusive).
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20.11 CESSATION OF BUSINESS
NG Company (or a Regulated UK Subsidiary) ceases to carry on its
Transmission Business pursuant to its Transmission Licence (if any),
unless its Transmission Licence (or the relevant part thereof) is
granted or transferred to another member of the Group.
20.12 UNLAWFULNESS
It is or becomes unlawful for any Obligor to perform any of its
obligations under the Finance Documents.
20.13 GUARANTEE
The guarantee under Clause 17 (Guarantee) is not effective or is
alleged by an Obligor to be ineffective for any reason.
20.14 OWNERSHIP OF THE OBLIGORS
Any Obligor (other than NGG) is not or ceases to be a Subsidiary of
NGG, or NG Company or, after the Niagara Mohawk Acquisition Completion
Date, Niagara Mohawk, is not or ceases to be a wholly-owned Subsidiary
of NGG.
20.15 COMPLIANCE WITH LAWS AND REGULATIONS
An Obligor, NG Company or a Regulated U.S. Subsidiary fails to comply
in all material respects with all applicable provisions of any Energy
Law applicable to it or with its Licence (if any) and such failure to
comply is reasonably likely to have a material adverse effect on the
ability of the Obligors (as a whole) to perform their obligations under
the Finance Documents (including, without limitation, the obligations
under Clause 19.18 (Group Financial covenants) and the obligations of
the Guarantor under Clause 17 (Guarantee)).
20.16 REVOCATION AND MODIFICATION OF LICENCES
NG Company's Licence or the Licence of a Regulated U.S. Subsidiary is:
(a) revoked or surrendered other than where the revocation or
surrender is effected in relation to a transfer to another
member of the Group (or any notice of revocation is issued by
the Secretary of State or other relevant authority under the
applicable Energy Laws) and, in the case of a Regulated U.S.
Subsidiary such revocation or surrender (or notice of
revocation) is reasonably likely to have a material adverse
effect on the ability of the Obligors (taken as a whole) to
perform their obligations under the Finance Documents
(including, without limitation, the obligations of NGG under
Clause 19.18 (Group Financial covenants) and the obligations
of the Guarantor under Clause 17 (Guarantee)); or
(b) modified, other than where the modification is effected in
relation to a transfer to another member of the Group, in any
manner which is reasonably likely to have a material adverse
effect on the ability of the Obligors (taken as a whole) to
perform their obligations under the Finance Documents
(including, without limitation, the obligations of NGG under
Clause 19.18 (Group Financial covenants) and the obligations
of the Guarantor under Clause 17 (Guarantee)).
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20.17 MATERIAL ADVERSE CHANGE
Any event occurs in relation to the Group (taken as a whole) which is
likely to have a material adverse effect on the ability of the Obligors
(taken as a whole), to comply with their obligations under the Finance
Documents.
20.18 ACCELERATION
On and at any time after the occurrence of an Event of Default an Agent
may, and will if so directed by the Majority Banks, by notice to NGG:
(i) cancel the Total Commitments and Total Swingline Commitments;
and/or
(ii) demand that all the Advances, together with accrued interest,
and all other amounts accrued under this Agreement be
immediately due and payable, whereupon they will become
immediately due and payable; and/or
(iii) demand that all the Advances be payable on demand, whereupon
they will immediately become payable on demand.
21. THE AGENTS AND THE ARRANGERS
21.1 APPOINTMENT AND DUTIES OF THE AGENTS
(a) Subject to paragraph (f) of Clause 21.15 (Resignation of an Agent),
each Finance Party (other than the Facility Agent) irrevocably appoints
the Facility Agent to act as its agent under and in connection with the
Finance Documents; and
(b) each Swingline Bank irrevocably appoints the Swingline Agent to act as
its agent under and in relation to the Swingline Advance Facility,
and in each case authorises that Agent on its behalf to:
(i) perform the duties and to exercise the rights, powers and
discretions that are specifically delegated to it under or in
connection with the Finance Documents, together with all other
incidental rights, powers and discretions; and
(ii) execute as agent for that Finance Party each Finance Document
to which that Agent is a party.
(c) An Agent shall have only those duties which are expressly specified in
this Agreement. Those duties are solely of a mechanical and
administrative nature.
21.2 ROLE OF THE ARRANGER
Except as otherwise specifically provided in this Agreement, no
Arranger has any obligations of any kind to any other Party under or in
connection with any Finance Document.
21.3 RELATIONSHIP
The relationship between an Agent and the other Finance Parties is that
of agent and principal only. Nothing in this Agreement constitutes an
Agent as trustee or fiduciary for any
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other Party or any other person and an Agent need not hold in trust any
moneys paid to it for a Party or be liable to account for interest on
those moneys.
21.4 MAJORITY BANKS' DIRECTIONS
An Agent will be fully protected if it acts in accordance with the
instructions of the Majority Banks in connection with the exercise of
any right, power or discretion or any matter not expressly provided for
in the Finance Documents. Any such instructions given by the Majority
Banks will be binding on all the Banks. In the absence of such
instructions an Agent may act as it considers to be in the best
interests of all the Banks.
21.5 DELEGATION
An Agent may act under the Finance Documents through its personnel and
agents.
21.6 RESPONSIBILITY FOR DOCUMENTATION
Neither an Agent nor any Arranger is responsible to any other Party
for:
(a) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
(b) the collectability of amounts payable under any Finance
Document; or
(c) the accuracy of any statements (whether written or oral) made
in or in connection with any Finance Document.
21.7 DEFAULT
(a) An Agent is not obliged to monitor or enquire as to whether or not a
Default has occurred and an Agent will not be deemed to have knowledge
of the occurrence of a Default. However, if an Agent receives notice
from a Party referring to this Agreement, describing the alleged
Default and stating that it believes the event is a Default, that Agent
shall promptly notify the Banks.
(b) An Agent may require the receipt of security satisfactory to it,
whether by way of payment in advance or otherwise, against any
liability or loss which it will or may incur in taking any proceedings
or action arising out of or in connection with any Finance Document
before it commences those proceedings or takes that action.
21.8 EXONERATION
(a) Without limiting paragraph (b) below, an Agent will not be liable to
any other Party for any action taken or not taken by it under or in
connection with any Finance Document, unless directly caused by that
Agent's gross negligence or wilful misconduct.
(b) No Party may take any proceedings against any officer, employee or
agent of an Agent in respect of any claim it might have against that
Agent or in respect of any act or omission of any kind (including
negligence or wilful misconduct) by that officer, employee or agent in
relation to any Finance Document.
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21.9 RELIANCE
An Agent may:
(a) rely on any notice or document believed by it to be genuine
and correct and to have been signed by, or with the authority
of, the proper person;
(b) rely on any statement made by a director or employee of any
person regarding any matters which may reasonably be assumed
to be within his knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other professional
advisers selected by it (including those in that Agent's
employment and those representing a Party other than that
Agent.
21.10 CREDIT APPROVAL AND APPRAISAL
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance
Document, each Bank confirms that it:
(a) has made 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 an Agent or an Arranger in connection with
any Finance Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
while any amount is or may be outstanding under the Finance
Documents or any Commitment or Swingline Commitment is in
force.
21.11 INFORMATION
(a) Each Agent shall promptly forward to the person concerned the original
or a copy of any document which is delivered to that Agent by a Party
for that person.
(b) Each Agent shall promptly supply a Bank with a copy of each document
received by that Agent under Clauses 4 (Conditions Precedent), 28.4
(Additional Borrowers) upon the request of that Bank.
(c) Except where this Agreement specifically provides otherwise, an Agent
is not obliged to review or check the accuracy or completeness of any
document it forwards to another Party.
(d) Except as provided above, an Agent has no duty:
(i) either initially or on a continuing basis to provide any Bank
with any credit or other information concerning the financial
condition or affairs of any Obligor or any related entity of
any Obligor, whether coming into its possession or that of any
of its related entities before, on or after the date of this
Agreement; or
(ii) unless specifically requested to do so by a Bank in accordance
with this Agreement, to request any certificates or other
documents from any Obligor.
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21.12 THE AGENT AND THE ARRANGERS INDIVIDUALLY
(a) If it is a Bank, each of the Agents and any Arranger has the same
rights and powers under this Agreement as any other Bank and may
exercise those rights and powers as though it were not an Agent or an
Arranger.
(b) Each of the Agents, and any Arranger may:
(i) carry on any business with an Obligor or its related entities;
(ii) act as agent or trustee for, or in relation to any financing
involving, an Obligor or its related entities; and
(iii) retain any profits or remuneration in connection with its
activities under this Agreement or in relation to any of the
foregoing.
(c) Each Obligor irrevocably authorises each of the Agents to disclose to
the other Finance Parties any information which, in the reasonable
opinion of that Agent, is received by it in its capacity as Agent.
21.13 INDEMNITIES
(a) Without limiting the liability of any Obligor under the Finance
Documents, each Revolving Facility Bank or (in the case of the
Swingline Agent) each Swingline Bank shall forthwith on demand
indemnify each Agent for its proportion of any liability or loss
incurred by that Agent in any way relating to or arising out of it
acting as an agent, except to the extent that the liability or loss
arises directly from that Agent's gross negligence or wilful
misconduct.
(b) A Revolving Facility Bank's proportion of the liability or loss set out
in paragraph (a) above is the proportion which the Original Dollar
Amount of its Advances bears to the Original Dollar Amount, as the case
may be, of all Advances (other than Swingline Advances) outstanding on
the date of the demand. If, however, no such Advances are outstanding
on the date of demand, then the proportion will be that which each
Revolving Facility Bank's Commitment bears to the Total Commitments at
the date of demand or, if the Total Commitments have been cancelled,
bore to the Total Commitments immediately before being cancelled.
(c) A Swingline Bank's proportion of the liability or loss set out in
paragraph (a) above is the proportion which the Original Dollar Amount
of its Swingline Advances bears to the Original Dollar Amount, as the
case may be, of all Swingline Advances outstanding on the date of the
demand. If, however, no Swingline Advances are outstanding on the date
of demand, then the proportion will be that which each Swingline Bank's
Commitment bears to the Total Swingline Commitments at the date of
demand or, if the Total Swingline Commitments have been cancelled, bore
to the Total Swingline Commitments immediately before being cancelled.
(d) NGG shall forthwith on demand reimburse each Bank for any payment made
by it under paragraphs (b) and (c) above.
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21.14 COMPLIANCE
(a) An Agent may refrain from doing anything which might, in its opinion,
constitute a breach of any law or regulation or be otherwise actionable
at the suit of any person, and may do anything which, in its opinion,
is necessary or desirable to comply with any law or regulation of any
jurisdiction.
(b) Without limiting paragraph (a) above, an Agent need not disclose any
information relating to any Obligor or any of its related entities if
the disclosure might, in the opinion of that Agent constitute a breach
of any law or regulation or any duty of secrecy or confidentiality or
be otherwise actionable at the suit of any person.
21.15 RESIGNATION OF AN AGENT
(a) Notwithstanding its irrevocable appointment, an Agent may resign by
giving notice to the Banks and NGG, in which case that Agent may
forthwith appoint one of its Affiliates as successor Agent or, failing
that, the Majority Banks may appoint a successor Agent.
(b) If the appointment of a successor Agent is to be made by the Majority
Banks but they have not, within 30 days after notice of resignation,
appointed a successor Agent which accepts the appointment, a retiring
Agent may, after prior consultation with NGG, appoint a successor
Agent.
(c) The resignation of a retiring Agent and the appointment of any
successor Agent will both become effective only upon the successor
Agent notifying all the Parties that it accepts the appointment. On
giving the notification, the successor Agent will succeed to the
position of the retiring Agent and the term "FACILITY AGENT" or
"SWINGLINE AGENT" will mean the successor Agent, where appropriate.
(d) 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 the relevant Agent under this Agreement.
(e) Upon its resignation becoming effective, this Clause 21 shall continue
to benefit the retiring Agent in respect of any action taken or not
taken by it under or in connection with the Finance Documents while it
was an Agent and, subject to paragraph (d) above, it shall have no
further obligation under any Finance Document.
(f) An Agent shall, forthwith upon being requested to do so by the Majority
Banks, resign in accordance with paragraph (a) above. However, in this
event, an Agent may not appoint one of its Affiliates as successor
Agent as contemplated by paragraph (a) above and the Majority Banks
shall appoint a successor Agent.
21.16 BANKS
(a) An Agent may treat each Bank as a Bank and entitled to payments under
this Agreement and as acting through its Facility Office(s) until it
has received notice from the Bank to the contrary not less than five
Business Days prior to any relevant payment.
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(b) An Agent may at any time, and shall if requested to do so by the
Majority Banks, convene a meeting of the Banks.
21.17 CHINESE WALL
In acting as an Agent or as an Arranger, the agency and syndications
division of each of an Agent and the Arrangers shall be treated as a
separate entity from its other divisions and departments. Any
information acquired at any time by an Agent, or any Arranger otherwise
than in the capacity of Agent or Arranger through its agency and
syndications division (whether as financial advisor to any member of
the Group or otherwise) may be treated as confidential by that Agent or
Arranger and shall not be deemed to be information possessed by that
Agent or Arranger in their capacity as such. Each Finance Party
acknowledges that an Agent and the Arrangers may, now or in the future,
be in possession of, or provided with, information relating to the
Group which has not or will not be provided to the other Finance
Parties. Each Finance Party agrees that, except as expressly provided
in this Agreement, neither any Agent nor any Arranger will be under any
obligation to provide, or under any liability for failure to provide,
any such information.
22. FEES
22.1 FRONT-END FEES
NGG shall pay to the Agents on behalf of the Arrangers fees with
respect to each Facility on their final allocation in accordance with
the Fee Letter between the Arrangers and NGG.
22.2 COMMITMENT FEE
(a) NGG shall pay to the Facility Agent for each Bank commitment fees in
the following amounts:
(i) with respect to Facility A:
(A) during the period prior to the Niagara Mohawk
Acquisition Completion Date 0.125 per cent. per
annum; and
(B) thereafter, the amount per annum that is the lesser
of 0.15 per cent. per annum and 40 per cent. of the
lowest Applicable Margin then in effect for Facility
A Advances as calculated in accordance with Clause
9.6 (Applicable Margin);
(ii) with respect to Facility B:
(A) during the period prior to the Niagara Mohawk
Acquisition Completion Date 0.20 per cent. per annum;
(B) thereafter, 0.20 per cent. per annum when the
uncancelled amount of the Facilities is more than
US$1,500,000,000, otherwise 45 per cent. of the
Applicable Margin as calculated in accordance with
Clause 9.6 (Applicable Margin);
(b) Accrued commitment fees are payable quarterly in arrears on the daily
undrawn, uncancelled amount of the relevant Facility A Commitment and
Facility B Commitment on each day from
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the Signing Date until the Final Maturity Date of the relevant Facility
A Availability Period and Facility B Availability Period (inclusive)
with the first payment due three months after the Signing Date. Accrued
commitment fee is also payable to the Facility Agent for the relevant
Bank(s) on the cancelled amount of its Facility A Commitment or
Facility B Commitment as the case may be at the time the cancellation
takes effect. Accrued commitment fees are payable in Dollars.
22.3 TERM-OUT FEE AND FACILITY A AVAILABILITY EXTENSION FEE
On the day on which a Term-out Advance is made pursuant to paragraph
(b) of Clause 7.1 (Repayment of Facility A Advances) and on the first
day of any extended Facility A Availability Period under Clause 5.10
(Extension of Facility A Availability Period) (as applicable), NGG
shall pay the Facility Agent for distribution pro rata to the Revolving
Facility Banks which participate in the relevant Term-out Advance or
which consent to the extension of the Facility A Availability Period
(as applicable) a fee or fees calculated as follows:
(a) (i) in the case of Term-out Advances with a term equal to
or less than one year, a fee of 0.05 per cent. flat
on the aggregate Original Dollar Amount of all
Term-out Advances made on that date; or
(ii) in the case of Term-out Advances with a term greater
than one year, a fee of 0.10 per cent. flat on the
aggregate Original Dollar Amount of all Term-out
Advances made on that date; and
(b) in the case of an extension of the Facility A Availability
Period, a fee of 0.05 per cent. flat on the aggregate Original
Dollar Amount of the Facility A Commitments of those Banks
which have agreed to extend the Facility A Availability
Period.
22.4 AGENCY FEE
NGG shall pay to the Facility Agent for its own and for the Swingline
Agent's account agency fees in the amounts agreed in the Agency Fee
Letter between Existing NGG, New NG, NGGF and the Facility Agent.
22.5 VAT
Any fee referred to in this Clause 22 is exclusive of any value added
tax or any other tax which might be chargeable in connection with that
fee. If any value added tax or other tax is so chargeable, it shall be
paid by NGG at the same time as it pays the relevant fee.
23. EXPENSES
23.1 INITIAL AND SPECIAL COSTS
NGG shall forthwith on demand pay the Facility Agent and the Arrangers
the amount of all reasonable costs and expenses (including legal fees)
incurred by any of them in connection with:
(a) the arranging, underwriting and primary syndication of the
Facilities;
(b) the negotiation, preparation, printing and execution of:
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(i) this Agreement and any other documents referred to in
this Agreement;
(ii) any other Finance Document (other than a Transfer
Certificate) executed after the date of this
Agreement; and
(c) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf
of an Obligor and relating to a Finance Document or a document
referred to in any Finance Document.
23.2 ENFORCEMENT COSTS
NGG shall forthwith on demand pay to each Agent the amount of all
reasonable costs and expenses (including legal fees) incurred by it in
connection with the enforcement of, or the preservation of any rights
under, any Finance Document.
24. STAMP DUTIES
NGG shall pay and forthwith on demand indemnify each Finance Party
against any liability it incurs in respect of any stamp, registration
and similar tax which is or becomes payable in connection with the
entry into, performance or enforcement of any Finance Document.
25. INDEMNITIES
25.1 CURRENCY INDEMNITY
(a) If a Finance Party receives an amount in respect of an Obligor's
liability under the Finance Documents or if that liability is converted
into a claim, proof, judgement or order in a currency other than the
currency (the "CONTRACTUAL CURRENCY") in which the amount is expressed
to be payable under the relevant Finance Document:
(i) that Obligor shall indemnify that Finance Party as an
independent obligation against any loss or liability arising
out of or as a result of the conversion;
(ii) if the amount received by the Finance Party, when converted
into the contractual currency at a market rate in the usual
course of its business, is less than the amount owed in the
contractual currency, the Obligor concerned shall forthwith on
demand pay to that Finance Party an amount in the contractual
currency equal to the deficit; and
(iii) the Obligor shall pay to the Finance Party concerned on demand
any exchange costs and taxes payable in connection with any
such conversion.
(b) Each Obligor waives any right it may have in any jurisdiction to pay
any amount under the Finance Documents in a currency other than that in
which it is expressed to be payable.
25.2 OTHER INDEMNITIES
The Obligors shall forthwith on demand indemnify each Finance Party
against any loss or liability which that Finance Party incurs as a
consequence of:
(a) the occurrence of any Default;
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(b) the operation of Clause 20.18 (Acceleration) or Clause 31
(Redistributions);
(c) any payment of principal or an overdue amount being received
from any source otherwise than on its Maturity Date or the
last day of its Interest Period and, for the purposes of this
paragraph (c), the Maturity Date of an overdue amount is the
last day of each Default Term (as defined in Clause 9.4
(Default interest)); or
(d) (other than by reason of negligence or default by a Finance
Party) a Utilisation not being effected after a Borrower has
delivered a Utilisation Request for that Utilisation.
The Obligors' liability in each case includes any loss of margin or
other loss or expense on account of funds borrowed, contracted for or
utilised to fund any amount payable under any Finance Document, any
amount repaid or prepaid or any Advance.
25.3 ACQUISITION INDEMNITY
NGG will indemnify each Finance Party and each of their respective
Affiliates and directors, officers, agents and employees (each, an
"INDEMNIFIED PERSON") against all losses, claims, damages, liabilities,
charges and related expenses which such Indemnified Person may incur or
may be or may become subject to as a result of or in any way related to
the making available of credit facilities under this Agreement or
making Advances hereunder in connection with the implementation of the
Acquisition or the making of the related offer for the stock of Niagara
Mohawk (whether or not such acquisition is completed) except to the
extent that the same results from the Indemnified Person's negligence
or wilful default.
If for any reason the foregoing indemnification provisions are
unavailable to or insufficient to hold harmless an Indemnified Person
in respect of any such losses, claims, damages, liabilities, charges or
related expenses (or actions in respect thereof), then NGG shall
contribute to the amount paid or payable by such Indemnified Person as
a result of such losses, claims, damages, liabilities, charges or
related expenses (or actions in respect thereof) in such proportion as
is appropriate to reflect the relative fault of NGG and its Affiliates,
on the one hand, and the Indemnified Person, on the other hand, in
connection with the implementation of the Acquisition or the making of
the related offer for the stock of Niagara Mohawk, as well as any other
relevant equitable considerations. The amount paid or payable by an
Indemnified Person as a result of the losses, claims, damages,
liabilities, charges or related expenses (or actions in respect
thereof) referred to above shall be deemed to include any legal or
other fees or expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph, no Indemnified Person
shall be required to contribute any amount in excess of the fees, if
any, received by such Indemnified Person under or pursuant to this
Agreement.
25.4 INDEMNITY TO THE AGENT
NGG shall promptly indemnify any Agent against any cost, loss or
liability incurred by that Agent (acting reasonably) as a result of:
(a) entering into or performing any foreign exchange contract for
the purposes of Clause 10 (Optional Currencies); or
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(b) acting or relying on any notice, request or instruction from
any of the Obligors which it reasonably believes to be
genuine, correct and appropriately authorised.
26. CALCULATIONS AND EVIDENCE OF DEBT
26.1 ACCOUNTS
Accounts maintained by a Finance Party in connection with this
Agreement are prima facie evidence of the matters to which they relate.
26.2 CERTIFICATES AND DETERMINATION
(a) Any certification or determination by a Finance Party of a rate or
amount under this Agreement shall be supported (other than in relation
to any calculation of interest) by reasonable evidence of how the
calculation has been made and, if so supported, shall be, in the
absence of manifest error, conclusive evidence of the matters to which
it relates.
(b) Any determination by an Agent of a rate of interest shall be, in the
absence of manifest error, conclusive.
(c) Nothing in this Clause obliges any Finance Party to disclose any
confidential information.
26.3 CALCULATIONS
(a) Interest payable on an amount denominated in Sterling or
payable in respect of the Swingline Advance Facility and any
applicable Mandatory Cost) accrue from day to day and are
calculated on the basis of the actual number of days elapsed
and a year of 365 days; and
(b) interest payable on an amount denominated in Dollars or an
Optional Currency (other than a Swingline Advance or where
market practice otherwise dictates) and the fees payable under
Clause 22 (Fees) accrue from day to day and are calculated on
the basis of the actual number of days elapsed and a year of
360 days,
(or, in either case, as otherwise agreed between the Facility Agent and
NGG in accordance with usual market practice).
27. AMENDMENTS AND WAIVERS
27.1 PROCEDURE
(a) Subject to Clause 27.2 (Exceptions), any term of the Finance Documents
may be amended or waived with the agreement of NGG and the Majority
Banks and (in so far as its position as an Agent is affected) an Agent.
The Facility Agent may effect, on behalf of the Majority Banks, an
amendment to which they have agreed.
(b) The Facility Agent shall promptly notify the other Parties of any
amendment or waiver effected under paragraph (a) above, and any such
amendment or waiver shall be binding on all the Parties.
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27.2 EXCEPTIONS
(a) An amendment or waiver which relates to:
(i) the definition of "Majority Banks" in Clause 1.1
(Definitions);
(ii) an extension of the date for, or a decrease in an amount
(including any fees payable or the Applicable Margin) or a
change in the currency of, any payment under the Finance
Documents;
(iii) an increase in a Bank's Commitment or Swingline Commitment,
where relevant;
(iv) a term of a Finance Document which expressly requires the
consent of each Bank;
(v) the incorporation of Additional Borrowers otherwise than in
accordance with Clause 28.4 (Additional Borrowers); or
(vi) Clause 17 (Guarantee), Clause 31 (Redistributions) or this
Clause 27,
may not be effected without the consent of each Bank.
(b) An amendment or waiver which relates to an Agent may not be effected
without the consent of that Agent, not to be unreasonably withheld or
delayed.
27.3 WAIVER AND REMEDIES CUMULATIVE
The rights of each Finance Party under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the
general law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver
of that right.
28. CHANGES TO THE PARTIES
28.1 TRANSFERS BY OBLIGORS
No Obligor may assign, transfer, novate or dispose of any of, or any
interest in, its rights and/or obligations under the Finance Documents.
28.2 NEW BANKS
(a) A Bank (the "EXISTING BANK") may, at any time, assign, transfer or
novate any of its rights and/or obligations under this Agreement to
another person (the "NEW BANK") without the prior consent of or notice
to any Obligor except that:
(i) prior to completion of the Primary Syndication Period, the
Existing Bank may only assign, transfer or novate (or seek to
assign, transfer or novate) its rights and/or
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obligations in accordance with the syndication strategy agreed
between the Arrangers and NGG;
(ii) the prior written consent of NGG (such consent not to be
unreasonably withheld or delayed) is required for any such
assignment, transfer or novation after completion of the
Primary Syndication Period and prior to the Niagara Mohawk
Acquisition Completion Date and such consent will be deemed to
have been given if, within fourteen days of receipt by NGG of
an application for consent, it has not been expressly refused;
(iii) after completion of the Primary Syndication Period (but
subject to (ii), above) without restriction, save that in the
case of a partial assignment, transfer or novation of its
rights and/or obligations under any Facility a minimum amount
of US$10,000,000 (or its equivalent) in aggregate and a
minimum of US$1,000,000 (or its equivalent) per Facility
(unless to an Affiliate of a Bank or to another Bank or the
relevant Agent agrees otherwise) must be assigned, transferred
or novated; and
(iv) no assignment, novation or transfer of all or any part of a
Swingline Commitment or Facility B Commitment shall be made by
that Existing Bank unless simultaneously therewith a pro rata
amount of the Facility B Commitment or Swingline Commitment of
that Existing Bank (or its Affiliated Bank) and a pro rata
amount of each of that Existing Bank's (or its Affiliated
Bank's) outstanding Swingline Advances or, as the case may be,
Facility B Advances (which are not Swingline Advances) are
also assigned, novated or transferred (where relevant) to the
New Bank (or its Affiliated Bank), provided that no such pro
rata assignment, novation or transfer of a Facility B
Commitment or outstanding Facility B Advances (which are not
Swingline Advances) shall be required to be made by a
Revolving Facility Bank which is also a Swingline Bank if it
assigns, novates or transfers a Swingline Commitment to its
Affiliated Bank.
(b) A transfer of obligations will be effective only if either:
(i) the obligations are transferred by way of novation in
accordance with Clause 28.3 (Procedure for transfers); or
(ii) the New Bank confirms to the relevant Agent and NGG that it
undertakes to be bound by the terms of this Agreement as a
Bank in form and substance satisfactory to that Agent. On the
transfer becoming effective in this manner the Existing Bank
shall be relieved of its obligations under this Agreement to
the extent that they are transferred to the New Bank.
(c) Nothing in this Agreement restricts the ability of a Bank to
sub-contract an obligation if that Bank remains liable under this
Agreement for that obligation.
(d) On each occasion that an Existing Bank assigns, transfers or novates
any of its rights and/or obligations under this Agreement after
completion of the Primary Syndication Period (other than to an
Affiliate), the New Bank shall, on the date the assignment, transfer
and/or novation takes effect, pay to the relevant Agent for its own
account a fee of US$1,500.
(e) An Existing Bank is not responsible to a New Bank for:
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(i) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance
Document; or
(iii) the accuracy of any statements (whether written or oral) made
in or in connection with any Finance Document.
(f) Each New Bank confirms to the Existing Bank and the other Finance
Parties that it:
(i) has made 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 Bank in connection with any
Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
while any amount is or may be outstanding under this Agreement
or any Commitment or Swingline Commitment, where relevant, is
in force.
(i) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a New Bank of any of the rights
and/or obligations assigned or transferred or novated under
this Clause; or
(ii) support any losses incurred by the New Bank by reason of the
non-performance by any Obligor of its obligations under this
Agreement or otherwise.
(j) Any reference in this Agreement to a Bank includes a New Bank but
excludes a Bank if no amount is or may be owed to or by that Bank under
this Agreement and its Commitment has been cancelled or reduced to nil.
28.3 PROCEDURE FOR TRANSFERS
(a) A transfer by way of novation is effected if:
(i) the Existing Bank and the New Bank deliver to the relevant
Agent a duly completed certificate substantially in the form
set out in Schedule 5 (a "TRANSFER CERTIFICATE") with such
changes as that Agent approves to achieve a substantially
similar effect (which may be delivered by fax and confirmed by
delivery of a hard copy original but the fax will be effective
irrespective of whether confirmation is received; and
(ii) the Facility Agent executes it.
(b) Each Party (other than the Existing Bank and the New Bank) irrevocably
authorises the relevant Agent to execute any duly completed Transfer
Certificate on its behalf and that Agent agrees promptly to provide a
copy of the Transfer Certificate to NGG after it has executed it.
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(c) To the extent that they are expressed to be the subject of the transfer
in the Transfer Certificate) on the date of execution of the Transfer
Certificate by the Facility Agent (or the date specified in the
Transfer Certificate if later):
(i) the Existing Bank and the other Parties (the "EXISTING
PARTIES") will be released from their obligations to each
other (the "DISCHARGED OBLIGATIONS");
(ii) the New Bank and the existing Parties will assume obligations
towards each other which differ from the discharged
obligations only in so far as they are owed to or assumed by
the New Bank instead of the Existing Bank;
(iii) the rights of the Existing Bank against the existing Parties
and vice versa (the "DISCHARGED RIGHTS") will be cancelled;
and
(iv) the New Bank and the existing Parties will acquire rights
against each other which differ from the discharged rights
only in so far as they are exercisable by or against the New
Bank instead of the Existing Bank,
all on the date of execution of the Transfer Certificate by the
relevant Agent or, if later, the date specified in the Transfer
Certificate.
(d) If the effective date of a novation is after the date a Utilisation
Request is received by an Agent but before the date a requested Advance
is disbursed to for the relevant Borrower, the Existing Bank shall be
obliged to participate in that Advance in respect of its discharged
obligations notwithstanding that novation and the New Bank shall
reimburse the Existing Bank for its participation in that Advance and
all interest and fees thereon up to the date of reimbursement (in each
case to the extent attributable to the discharged obligations) within
three Business Days of the Utilisation Date of that Advance.
28.4 ADDITIONAL BORROWERS
(a) If New NG wishes one of its wholly-owned Subsidiaries to become an
Additional Borrower, then it may (after prior consultation with the
Agents and, if it is incorporated outside of the United Kingdom, with
the prior consent of all the Banks not to be unreasonably withheld or
delayed) deliver to the Agents, the documents listed in Part III of
Schedule 2 (Conditions Precedent Documents).
(b) On delivery of a Borrower Accession Agreement, executed by the relevant
Subsidiary and New NG, the Subsidiary will, subject to the restrictions
set out in Clause 5.1 (Receipt of Utilisation Requests), become an
Additional Borrower (provided that, where that Subsidiary is not
incorporated in the United Kingdom, the prior written consent of all
Banks shall be required not to be unreasonably withheld or delayed).
However, it may not utilise any of the Facilities until the Agents
confirm to the other Finance Parties and New NG that it has received
all the documents referred to in paragraph (a) above in form and
substance satisfactory to it.
(c) Delivery of a Borrower Accession Agreement, executed by the Subsidiary
and New NG, constitutes confirmation by that Subsidiary and New NG that
the representations and warranties set out in Clause 18
(Representations and Warranties) and to be made by them on the date of
the Borrower Accession Agreement are correct, as if made with reference
to the facts and circumstances then existing.
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28.5 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank of
which it is an Affiliate) ceases to be one of the Banks, the Facility
Agent shall (in consultation with NGG) appoint another Bank to replace
the Reference Bank.
28.6 ADDITIONAL PAYMENTS
If following:
(a) any assignment, transfer or novation of all or any part of the
rights or obligations of a Bank to a New Bank under Clause
28.2 (New Banks); or
(b) any change in a Bank's Facility Office,
any additional amount is required to be paid to the New Bank or that
Bank (as the case may be) by any Obligor under Clause 12 (Taxes) or
Clause 14 (Increased Costs) of this Agreement as a result of laws,
regulations or requirements of any central bank or other fiscal
monetary or competent authority (whether or not having the force of
law) or other circumstances in each case in force at the time of that
assignment, transfer, novation or change, then the New Bank or Bank
(acting through its new Facility Office) will be entitled to receive
any such amount only to the extent that the Existing Bank or Bank
(acting through its old Facility Office) would have been so entitled
had there been no assignment, transfer, novation or change in Facility
Office (as the case may be).
28.7 REGISTER
Each Agent shall keep a register of all the Parties and shall supply
any other Party (at that Party's expense) with a copy of the register
on request.
28.8 RELEASE OF BORROWERS
Any Borrower (other than Existing NGG, New NG and NGGF) may cease to be
a Borrower if at any time, whilst there are no sums which are or may be
outstanding from that Borrower under the Finance Documents and there is
no outstanding Utilisation Request in relation to that Borrower, it
delivers a notice to that effect to the Agents. Upon delivery of any
such notice the relevant Borrower shall cease to be a Borrower and
shall, subject as provided in this Clause, cease to have any
obligations under the Finance Documents in its capacity (only) as a
Borrower but without affecting any obligations it may have as Guarantor
or in any other capacity.
29. DISCLOSURE OF INFORMATION
A Bank may disclose to its professional advisers, to any of its
Affiliates or any other person with whom it is proposing to enter, or
has entered into, any kind of transfer, participation or other
agreement in relation to this Agreement:
(a) a copy of any Finance Document;
(b) a copy of the Information Memorandum; and
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(c) any information which that Bank has acquired under or in
connection with any Finance Document,
provided that a Bank shall not disclose any such information to a
person other than one of its Affiliates unless that person has provided
to that Bank a confidentiality undertaking addressed to that Bank and
NGG, substantially in the form set out in Schedule 8 (Form of
Confidentiality Undertakings) or such other form as NGG may approve.
30. SET-OFF
A Finance Party may set off any matured obligation owed by an Obligor
under this Agreement (to the extent beneficially owned by that Finance
Party) against any obligation (whether or not matured) 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. If either obligation is unliquidated or
unascertained, the Finance Party may set off in an amount estimated by
it in good faith to be the amount of that obligation.
31. REDISTRIBUTIONS
31.1 REDISTRIBUTION
If any amount owing by an Obligor under this Agreement to a Finance
Party (the "RECOVERING FINANCE PARTY") is discharged by payment,
set-off or any other manner other than through the Facility Agent or
the Swingline Agent in accordance with Clause 11 (Payments) (a
"RECOVERY"), then:
(a) the recovering Finance Party shall, within 3 Business Days,
notify details of the recovery to the relevant Agent;
(b) that Agent shall determine whether the recovery is in excess
of the amount which the recovering Finance Party would have
received had the recovery been received by that Agent and
distributed in accordance with Clause 11 (Payments);
(c) subject to Clause 31.3 (Exceptions), the recovering Finance
Party shall, within 3 Business Days of demand by the relevant
Agent, pay to that Agent an amount (the "REDISTRIBUTION")
equal to the excess;
(d) the relevant Agent shall treat the redistribution as if it
were a payment by the Obligor concerned under Clause 11
(Payments) and shall pay the redistribution to the Finance
Parties (other than the recovering Finance Party) in
accordance with Clause 11.7 (Partial payments); and
(e) after payment of the full redistribution, the recovering
Finance Party will be subrogated to the portion of the claims
paid under paragraph (d) above, and that Obligor will owe the
recovering Finance Party a debt which is equal to the
redistribution, immediately payable and of the type originally
discharged.
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31.2 REVERSAL OF REDISTRIBUTION
If under Clause 31.1 (Redistribution):
(a) a recovering Finance Party must subsequently return a
recovery, or an amount measured by reference to a recovery, to
an Obligor; and
(b) the recovering Finance Party has paid a redistribution in
relation to that recovery,
each Finance Party shall, within 3 Business Days of demand by the
recovering Finance Party through the relevant Agent, reimburse the
recovering Finance Party all or the appropriate portion of the
redistribution paid to that Finance Party. Thereupon the subrogation in
paragraph (e) of Clause 31.1 (Redistribution) will operate in reverse
to the extent of the reimbursement.
31.3 EXCEPTIONS
(a) A recovering Finance Party need not pay a redistribution to the extent
that it would not, after the payment, have a valid claim against the
Obligor concerned in the amount of the redistribution pursuant to
paragraph (e) of Clause 31.1 (Redistribution).
(b) Where a recovering Finance Party has received a recovery as a
consequence of the satisfaction or enforcement of a judgment obtained
in any legal action or proceedings to which it is a party it need not
pay a redistribution to any Finance Party which (being entitled to do
so) did not join in with the recovering Finance Party in the legal
action or proceedings, unless the recovering Finance Party did not give
prior notice of its involvement in the legal action or proceedings to
the relevant Agent for disclosure to all the Banks.
32. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid
or unenforceable in any jurisdiction, that shall not affect:
(a) the legality, validity or enforceability in that jurisdiction
of any other provision of the Finance Documents; or
(b) the legality, validity or enforceability in other
jurisdictions of that or any other provision of the Finance
Documents.
33. COUNTERPARTS
This Agreement 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 Agreement
34. NOTICES
34.1 GIVING OF NOTICES
All notices or other communications under or in connection with this
Agreement shall be given in writing or facsimile. Any such notice will
be deemed to be given as follows:
(a) if in writing, when delivered;
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(b) if by facsimile, when received.
However, a notice given in accordance with the above but received other
than on a Business Day or after business hours in the place of receipt
will only be deemed to be given on the next Business Day in that place.
Facsimile notices to the relevant Agent must be confirmed in writing
(but non-receipt of that confirmation will not affect the validity of
the original facsimile notice).
34.2 NOTICES
The address, facsimile and telephone numbers and contact details of
each Party for all notices and other matters under or in connection
with this Agreement are:
(i) identified with its signature below (or, in the case of any
Bank that becomes a Party pursuant to a Transfer Certificate,
set out in the relevant Transfer Certificate); or
(ii) as otherwise notified by that Party for this purpose to the
relevant Agent by not less than five Business Days' notice.
35. GOVERNING LAW AND JURISDICTION
35.1 GOVERNING LAW
This Agreement is governed by English law.
35.2 SUBMISSION TO JURISDICTION
(a) The Obligors irrevocably agree for the benefit of each of the Finance
Parties that the Courts of England shall have exclusive jurisdiction in
relation to any claim, dispute or difference concerning a Finance
Document and in relation to, or in relation to the enforcement of, any
judgment relating to any such claim, dispute or difference and
accordingly submits to the jurisdiction of the English Courts.
(b) Each Obligor irrevocably waives any right that it may have to object to
an action being brought in the Courts of England, to claim that the
action has been brought in an inconvenient forum or to claim that the
Courts of England do not have jurisdiction.
(c) Nothing in this Clause shall (or be construed so as to) limit the right
of any Finance Party to bring legal proceedings in any other court of
competent jurisdiction (including, without limitation the courts have
jurisdiction by reason of an Obligor's place of incorporation) or
concurrently on more than one jurisdiction), whether by way of
substantive action, ancillary relief, enforcement or otherwise.
35.3 SERVICE OF PROCESS
Without prejudice to any other mode of service, each Obligor:
(a) irrevocably appoints NGG as its agent for service of process
in relation to any proceedings before the English courts in
connection with any Finance Document;
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(b) agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned;
(c) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its
address for the time being applying under Clause 34.2
(Notices); and
(d) agrees that if the appointment of any person mentioned in
paragraph (a) above ceases to be effective, the relevant
Obligor shall immediately appoint a further person in England
to accept service of process on its behalf in England and,
failing such appointment within 15 days, the Facility Agent is
entitled to appoint such a person by notice to the Obligors.
35.4 FORUM CONVENIENCE AND ENFORCEMENT ABROAD
Each Obligor agrees that a judgment or order of a court of England in
connection with a Finance Document is conclusive and binding on it and
may be enforced against it in the courts of any other jurisdiction.
35.5 NO THIRD PARTY RELIANCE
A person who is not a party to this Agreement may not enforce its terms
under the Contracts (Rights of Third Parties) Xxx 0000.
IN WITNESS whereof this Agreement has been entered into on the date set out
above.
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SCHEDULE 1
THE BANKS
PART I
FACILITY A BANKS AND COMMITMENTS
BANKS COMMITMENTS
US$
----- -------------
ABN AMRO Bank N.V. 85,000,000.00
Bank of America, N.A. 85,000,000.00
The Bank of Tokyo-Mitsubishi, Ltd. 85,000,000.00
Barclays Bank PLC 85,000,000.00
Bayerische Landesbank Girozentrale, London Branch 85,000,000.00
Citibank, N.A. 85,000,000.00
Dresdner Bank AG London Branch 85,000,000.00
HSBC Bank plc 85,000,000.00
JPMorgan Chase Bank 85,000,000.00
TD Bank Europe Limited 85,000,000.00
BBVA Ireland Plc 49,373,913.04
The Bank of New York 49,373,913.04
Commerzbank Aktiengesellschaft, London Branch 49,373,913.04
Deutsche Bank AG London 49,373,913.04
Fleet National Bank 49,373,913.04
Landesbank Hessen-Thuringen Girozentrale, Irish Branch 49,373,913.04
ING Bank N.V., London Branch 49,373,913.04
Landesbank Baden-Wurttemberg, London Branch 49,373,913.04
National Australia Bank Limited (ABN 12 004 044 937) 49,373,913.04
Royal Bank of Canada Europe Limited 49,373,913.04
The Royal Bank of Scotland plc 49,373,913.04
Scotiabank Europe plc 49,373,913.04
Societe Generale 49,373,913.04
Westdeutsche Landesbank Girozentrale 49,373,913.04
Australia and New Zealand Banking Group Limited 27,347,826.09
Banco Santander Central Hispano, S.A. 27,347,826.09
Mellon Bank, N.A. 27,347,826.09
Sumitomo Mitsui Banking Corporation (SMBC) 27,347,826.09
The Dai-Ichi Kangyo Bank, Limited 24,686,956.54
The Fuji Bank, Limited 24,686,956.54
================
Facility A Total Commitments 1,700,000,000.00
================
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PART II
FACILITY B BANKS AND COMMITMENTS
BANKS COMMITMENTS
US$
----- -------------
ABN AMRO Bank N.V. 30,000,000.00
Bank of America, N.A. 30,000,000.00
The Bank of Tokyo-Mitsubishi, Ltd. 30,000,000.00
Barclays Bank PLC 30,000,000.00
Bayerische Landesbank Girozentrale, London Branch 30,000,000.00
Citibank, N.A. 30,000,000.00
Dresdner Bank AG London Branch 30,000,000.00
HSBC Bank plc 30,000,000.00
JPMorgan Chase Bank 30,000,000.00
TD Bank Europe Limited 30,000,000.00
BBVA Ireland Plc 17,426,086.96
The Bank of New York 17,426,086.96
Commerzbank Aktiengesellschaft, London Branch 17,426,086.96
Deutsche Bank International Limited 17,426,086.96
Fleet National Bank 17,426,086.96
Landesbank Hessen-Thuringen Girozentrale, Irish Branch 17,426,086.96
ING Bank N.V., London Branch 17,426,086.96
Landesbank Baden-Wurttemberg, London Branch 17,426,086.96
National Australia Bank Limited (ABN 12 004 044 937) 17,426,086.96
Royal Bank of Canada Europe Limited 17,426,086.96
The Royal Bank of Scotland plc 17,426,086.96
Scotiabank Europe plc 17,426,086.96
Societe Generale 17,426,086.96
Westdeutsche Landesbank Girozentrale 17,426,086.96
Australia and New Zealand Banking Group Limited 9,652,173.90
Banco Santander Central Hispano, S.A. 9,652,173.90
Mellon Bank, N.A. 9,652,173.90
Sumitomo Mitsui Banking Corporation (SMBC) 9,652,173.90
The Dai-Ichi Kangyo Bank, Limited 8,713,043.48
The Fuji Bank, Limited 8,713,043.48
==============
Facility B Total Commitments 600,000,000.00
==============
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PART III
SWINGLINE BANKS AND SWINGLINE COMMITMENTS
BANKS COMMITMENTS
US$
----- -------------
ABN AMRO Bank N.V. 30,000,000
Bank of America, N.A. 30,000,000
The Bank of Tokyo-Mitsubishi, Ltd. 30,000,000
Barclays Bank PLC 30,000,000
Bayerische Landesbank New York Branch 30,000,000
Citibank, N.A. 30,000,000
Dresdner Bank AG London Branch 30,000,000
HSBC Bank plc 30,000,000
JPMorgan Chase Bank 30,000,000
Toronto Dominion (Texas) Inc. 30,000,000
===========
Swingline Total Commitments 300,000,000
===========
94
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SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
PART I
TO BE DELIVERED BEFORE THE FIRST UTILISATION
(a) A copy of the memorandum and articles of association and certificate of
incorporation of the Borrowers;
(b) a copy of a resolution of the board of directors (or a duly constituted
committee of the board of directors and of the board of directors
establishing such committee) of each Borrower:
(i) approving the terms of, and the transactions contemplated by, the
Finance Documents and resolving that it execute the Finance
Documents;
(ii) authorising a specified person or persons to execute and, where
applicable, deliver the Finance Documents to which it is a party on
its behalf; and
(iii) authorising a specified person or persons, on its behalf, to
sign and/or despatch all other documents and notices
(including but not limited to Utilisation Requests) to be
signed and/or despatched by it under or in connection with the
Finance Documents;
(c) specimens of the signatures of each person authorised by the resolutions
referred to in paragraph (b) above;
(d) a copy of NG Company's Transmission Licence and the Licences (if any) of
each Borrower;
(e) a certificate of a director of each of the Borrowers on its behalf
confirming that utilisation of the Facilities in full would not, when
utilised, cause any borrowing limit binding on it to be exceeded;
(f) a certificate of an authorised signatory of each of the Borrowers
certifying that each copy document specified in Part I of this Schedule 2
is correct, complete and in full force and effect as at a date no earlier
than the date of this Agreement;
(g) a legal opinion of Xxxxx & Xxxxx addressed to the Finance Parties; and
(h) a notice of cancellation of the undrawn commitment (if any) under the 1999
Facility Agreement such cancellation to be effective no later than the
first Utilisation Date.
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PART II
TO BE DELIVERED BEFORE THE FIRST ADVANCE UNDER FACILITY A
(a) a certified copy of the Niagara Mohawk Merger Agreement;
(b) a certified copy of the circular to the shareholders of Existing NGG to be
distributed in connection with the Acquisition;
(c) a certified copy of the resolution passed by the shareholders of Existing
NGG approving the Acquisition;
(d) a certified copy of a resolution passed by the shareholders of Niagara
Mohawk approving the Acquisition;
(e) a certificate from two directors of New NG dated no earlier than five
Business Days before the Niagara Mohawk Acquisition Completion Date (and no
later than the date of the first Utilisation Request under Facility A) to
the effect that:
(i) the Offeror is to complete such acquisition on a specified date
(being a date on or prior to the first Advance under Facility A);
and
(ii) the Acquisition is being completed substantially in accordance with
the terms contemplated in the Niagara Mohawk Merger Agreement and
upon completion the Offeror will have acquired 100 per cent. of
Niagara Mohawk; and
(iii) completion of the Acquisition (taking into account any governmental
or other conditions affecting the Acquisition after completion and
the aggregate cash receivable by Niagara Mohawk shareholders in
connection with the Acquisition) will not, in the opinion of the
directors of New NG, materially and adversely impact on the ability
of the enlarged Group to comply with the financial covenants set out
in Clause 19.18 (Group Financial Covenants) or otherwise on the
operation of the business of the enlarged Group (taken as a whole);
(f) evidence in form and substance satisfactory to the Facility Agent that all
other existing credit agreements (if any) of any Obligor or of NG Company
have been cancelled and prepaid in full or where necessary have been
renegotiated so as to ensure that neither the Acquisition nor any
Utilisation under this Agreement will constitute an event of default
(however defined) under any such credit agreement (such cancellation or
renegotiation to be effective prior to the first Utilisation Date under
Facility A);
(g) evidence in form and substance satisfactory to the Facility Agent that NGG
and each other relevant member of the Group will as at the Niagara Mohawk
Acquisition Completion Date, be in compliance with all applicable
provisions of PUHCA and will have made all necessary applications and
declarations under, and obtained all necessary orders, approvals and
consents under, PUHCA in relation to this Agreement and each Advance
hereunder;
(h) a copy of the memorandum and articles of association and certificate of
incorporation of Existing NGG and New NG;
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(i) a certificate of an authorised signatory of Existing NGG and New NG
certifying that each of the copy documents specified in sub-paragraph
(h) of this Part II are correct, complete and in full force and effect
as at the Registration Date;
(j) a certificate of a director of each of Existing NGG and New NG on its
behalf confirming that utilisation of the Facilities in full would not,
when utilised, cause any borrowing limit binding on it to be exceeded;
and
(k) a certified copy of the order of the High Court of Justice sanctioning
the Scheme of Arrangement under Section 425 of the Companies Xxx 0000
which was registered with the Registrar of Companies pursuant to
sub-section 3 of Section 425 of the Companies Xxx 0000 on the
Registration Date.
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PART III
TO BE DELIVERED BY AN ADDITIONAL BORROWER
(a) A Borrower Accession Agreement, duly executed by the Additional Borrower
and NGG;
(b) a copy of the memorandum and articles of association and certificate of
incorporation or equivalent constitutional documents of the Additional
Borrower;
(c) a copy of a resolution of the board of directors or equivalent of the
Additional Borrower:
(i) approving the terms of, and the transactions contemplated by, the
Borrower Accession Agreement and resolving that it execute the
Borrower Accession Agreement;
(ii) authorising a specified person or persons to execute the Borrower
Accession Agreement on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices including but not
limited to Utilisation Requests to be signed and/or despatched by it
under or in connection with this Agreement;
(d) a certificate of a director of the Additional Borrower on its behalf
confirming that utilisation of the Facilities in full would not, when
utilised, cause any borrowing limit binding on it to be exceeded;
(e) a copy of any other authorisation or other document, opinion or assurance
which the relevant Agent considers to be necessary in connection with the
entry into and performance of, and the transactions contemplated by, the
Borrower Accession Agreement or for the validity of any Finance Document;
(f) specimens of the signatures of each person authorised by the resolution
referred to in paragraph (c) above;
(g) the latest audited accounts of the Additional Borrower;
(h) a certificate of an authorised signatory of the Additional Borrower
certifying that each copy document specified in this Part III of Schedule 2
is correct, complete and in full force and effect as at a date no earlier
than the date of the Borrower Accession Agreement; and
(i) a legal opinion from the relevant jurisdiction addressed to the Finance
Parties.
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SCHEDULE 3
CALCULATION OF THE MANDATORY COST
(a) The Mandatory Cost for an Advance for its Term or Interest Period is the
rate determined by the Facility Agent to be equal to the arithmetic mean
(rounded upward, if necessary, to four decimal places) of the respective
rates notified by each of the Reference Banks to the Facility Agent and
calculated in accordance with the following formulae:
in relation to an Advance denominated in Sterling:
BY + S(Y-Z) + F x 0.01 % per annum
----------------------
100-(B+S)
in relation to any other Advance:
F x 0.01 % per annum
--------
300
where on the day of application of a formula:
B is the percentage of the Reference Bank's eligible liabilities (in
excess of any stated minimum) which the Bank of England requires the
Reference Bank to hold on a non-interest-bearing deposit account in
accordance with its cash ratio requirements;
Y is LIBOR at or about 11.00 a.m. on that day for the Term or Interest
Period;
S is the percentage of the Reference Bank's eligible liabilities which
the Bank of England requires the Reference Bank to place as a
special deposit;
Z is the interest rate per annum allowed by the Bank of England on
special deposits; and
F is the charge payable by the Reference Bank to the Financial
Services Authority under paragraph 2.02 or 2.03 (as appropriate) of
the Fees Regulations (but where for this purpose, the figure in
paragraph 2.02b and 2.03b will be deemed to be zero) expressed in
pounds per (pound)1,000,000 of the fee base of the Bank.
(b) For the purposes of this Schedule 3:
(i) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings
given to them at the time of application of the formula by the Bank
of England; and
(ii) "FEE BASE" has the meaning given to it in the Fees Regulations;
(iii) "FEES REGULATIONS" means the Banking Supervision (Fees) Regulations
2001, and/or any other regulations governing the payment of fees for
banking supervision.
(c) In the application of the formula, B, Y, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y =
15%, BY is calculated as 0.5 x 15.
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(d) If a Reference Bank does not supply a rate to the Facility Agent, the
applicable Mandatory Cost will be determined on the basis of the rate(s)
supplied by the remaining Reference Banks.
(e) (i) The formula is applied on the first day of the Term or Interest Period
of the relevant Advance.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(f) If the Facility Agent determines that a change in circumstances has
rendered, or will render, the formula inappropriate, the Facility Agent
(after consultation with the Banks) shall notify NGG of the manner in which
the Mandatory Cost will subsequently be calculated. The manner of
calculation so notified by the Facility Agent shall, in the absence of
manifest error, be binding on all the Parties.
