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The £100,000,000 8.875 per cent. Bonds 2026 (the "Bonds", which expression shall in these Terms and Conditions, unless the context otherwise requires, include any further bonds issued pursuant to Condition 17 and forming a single series with the Bonds) of NORWEB plc (the "Issuer") are constituted by a Second Supplemental Trust Deed dated 6 July 2001 (the "Second Supplemental Trust Deed") between the Issuer and The Law Debenture Trust Corporation p.l.c. (the "Trustee", which expression shall include its successors as the trustee under the Trust Deed) as trustee for the holders of the Bonds (the "Bondholders") supplemental to the Principal Trust Deed dated 3 August 1995 (the "Principal Trust Deed") between the Issuer and the Trustee and constituting £200,000,000 8.875 per cent. Bonds 2026 of the Issuer (the "Original Bonds") as supplemented by a First Supplemental Trust Deed dated 2 July 2001 (the "First Supplemental Trust Deed" and, together with the Principal Trust Deed and the Second Supplemental Trust Deed, the "Trust Deed") between the Issuer and the Trustee. The Bonds are consolidated and form a single series with the Original Bonds. The issue of the Bonds was authorised by resolutions of the Board of Directors of the Issuer passed on 27 June 2001. The Bonds are, on issue, listed on the official list of the UK Listing Authority and admitted to trading on the London Stock Exchange plc (the "London Stock Exchange"). The statements in these Terms and Conditions include summaries of, and are subject to, the detailed provisions of and definitions in the Trust Deed. Copies of the Trust Deed and of an Agency Agreement dated 3 August 1995 (the "Principal Agency Agreement") and the First Supplemental Agency Agreement dated 6 July 2001 (together with the Principal Agency Agreement, the "Agency Agreement"), each made between the Issuer, Citibank, N.A. (or in the case of the Principal Agency Agreement, Morgan Guaranty Trust Company of New York, London office but now replaced by Citibank, N.A.), as principal paying agent (the "Principal Paying Agent, which expression shall include any successor), Computershare Investor Services PLC as registrar (the "Registrar", which expression shall include any successor), the other paying agents named therein (together with the Principal Paying Agent, the "Paying Agents", which expression shall include any additional or successor paying agents) and the Trustee are available for inspection during normal business hours by the Bondholders and the holders of the interest coupons appertaining to the Bonds in bearer form (respectively, the "Couponholders" and the "Coupons", which latter expression shall, unless the context otherwise requires, include the Talon referred to below) at the registered office for the time being of the Trustee, being at the date of issue of the Bonds at Fifth Floor, 100 Wood Street, London EC2V 7EX, and at the specified office of each of the Paying Agents and the Registrar. The Bondholders and the Couponholders are entitled to the benefit of, are bound by, and are deemed to have notice of, all the provisions of the Trust Deed and the Agency Agreement.
1. FORM, DENOMINATION AND TITLE
The Bonds are in bearer form, serially numbered in the denominations of £1,000, £10,000 and £100,000 each ("Bearer Bonds") with Coupons and one Talon for further Coupons (a "Talon") attached on issue and in registered form in the denominations of £1 and integral multiples thereof ("Registered Bonds") without interest coupons. Title to the Bearer Bonds and to the Coupons will pass by delivery and title to the Registered Bonds will pass upon the registration of transfers in accordance with the provisions of the Agency Agreement and the Trust Deed. Bearer Bonds of one denomination cannot be exchanged for Bearer Bonds of another denomination.
The Issuer, any Paying Agent, the Registrar and the Trustee may (to the fullest extent permitted by applicable laws) deem and treat the holder of any Bearer Bond and the holder of any Coupon and the registered holder of any Registered Bond as the absolute owner for all purposes (whether or not the Bond or Coupon shall be overdue and notwithstanding any notice of ownership or writing on the Bond or Coupon or any notice of previous loss or theft of the Bond or Coupon).
On the Closing Date, the Bonds will be issued as Bearer Bonds and will be represented initially by the Global Bond, without Coupons, which will be deposited with a common depositary for Euroclear Bank S.A./N.V. ("Euroclear") and Clearstream Banking, société anonyme ("Clearstream, Luxembourg") on or about the Closing Date for credit against payment to the accounts designated by the relevant subscribers with Euroclear or Clearstream, Luxembourg. The Global Bond will be exchangeable on or after a date which is expected to be 15 August 2001 for definitive Bearer Bonds, with Coupons and one Talon attached, upon certification that the beneficial owners of the relevant Bearer Bonds are not U.S. persons or persons who have acquired such Bearer Bonds for resale to any U.S. person.
Unless, upon due presentation of the Global Bond for exchange, delivery of definitive Bearer Bonds is improperly withheld or refused and such withholding or refusal is continuing at the relevant due date for payment thereof, definitive Bearer Bonds with Coupons attached must be obtained before interest can be collected in respect of the relevant Bearer Bonds.
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Bonds (both in bearer and registered form) and Coupons will bear the following legend:
"Any United States person who holds this obligation will be subject to limitations under the United States income tax laws, including the limitations provided in Section 165(j) and 1287(a) of the Internal Revenue Code".
2. TRANSFER AND EXCHANGE
(a) Transfer of Registered Bonds
A Registered Bond may be transferred in whole or in part (in the principal amount of £1 or any integral multiple thereof) by the transferor depositing the Registered Bond for registration of the transfer of the Registered Bond (or the relevant part of the Registered Bond) at the specified office of the Registrar with a form of transfer (in a form approved by the Registrar and the Trustee) duly completed and signed by or on behalf of the transferor and upon the Registrar after due and careful enquiry being satisfied with the evidence of title and the identity of the person making the request and subject to such reasonable regulations as the Issuer and the Registrar may (with the prior approval of the Trustee) prescribe. Subject as provided above and subject to the payment of any sum in respect of any stamp duty, tax or other governmental charge as is referred to in paragraph (e) below, the Registrar will, within three Business Days (as defined below) of the request (or such longer period as may be required to comply with any applicable fiscal or other laws or regulations), deliver at its specified office to the transferee or (at the risk and, if mailed at the request of the transferee otherwise than by ordinary uninsured mail, at the expense of the transferee) send by mail to such address as the transferee may request a new Registered Bond of a like aggregate principal amount to the Registered Bond (or the relevant part of the Registered Bond) transferred. In the case of the transfer of part only of a Registered Bond, a new Registered Bond in respect of the balance of the Registered Bond not transferred will be so delivered or (at the risk and, if mailed at the request of the transferor otherwise than by ordinary uninsured mail, at the expense of the transferor) sent by mail to the transferor. For the purpose of this Condition 2, "Business Day" means a day on which commercial banks and foreign exchange markets settle payments in London.
(b) Exchange of Bearer Bonds for Registered Bonds
At the option of the holder thereof, upon presentation to the Principal Paying Agent at any time on or after 15 August 2001 (the "Exchange Date") of a duly completed and signed request for exchange (in the form for the time being obtainable from the specified office of the Registrar or the Principal Paying Agent (a "Registration Request")) together with the relevant Bearer Bond(s) and payment of any sum in respect of any such stamp duty, tax or other governmental charge as is referred to in paragraph (e) below, subject to the terms of the Agency Agreement, Bearer Bonds are exchangeable in whole, but not in part, for the same aggregate principal amount of Registered Bonds, provided that all unmatured Coupons relating thereto are attached thereto or are surrendered therewith. Registration Requests may not be presented on or after the Record Date (as defined in Condition 5) in respect of any Interest Payment Date (as defined in Condition 4) up to and including such Interest Payment Date. Interest on a Registered Bond issued on exchange will accrue, and interest on the corresponding Bearer Bond(s) presented for exchange will cease to accrue, as from the immediately preceding Interest Payment Date or, if none, as from 25 March 2001. Registration Requests may only he presented, and Bearer Bonds and Coupons may only he surrendered for exchange for Registered Bonds, at the specified office of the Principal Paying Agent. The Registrar will, within five Business Days of the date of presentation to the Principal Paying Agent of any Registration Request together with the relevant Bearer Bond(s) and Coupons, deliver at its specified office to the Bondholder or (at the risk and, if mailed at the request of the Bondholder otherwise than by ordinary uninsured mail, at the expense of the Bondholder) mail to such address (other than an address in the United States) as may be specified by the Bondholder in the Registration Request a Registered Bond of the same aggregate principal amount as that of the Bearer Bond exchanged.
(c) Exchange of Registered Bonds for Bearer Bonds
At the option of the holder thereof, upon presentation to the Registrar at any time on or after the Exchange Date of a duly completed and signed request for exchange (in the form for the time being obtainable from the specified office of the Registrar or the Principal Paying Agent (a "Bearer Request")) together with the relevant Registered Bond(s) and payment of any sum in respect of any such stamp duty, tax or other governmental charge as is referred to in paragraph (e) below, subject to the terms of the Agency Agreement, Registered
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Bonds are exchangeable in whole or in part in principal amounts of £1,000 or integral multiples thereof for the same aggregate principal amount of Bearer Bonds. Bearer Requests may not be presented on or after the Record Date in respect of any Interest Payment Date up to and including such Interest Payment Date. Bearer Requests may not be presented on or after the date the Issuer validly gives notice to the Bondholders of its intention to redeem Bearer Bonds pursuant to Condition 6(c). Interest on Bearer Bonds issued on exchange will accrue, and interest on the corresponding Registered Bonds presented for exchange will cease to accrue, as from the immediately preceding Interest Payment Date or, if none, 25 March 2001. Bearer Requests may only be presented, and Registered Bonds may only be surrendered for exchange for Bearer Bonds, at the specified office of the Registrar. The Principal Paying Agent will, within five Business Days of the date of presentation to the Registrar of any Bearer Request together with the relevant Registered Bond(s), deliver at its specified office to the Bondholder or (at the risk and, if mailed at the request of the Bondholder otherwise than by ordinary uninsured mail, at the expense of the Bondholder) mail to such address, other than an address in the United States as may be specified by the Bondholder in the Bearer Request, the Bearer Bond or Bearer Bonds requested together with all Coupons in respect of all Interest Payment Dates falling after the date of presentation. In the case of exchange of part only of a Registered Bond, a new Registered Bond for the balance so exchanged will be sent by mail by the Registrar (at the risk and, if mailed at the request of the Bondholder otherwise than by ordinary uninsured mail, at the expense of the Bondholder) to such address, other than an address in the United States, as may be specified by the Bondholder in the Bearer Request.
(d) Closed Periods
In the event of a partial redemption of Bonds under Condition 6(b), the Issuer shall not be required:
| (i) | to register the transfer of Registered Bonds (or parts of Registered Bonds) or to exchange Bearer Bonds for Registered Bonds (or vice versa) during the period beginning on the sixty-fifth day before the date of the partial redemption and ending on the day on which notice is given specifying the serial numbers of Bonds called (in whole or in part) for redemption (both inclusive); or |
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| (ii) | to register the transfer of any Registered Bond, or part of a Registered Bond, called for partial redemption; or |
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| (iii) | to exchange any Registered Bond (or part thereof) or Bearer Bond called for partial redemption; |
except that a Registered Bond (or part thereof) or Bearer Bond called for partial redemption may he exchanged for a Bearer Bond or Registered Bond, respectively, which is simultaneously surrendered not later than the relevant Record Date.
(e) Formalities free of charge
Such transfer or exchange will be effected without charge subject to (i) the person making such application for transfer or request for exchange paying or procuring the payment of any stamp duty, tax or other governmental charge, (ii) the Registrar being satisfied with the documents of title and identity of the person making the application or request and (iii) such reasonable regulations as the Issuer may from time to time agree with the Trustee, the Principal Paying Agent and the Registrar. The exchange of Bearer Bonds for Registered Bonds and Registered Bonds for Bearer Bonds will be subject to the provisions of all applicable fiscal or other laws and regulations in effect at the time of such exchange.
(f) Registrar
The name of the initial Registrar and its initial specified office are set out at the end of these Terms and Conditions. The Issuer reserves the right, subject to the prior written approval of the Trustee, at any time to vary or terminate the appointment of the Registrar and to appoint another Registrar provided that it will at all times maintain a Registrar approved by the Trustee having a specified office in the United Kingdom. Notice of any termination or appointment and of any changes in specified office will be given to the Bondholders promptly by the Issuer in accordance with Condition 14.
3. STATUS
The Bonds and the Coupons are direct, unconditional and unsecured obligations of the Issuer and rank and will rank pari passu, without any preference among themselves, with all other outstanding unsecured and unsubordinated obligations of the Issuer, present and future, but, in the event of insolvency, only to the extent permitted by applicable laws relating to creditors' rights.
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4. INTEREST
The Bonds bear interest from (and including) 25 March 2001 at the rate of 8.875 per cent. per annum payable (less United Kingdom income tax, if appropriate) annually in arrear on 25 March in each year (each an "Interest Payment Date").
Each Bond or, in the case of the redemption of part only of a Registered Bond, that part only of the Registered Bond will cease to bear interest from its due date for redemption unless, upon due presentation, payment of the principal in respect of the Bond is improperly withheld or refused or unless default is otherwise made in respect of such payment, in which event interest shall continue to accrue as provided in the Trust Deed.
When interest is required to be calculated in respect of a period of less than a full year, it shall be calculated on the basis of a 360 day year consisting of 12 months of 30 days each.
5. PAYMENTS AND EXCHANGE OF TALONS
Payments of principal and interest in respect of each Bearer Bond will be made against presentation and surrender (or, in the case of part payment only, endorsement) of the Bearer Bond, except that payments of interest due on an Interest Payment Date will be made against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant Coupons, in each case at the specified office of any of the Paying Agents.
Payments in respect of each Bearer Bond will be made at the specified office of any Paying Agent, at the option of the holder, by sterling cheque drawn on, or by transfer to a sterling account maintained by the payee with, a bank in the City of London, subject in all cases to any applicable fiscal or other laws and regulations, but without prejudice to the provisions of Condition 8.
Each Bearer Bond should be presented for payment together with all relative unmatured Coupons, failing which the full amount of any relative missing unmatured Coupon (or, in the case of payment not being made in full, that proportion of the full amount of the missing unmatured Coupon which the amount so paid bears to the total amount due) will be deducted from the amount due for payment. Each amount so deducted will be paid in the manner mentioned above against presentation and surrender (or, in the case of part payment only, endorsement) of the relative missing Coupon at any time before the expiry of 10 years after the Relevant Date (as defined in Condition 8) in respect of the relevant Bearer Bond (whether or not the Coupon would otherwise have become void pursuant to Condition 9), or, if later, five years after the date on which the Coupon would have become due, but not thereafter.
If the due date for redemption of any Bearer Bond is not an Interest Payment Date interest accrued on such Bond from (and including) the preceding Interest Payment Date (or, if none, 25 March 2001) up to (but excluding) the date of redemption shall be paid only against presentation and surrender of such Bearer Bond.
Payments of principal in respect of each Registered Bond will be made against presentation and surrender (or, in the case of part payment only, endorsement) of the Registered Bond at the specified office of the Registrar in London by sterling cheque drawn on a bank in the City of London. Payments of interest on each Registered Bond will be made by sterling cheque drawn on a bank in the City of London and mailed on the Business Day in the City of London immediately preceding the relevant due date to the holder (or to the first named of joint holders) of the Registered Bond appearing on the register at the close of business on the seventh day before the relevant due date (the "Record Date") at his address shown on the register on the Record Date. Upon application of the holder to the specified office of the Registrar, not less than three Business Days before the due date for any payment in respect of a Registered Bond, the payment may be made (in the case of payment of principal against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant Registered Bonds as provided above) by transfer on the due date to a sterling account maintained by the payee with a bank in the City of London. Payments in respect of principal and interest on Registered Bonds are subject in all cases to any fiscal or other laws and regulations applicable in the place of payment, but without prejudice to the provisions of Condition 8.
A holder shall be entitled to present a Bond or Coupon for payment only on a Presentation Date and shall not be entitled to any further interest or other payment if a Presentation Date is after the due date.
"Presentation Date" means a day which (subject to Condition 9):
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| (a) | is or falls after the relevant due date but, if the due date is not or was not a Business Day in the City of London, is or falls after the next following such Business Day; and |
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| (b) | is a Business Day in the place of the specified office of the Paying Agent (or the Registrar in the case of payments of principal in respect of Registered Bonds) at which the Bond or Coupon is presented for payment and, in the case of payment by transfer to a sterling account in the City of London as referred to above, in the City of London. |
In this Condition 5, "Business Day" means, in relation to any place, a day on which commercial banks and foreign exchange markets settle payments in that place.
On and after the Interest Payment Date on which the final Coupon comprised in any Coupon sheet matures, the Talon comprised in the Coupon Sheet may be surrendered at the specified office of any Paying Agent in exchange for a further Coupon sheet (including any appropriate further Talon), subject to the provisions of Condition 9. Each Talon shall, for the purposes of these Conditions, be deemed to mature on the Interest Payment Date on which the final Coupon comprised in the relative Coupon sheet matures.
The names of the initial Paying Agents and their initial specified office are set out at the end of these Terms and Conditions. The Issuer reserves the right, subject to the prior written approval of the Trustee, at any time to vary or terminate the appointment of any Paying Agent and to appoint additional or other Paying Agents provided that it will at all times maintain at least two Paying Agents having specified offices in separate European cities approved by the Trustee, one of which, so long as the Bonds are listed on the London Stock Exchange, shall be London or such other place as the London Stock Exchange may approve and one of which shall be outside the United Kingdom. Notice of any termination or appointment and of any changes in specified offices will be given to the Bondholders promptly by the Issuer in accordance with Condition 14.
6. REDEMPTION AND PURCHASE
| (a) | Unless previously redeemed or purchased and cancelled as provided below, the Issuer will redeem the Bonds at their principal amount on 25 March 2026. |
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| (b) | The Issuer may, at any time, having given notice to the Bondholders in accordance with this Condition 6(b) (which notice shall be irrevocable), redeem the Bonds in whole or in part (but if in part, in integral multiples of £1,000,000 in principal amount thereof), at the price which shall be the higher of the following, together with interest accrued up to (but excluding) the date of redemption: |
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| | (ii) | that price (the "Redemption Price"), expressed as a percentage rounded to three decimal places (0.0005 being rounded down), at which the Gross Redemption Yield on the Bonds, if they were to be purchased at such price on the third dealing prior to the publication of the notice of redemption or, in the case of a partial redemption, the first notice of redemption referred to below, would be equal to the Gross Redemption Yield on such dealing day of the 83/4 per cent. Treasury Stock 2017 or of such other United Kingdom Government Stock as the Trustee, with the advice of three leading brokers operating in the gilt-edged market and/or gilt-edged market makers, shall determine to be appropriate (the "Reference Stock") on the basis of the middle market price of the Reference Stock prevailing on such dealing day, as determined by UBS AG, acting through its business group UBS Warburg (or such other person(s) as the Trustee may approve). |
The Gross Redemption Yield on the Bonds and the Reference Stock will be expressed as a percentage and will be calculated on the basis indicated by the Joint Index and Classification Committee of the Institute and Faculty of Actuaries as reported in the Journal of the Institute of Actuaries, Vol. 105, Part 1, 1978, page 18 or on such other basis as the Trustee may approve.
In the case of a partial redemption of Bonds, Bonds (or, as the case may be, parts of Registered Bonds) to be redeemed will be selected individually by lot in such place as the Trustee may approve and in such manner as the Trustee shall deem to be appropriate and fair without involving any part only of a Bearer Bond, not more than 65 days before the date fixed for redemption. In the case of a redemption of all of the Bonds pursuant to this Condition 6(b), notice will be given to the Bondholders by the Issuer in accordance with Condition 14 once not less than 30 nor more than 60 days before the date fixed for redemption. In the case of a partial redemption, notice will be so given twice, first not less than 80 nor
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| | more than 95 days, and secondly not less than 30 nor more than 60 days, before the date fixed for redemption. Each notice will specify that date fixed for redemption and the redemption price and, in the case of a partial redemption, the aggregate principal amount of the Bonds to be redeemed, the serial numbers of Bonds previously called (in whole or in part) for redemption and not presented for payment and the aggregate principal amount of the Bonds which will be outstanding after the partial redemption. In addition, in the case of a partial redemption, the first notice will specify the period during which exchanges or transfers of Bonds may not be made as provided in Condition 2 and the second notice will specify the serial numbers of the Bonds called (in whole or, in the case of Registered Bonds, in part) for redemption. |
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| | Upon the expiry of any such notice period as is referred to above, the Issuer shall be bound to redeem the Bonds to which the notice refers at the relative redemption price applicable at the date of such redemption together with interest accrued to (but excluding) such date. |
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| (c) | If, as a result of any change in, or amendment to, the laws or regulations of the United Kingdom or any political sub-division of, or any authority in, or of, the United Kingdom having power to tax, or any change in the application or official interpretation of such laws or regulations, which change or amendment becomes effective after 28 July 1995, the Issuer has or will become obliged to pay additional amounts as provided or referred to in Condition 8 (and such amendment or change has been evidenced by the delivery by the Issuer to the Trustee (who shall, in the absence of manifest error, accept such certificate and opinion as sufficient evidence thereof) of (i) a certificate signed by two Directors of the Issuer on behalf of the Issuer stating that such amendment or change has occurred (irrespective of whether such amendment or change is then effective), describing the facts leading thereto and stating that such obligation cannot be avoided by the Issuer taking reasonable measures available to it and (ii) an opinion in a form satisfactory to the Trustee of independent legal advisers of recognised standing to whom the Trustee shall have no reasonable objection to the effect that such amendment or change has occurred (irrespective of whether such amendment or change is then effective)), the Issuer may, at its option, having given not less than 30 nor more than 60 days' notice to the Bondholders in accordance with Condition 14 (which notice shall be irrevocable), redeem all, but not some only, in a case where the requirement to pay such additional amounts results solely from the deduction from payments of interest in respect of Bearer Bonds of any United Kingdom income tax required to be withheld or deducted at source, of only the Bearer Bonds and, in any other case, of the Bonds (other than Bonds in respect of which the Issuer shall have given a notice of redemption pursuant to Condition 6(b) prior to any notice being given under this Condition 6(c)), in each case at their principal amount together with interest accrued to the date of redemption, provided that no notice of redemption shall be given earlier than 90 days before the earliest date on which the Issuer would be required to pay such additional amounts were a payment in respect of the Bonds then due. Any notice to Bondholders pursuant to this Condition 6(c) which applies only to Bearer Bonds shall also inform holders of Bearer Bonds of their right to exchange such Bearer Bonds for Registered Bonds pursuant to Condition 2(b) and the period or periods during which such exchange can take place. |
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| | N.B. Holders of Registered Bonds should note that if the Issuer gives a notice under this Condition 6(c) to redeem only the outstanding Bearer Bonds, their right to exchange their Registered Bonds for Bearer Bonds will thereupon cease and there will be no obligation on the Issuer to redeem any Registered Bonds which may be outstanding nor will there be any obligation on the Issuer to maintain in issue any minimum principal amount of Registered Bonds. |
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| | Upon the expiry of any such notice period as is referred to above (and subject as provided above), the Issuer shall be bound to redeem the relevant Bonds at their principal amount together with interest accrued to (but excluding) the redemption date. |
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| (d) | The Issuer or any of its Subsidiaries (as defined in Condition 10) may at any time purchase Bonds in any manner and at any price. If purchases are made by tender, tenders must be available to all Bondholders alike. |
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| (e) | All Bonds which are redeemed by the Issuer will forthwith be cancelled (together, in the case of Bearer Bonds, with all relative unmatured Coupons attached to the Bearer Bonds or surrendered with the Bearer Bonds) and may not be reissued or resold. Bonds purchased by the Issuer or any of its Subsidiaries may be held or reissued or resold or surrendered for cancellation. |
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7. REDEMPTION AT THE OPTION OF BONDHOLDERS
| (a) | (i) | If, at any time while any of the Bonds remains outstanding, a Restructuring Event (as defined below) occurs and prior to the commencement of or during the Restructuring Period (as defined below) an independent financial adviser (as defined below) shall have certified in writing to the Trustee that such Restructuring Event will not be or is not, in its opinion, materially prejudicial to the interests of the Bondholders, the following provisions of this Condition 7 shall cease to have any further effect in relation to such Restructuring Event. |
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| | (ii) | If, at any time while any of the Bonds remains outstanding, a Restructuring Event occurs and (subject to Condition 7(a)(i)): |
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| | | (A) | within the Restructuring Period, either: |
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| | | | (i) | if at the time such Restructuring Event occurs there are Rated Securities (as defined below), a Rating Downgrade (as defined below) in respect of such Restructuring Event also occurs; or |
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| | | | (ii) | if at such time there are no Rated Securities, a Negative Rating Event (as defined below) also occurs; and |
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| | | (B) | an independent financial adviser shall have certified in writing to the Trustee that such Restructuring Event will be or is, in its opinion, materially prejudicial to the interests of the Bondholders (a "Negative Certification"), |
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| | | then, unless at any time the Issuer shall have given a notice under Condition 6(b) in respect of his Bond or Condition 6(c), in each case expiring prior to the Put Date (as defined below), the holder of each Bond will, upon the giving of a Put Notice (as defined below), have the option (the "Put Option") to require the Issuer to redeem or, at the option of the Issuer, purchase (or procure the purchase of) that Bond on the Put Date at its principal amount together with (or, where purchased, together with an amount equal to) interest accrued to (but excluding) the Put Date. |
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| | A Restructuring Event shall be deemed not to be materially prejudicial to the interests of the Bondholders if, notwithstanding the occurrence of a Rating Downgrade, the rating assigned to the Rated Securities by any Rating Agency (as defined below) is subsequently increased to an investment grade rating (BBB—/ Baa3 or their respective equivalents for the time being, or better) prior to any Negative Certification being issued. |
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| | Any certification by an independent financial adviser as aforesaid as to whether or not, in its opinion, any Restructuring Event will be or is materially prejudicial to the interests of the Bondholders shall, in the absence of manifest error, be conclusive and binding on the Trustee, the Issuer and the Bondholders. For the purposes of this Condition 8, an "independent financial adviser" means a financial adviser appointed by the Issuer and approved by the Trustee (such approval not to be unreasonably withheld or delayed) or, if the Issuer shall not have appointed such an adviser within 21 days after becoming aware of the occurrence of such Restructuring Event and the Trustee is indemnified to its satisfaction against the costs of such adviser, appointed by the Trustee following consultation with the Issuer. |
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| (b) | Promptly upon the Issuer becoming aware that a Put Event (as defined below) has occurred, and in any event not later than 14 days after the occurrence of a Put Event, the Issuer shall, and at any time upon the Trustee becoming similarly so aware the Trustee may, and if so requested by the holders of at least one-quarter in principal amount of the Bonds then outstanding shall, give notice (a "Put Event Notice") to the Bondholders in accordance with Condition 14 specifying the nature of the Put Event and the procedure for exercising the Put Option. |
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| (c) | To exercise the Put Option, the holder of a Bond must deliver such Bond to the specified office of any Paying Agent, on a day which is a Business Day (as defined in Condition 5) in the City of London and in the place of such specified office falling within the period (the "Put Period") commencing on the date on which a Put Event Notice is given and ending on the 45th day thereafter, accompanied by a duly completed and signed notice of exercise in the form (for the time being current) obtainable from any specified office of any Paying Agent (a "Put Notice") and in which the holder may specify a bank account complying with the requirements of Condition 5 to which payment is to be made under this |
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| | Condition 7. Each Bearer Bond should be delivered together with all Coupons appertaining thereto maturing after the day (the "Put Date") being the fifteenth day after the date of expiry of the Put Period, failing which an amount equal to the face value of any such missing Coupon will be deducted from the amount due for payment. Each amount so deducted will be paid in the manner provided in Condition 5 against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant missing Coupon at any time before the expiry of 10 years after the Relevant Date in respect of the relevant Bearer Bond (whether or not the Coupon would otherwise have become void pursuant to Condition 9) or, if later, five years after the date on which such Coupon would have become due, but not thereafter. The Paying Agent to which such Bond and Put Notice are delivered shall issue to the Bondholder concerned a non-transferable receipt in respect of the Bond so delivered. Payment in respect of any Bond so delivered shall be made, if the holder duly specifies a bank account in the Put Notice to which payment is to be made on the Put Date, by transfer to that bank account and, in every other case, on or after the Put Date in each case against presentation and surrender or (as the case may be) endorsement of such receipt at any specified office of any Paying Agent, subject in any such case as provided in Condition 5. A Put Notice, once given, shall be irrevocable. For the purposes of Conditions 1, 9, 10, 11, 13 and 15, receipts issued pursuant to this Condition 7 shall be treated as if they were Bonds. The Issuer shall redeem or, at the option of the Issuer, purchase (or procure the purchase of) the relevant Bond on the applicable Put Date unless previously redeemed or purchased. |
(d) For the purposes of these Terms and Conditions:
| | (i) | A "Negative Rating Event" shall be deemed to have occurred if (A) the Issuer does not either prior to or not later than 14 days after the date of a Negative Certification in respect of the relevant Restructuring Event, seek, and thereupon use all reasonable endeavours to obtain, a rating of the Bonds or any other unsecured and unsubordinated debt of the Issuer (or of any Subsidiary of the Issuer and which is guaranteed on an unsecured and unsubordinated basis by the Issuer) having an initial maturity of five years or more from a Rating Agency or (B) if it does so seek and use such endeavours, it is unable, as a result of such Restructuring Event, to obtain such a rating of at least investment grade (BBB—/Baa3, or their respective equivalents for the time being or better). |
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| | (ii) | A "Put Event" occurs on the date of the last to occur of (aa) a Restructuring Event, (bb) either a Rating Downgrade or, as the case may be, a Negative Rating Event and (cc) the relevant Negative Certification. |
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| | (iii) | "Rating Agency" means Standard & Poor's Ratings Services, a Division of the McGraw-Hill Companies Inc. or any of its subsidiaries and their successors ("Standard & Poor's") or Moody's Investors Service Limited or any of its subsidiaries and their successors ("Moody's") or any rating agency substituted for either of them (or any permitted substitute of them) by the Issuer from time to time with the prior written approval of the Trustee (such approval not to be unreasonably withheld or delayed). |
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| | (iv) | A "Rating Downgrade" shall be deemed to have occurred in respect of a Restructuring Event if the then current rating assigned to the Rated Securities by any Rating Agency (whether provided by a Rating Agency at the invitation of the Issuer or by its own volition) is withdrawn or reduced from an investment grade rating (BBB—Baa3, or their respective equivalents for the time being, or better) to a non-investment grade rating (BB+Ba1, or their respective equivalents for the time being, or worse) or, if the Rating Agency shall then have already rated the Rated Securities below investment grade (as described above), the rating is lowered one full rating category. |
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| | (v) | "Rated Securities" means the Bonds, if at any time and for so long as they shall have a rating from a Rating Agency, and otherwise any other unsecured and unsubordinated debt of the Issuer (or of any Subsidiary of the Issuer and which is guaranteed on an unsecured and unsubordinated basis by the Issuer) having an initial maturity of five years or more which is rated by a Rating Agency. |
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| | (vi) | "Restructuring Event" means the occurrence of any one or more of the following events: |
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| | | (A) | (aa) the Secretary of State for Trade and Industry (or any successor) giving the Issuer written notice of revocation of the Licence provided that the giving of notice pursuant to paragraph 3 of Part 1 of the PES Licence shall not be deemed to constitute the revocation of the PES Licence and the giving of notice pursuant to the equivalent provision in the Distribution Licence shall |
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| | | | not be deemed to constitute the revocation of the Distribution Licence or (bb) the Issuer agreeing in writing with the Secretary of State for Trade and Industry (or any successor) to any revocation or surrender of the Licence or (cc) any legislation (whether primary or subordinate) being enacted terminating or revoking the Licence, except in any such case in circumstances where a licence or licences on substantially no less favourable terms is or are granted to the Issuer or a wholly-owned Subsidiary of the Issuer (the "Relevant Subsidiary") and in the case of such Relevant Subsidiary at the time of such grant it either executes in favour of the Trustee an unconditional and irrevocable guarantee in respect of the Bonds in such form as the Trustee may approve (such approval not to be unreasonably withheld or delayed) or becomes the primary obligor under the Bonds in accordance with Condition 12; or |
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| | | (B) | any modification (other than a modification which is of a formal, minor or technical nature) is made to the terms and conditions of the Licence unless two Directors of the Issuer have certified in good faith to the Trustee that the modified terms and conditions are not materially less favourable to the business of the Issuer provided that any modifications arising from a periodic review shall not constitute a Restructuring Event unless it results in the credit rating assigned to the short term debt of the Issuer by Standard & Poor's or Moody's being either (i) downgraded to a "speculative grade" rating "B" or below in the case of Standard & Poor's or to "not prime" or worse in the case of Moody's or (ii) withdrawn; or |
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| | | (C) | any legislation (whether primary or subordinate) is enacted which removes, qualifies or amends (other than an amendment which is of a formal, minor or technical nature) the duties of the Secretary of State for Trade and Industry (or any successor) and/or the Gas and Electricity Markets Authority (or any successor) under Section 3(A) of the Electricity Act 1989, unless two Directors of the Issuer have certified in good faith to the Trustee that such removal, qualification or amendment does not have a materially adverse effect on the financial condition of the Issuer; |
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| | provided that the replacement of the PES Licence with separate distribution and supply licences pursuant to the provisions of Schedule 7 of the Utilities Act 2000 (including without limitation under a scheme under part II of such Schedule 7) and any notice, agreement, legislation, direction, scheme or modification relating to the implementation of the new regime contained in the Utilities Act 2000 shall not constitute a Restructuring Event. |
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| | (vii) | "Restructuring Period" means: |
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| | | (A) | if at the time a Restructuring Event occurs there are Rated Securities, the period of 90 days starting from and including the day on which that Restructuring Event occurs; or |
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| | | (B) | if at the time a Restructuring Event occurs there are no Rated Securities, the period starting from and including the day on which that Restructuring Event occurs and ending on the day 90 days following the later of (aa) the date on which the Issuer shall seek to obtain a rating pursuant to Condition 7(d)(i) prior to the expiry of the 14 days referred to in the definition of Negative Rating Event and (bb) the date on which a Negative Certification shall have been given to the Issuer in respect of that Restructuring Event. |
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| | (viii) | A Rating Downgrade or a Negative Rating Event or a non-investment grade rating shall be deemed not to have occurred as a result or in respect of a Restructuring Event if the Rating Agency making the relevant reduction in rating or, where applicable, declining to assign a rating of at least investment grade as provided in this Condition 7 does not announce or publicly confirm or inform the Trustee in writing at its request that the reduction or, where applicable, declining to assign a rating of at least investment grade was the result, in whole or in part, of any event or circumstance comprised in or arising as a result of the applicable Restructuring Event. |
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| | The Trust Deed provides that the Trustee is under no obligation to ascertain whether a Restructuring Event, a Negative Rating Event or any event which could lead to the occurrence of or could constitute a Restructuring Event has occurred and until it shall have actual knowledge or express notice pursuant to the Trust Deed to the contrary, the Trustee may assume that no Restructuring Event, Negative Rating Event or other such event has occurred. |
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8. TAXATION
All payment in respect of the Bonds (other than payments of interest in respect of Registered Bonds which will be made subject to the deduction of any United Kingdom income tax required to be withheld or deducted at source) by the Issuer shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature ("Taxes") imposed or levied by or on behalf of the United Kingdom, or any political sub-division of, or any authority in, or of, the United Kingdom having power to tax, unless the withholding or deduction of the Taxes is required by law. In that event (other than where the deduction or withholding is in respect of Registered Bonds as aforesaid), the Issuer will pay such additional amounts as may be necessary in order that the net amounts received by the Bondholders and Couponholders after the withholding or deduction shall equal the respective amounts which would have been receivable in respect of the Bonds or, as the case may be, Coupons in the absence of the withholding or deduction; except that no additional amounts shall be payable in relation to any payment in respect of any Bond or Coupon:
| (a) | to, or to a third party on behalf of, a holder who is liable to the Taxes in respect of the Bond or Coupon by reason of his having some connection with the United Kingdom other than the mere holding of the Bond or Coupon; or |
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| (b) | where the Coupon is presented for payment in the United Kingdom; or |
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| (c) | presented for payment more than 30 days after the Relevant Date except to the extent that a holder would have been entitled to additional amounts on presenting the same for payment on the last day of such period of 30 days; or |
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| (d) | to, or to a third party on behalf of, a holder who would not be liable or subject to the withholding or deduction by making a declaration of non-residence or other similar claim for exemption to the relevant tax authority. |
As used herein, "Relevant Date" means the date on which the payment first becomes due but, if the full amount of the money payable has not been received in London by the Principal Paying Agent or the Trustee on or before the due date, it means the date on which, the full amount of the money having been so received, notice to the effect shall have been duly given to the Bondholders by the Issuer in accordance with Condition 14.
Any reference in these Terms and Conditions to any amounts in respect of the Bonds shall he deemed also to refer to any additional amounts which may be payable under this Condition or under any undertakings given in addition to, or in substitution for, this Condition pursuant to the Trust Deed.
9. PRESCRIPTION
Bonds (whether in bearer or registered form) and Coupons (which for this purpose shall not include Talons) will become void unless presented for payment within periods of 10 years (in the case of principal) and five years (in the case of interest) from the Relevant Date in respect of the Bonds or, as the case may be, the Coupons, subject to the provisions of Conditions 5 or 7(c). There shall not be included in any Coupon sheet issued upon exchange of a Talon any Coupon which would be void upon issue under this Condition or Conditions 5 or 7(c).
10. EVENTS OF DEFAULT
The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in principal amount of the Bonds then outstanding or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Bondholders shall (subject in each case to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (b), (c), (e), (f), (g) and (h) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Bondholders), give notice to the Issuer that the Bonds are, and they shall accordingly thereby forthwith become, immediately due and repayable at their principal amount together with accrued interest (as provided in the Trust Deed) if any of the following events (each an "Event of Default") shall have occurred (unless such Event of Default has been remedied to the satisfaction of the Trustee):
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| (a) | if default is made for a period of 14 days or more in the payment of any principal or the purchase price due in respect of any Bond pursuant to Condition 7 or 21 days or more in the payment of any interest due in respect of the Bonds or any of them; or |
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| (b) | if the Issuer fails to perform or observe any of its other obligations, covenants, conditions or provisions under the Bonds or the Trust Deed and (except where the Trustee shall have certified to the Issuer in writing that it considers such failure to be incapable of remedy in which case no such notice or continuation as is hereinafter mentioned will he required) such failure continues for the period of 60 days (or such longer period as the Trustee may in its absolute discretion permit) next following the service by the Trustee on the Issuer of notice requiring the same to be remedied; or |
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| (c) | if (i) any other indebtedness for borrowed money of the Issuer or any Principal Subsidiary becomes due and repayable prior to its stated maturity by reason of an event of default (howsoever described) or (ii) any such indebtedness for borrowed money is not paid when due or, as the case may be, within any applicable grade period (as originally provided) or (iii) the Issuer or any Principal Subsidiary fails to pay when due (or, as the case may be, within any originally applicable grace period) any amount payable by it under any present or future guarantee for, or indemnity in respect of, any indebtedness for borrowed money of any person or (iv) any security given by the Issuer or any Principal Subsidiary for any indebtedness for borrowed money of any person or any guarantee or indemnity of indebtedness for borrowed money of any person becomes enforceable by reason of default in relation thereto and steps are taken to enforce such security save in any such case where there is a bona fide dispute as to whether the relevant indebtedness for borrowed money or any such guarantee or indemnity as aforesaid shall he due and payable, provided that the aggregate amount of the relevant indebtedness for borrowed money in respect of which any one or more of the events mentioned above in this sub-paragraph (c) has or have occurred equals or exceeds £20,000,000 or its equivalent in other currencies (as determined by the Trustee) or, if greater, 3 per cent. of the Capital and Reserves, and for the purposes of this subparagraph (c), "indebtedness for borrowed money" shall exclude Project Finance Indebtedness; or |
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| (d) | if any order shall be made by any competent court or any resolution shall be passed for the winding up or dissolution of the Issuer, save for the purposes of amalgamation, merger, consolidation, reorganisation, reconstruction or other similar arrangement on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Bondholders; or |
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| (e) | if any order shall he made by any competent court or any resolution shall be passed for the winding up or dissolution of a Principal Subsidiary, save for the purposes of amalgamation, merger, consolidation, reorganisation, reconstruction or other similar arrangement (i) not involving or arising out of the insolvency of such Principal Subsidiary and under which all the surplus assets of such Principal Subsidiary are transferred to the Issuer or any of its other Subsidiaries or (ii) the terms of which have previously been approved in writing by the Trustee or by an Extraordinary Resolution of the Bondholders; or |
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| (f) | if the Issuer or any Principal Subsidiary shall cease to carry on the whole or substantially the whole of its business, save in each case for the purposes of amalgamation, merger, consolidation, reorganisation, reconstruction or other similar arrangement (i) not involving or arising out of the insolvency of the Issuer or such Principal Subsidiary and under which all or substantially all of its assets are transferred to another member of the Group or (ii) under which all or substantially all of its assets are transferred to a third party or parties (whether associates or not) for full consideration by the Issuer or a Principal Subsidiary on an arm's length basis or (iii) where the transferee is or immediately upon such transfer becomes a Principal Subsidiary or (iv) the terms of which have previously been approved in writing by the Trustee or by an Extraordinary Resolution of the Bondholders, provided that if the Issuer shall cease to hold or shall transfer the Licence other than where the Issuer ceases to hold the PES Licence (or the PES Licence has effect as separate distribution and supply licences) pursuant (in either case) to the provisions of Schedule 7 of the Utilities Act 2000 (including without limitation under a scheme under part II of such Schedule 7) it shall he deemed to have ceased to carry on the whole or substantially the whole of its business (and none of exceptions (i) to (iii) shall apply) unless the transferee assumes all the Issuer's obligations under the Bonds and the Trust Deed as primary obligor or gives a guarantee in form and substance acceptable to the Trustee in respect of the obligations of the Issuer under the Bonds and the Trust Deed; or |
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| (g) | if the Issuer or any Principal Subsidiary shall suspend or shall threaten to suspend payment of its debts generally or shall he declared or adjudicated by a competent court to be unable, or shall admit in writing its inability, to pay its debts (within the meaning of Section 123(1) or (2) of the Insolvency Act 1986) as they fall due, or shall be adjudicated or found insolvent by a competent court or shall enter into any composition or other similar arrangement with its creditors under Section 1 of the Insolvency Act 1986; or |
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| (h) | if a receiver, administrative receiver, administrator or other similar official shall be appointed in relation to the Issuer or any Principal Subsidiary or in relation to the whole or a substantial part of the undertaking or assets of any of them or a distress, execution or other process shall be levied or enforced upon or sued out against, or an encumbrancer shall take possession of, the whole or a substantial part of the assets of any of them and in any of the foregoing cases it or he shall not be paid out or discharged within 90 days (or such longer period as the Trustee may in its absolute discretion permit). |
For the purposes of sub-paragraph (g) above, Section 123(1)(a) of the Insolvency Act 1986 shall have effect as if for "£750" there was substituted "£250,000" or such higher figure as the Gas and Electricity Markets Authority (or any successor) may from time to time determine by notice in writing to the Secretary of State for Trade and Industry (or any successor) and the Issuer.
Neither the Issuer nor any Principal Subsidiary shall be deemed to be unable to pay its debts for the purposes of sub-paragraph (g) above if any such demand as is mentioned in Section 123(1)(a) of the Insolvency Act 1986 is being contested in good faith by the Issuer or the relevant Principal Subsidiary with recourse to all appropriate measures and procedures or if any such demand is satisfied before the expiration of such period as may be stated in any notice given by the Trustee under the first paragraph of this Condition 10.
For the purposes of these Terms and Conditions:
| (A) | "Principal Subsidiary" at any time shall mean a Subsidiary of the Issuer (not being an Excluded Subsidiary or any other Subsidiary of the Issuer more than 70 per cent. of whose indebtedness for borrowed money is Project Finance Indebtedness): |
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| | (i) | whose (a) net profits before tax or (b) gross assets represent 20 per cent. or more of the consolidated net profits before tax of the Group or consolidated gross assets of the Group respectively, in each case as calculated by reference to the then latest audited financial statements of such Subsidiary (consolidated in the case of a company which itself has Subsidiaries and which, in the normal course, prepares consolidated accounts) and the then latest audited consolidated financial statements of the Group; or |
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| | (ii) | to which is transferred all or substantially all of the business, undertaking and assets of a Subsidiary of the Issuer which immediately prior to such transfer is a Principal Subsidiary, whereupon the transferor Subsidiary shall immediately cease to be a Principal Subsidiary and the transferee Subsidiary shall cease to be a Principal Subsidiary under the provisions of this sub-paragraph (ii) (but without prejudice to the provisions of sub-paragraph (i) above), upon publication of its next audited financial statements; |
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| | all as more fully defined in the Trust Deed. |
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| | A report by the Auditors that in their opinion a Subsidiary of the Issuer is or is not or was or was not at any particular time or throughout any specified period a Principal Subsidiary shall, in the absence of manifest error, he conclusive and binding on all parties; |
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| (B) | "Capital and Reserves" means the aggregate of: |
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| (i) | the amount paid up or credited as paid up on the share capital of the Issuer; and |
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| (ii) | the total of the capital, revaluation and revenue reserves of the Group, including any share premium account, capital redemption reserve and credit balance on the profit and loss account but excluding sums set aside for taxation and amounts attributable to outside shareholders in Subsidiary Undertakings (as defined below) and deducting any debit balance on the profit and loss account, |
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| | all as shown in the then latest audited consolidated balance sheet of the Group prepared in accordance with the historical cost convention (as modified by the revaluation of certain fixed assets) for the purposes of the Companies Act 1985, but adjusted as may he necessary in respect of any variation in the paid up share capital or share premium account of the Issuer since the date of that balance sheet and further adjusted as may be necessary to reflect any change since the date of that balance sheet in the Subsidiary Undertakings comprising the Group and/or as the Auditors (as defined in the Trust Deed) may consider appropriate. |
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| | A report by the Auditors as to the amount of the Capital and Reserves at any given time shall, in the absence of manifest error, be conclusive and binding on all parties; |
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| (C) | "Excluded Subsidiary" means any Subsidiary of the Issuer (other than a Licensed Subsidiary): |
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| | (i) | which is a company whose principal assets and business are constituted by the ownership, acquisition, development and/or operation of an asset whether directly or indirectly; |
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| | (ii) | none of whose indebtedness for borrowed money in respect of the financing of such ownership, acquisition, development and/or operation of an asset is subject to any recourse whatsoever to any member of the Group (other than the Subsidiary itself or another Excluded Subsidiary) in respect of the repayment thereof, except as expressly referred to in paragraph (G)(ii)(c); and |
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| | (iii) | which has been designated as such by the Issuer by written notice to the Trustee, provided that the Issuer may given written notice to the Trustee at any time that any Excluded Subsidiary is no longer an Excluded Subsidiary, whereupon it shall cease to be an Excluded Subsidiary; |
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| (D) | "Group" means the Issuer and the Subsidiary Undertakings; |
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| (E) | "Subsidiary Undertaking" shall have the meaning given to it by Section 258 of the Companies Act 1985 (but shall exclude any undertakings (as defined in the Companies Act 1985) whose accounts are not included in the then latest published audited consolidated accounts of the Issuer, nor (in the case of an undertaking which has first become a subsidiary undertaking of a member of the Group since the date as at which any such audited accounts were prepared) would its accounts have been so included or consolidated if it had become so on or before that date); |
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| (F) | "indebtedness for borrowed money" means any present or future indebtedness (whether being principal, premium, interest or other amounts) for or in respect of (i) money borrowed, (ii) liabilities under or in respect of any acceptance credit or (iii) any notes, bonds, debentures, debenture stock, loan stock or other securities offered, issued or distributed whether by way of public offer, private placing, acquisition, consideration or otherwise and whether issued for cash or in whole or in part for a consideration other than cash; |
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| (G) | "Project Finance Indebtedness" means any indebtedness for borrowed money to finance the ownership, acquisition, development and/or operation of an asset; |
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| (i) | which is incurred by an Excluded Subsidiary; or |
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| (ii) | in respect of which the person or persons to whom any such indebtedness for borrowed money is or may be owed by the relevant borrower (whether or not a member of the Group) has or have no recourse whatsoever to any member of the Group (other than an Excluded Subsidiary) for the repayment thereof other than: |
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| | | (a) | recourse to such borrower for amounts limited to the cash flow or net cash flow (other than historic cash flow or historic net cash flow) from such asset; and/or |
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| | | (b) | recourse to such borrower for the purpose only of enabling amounts to be claimed in respect of such indebtedness for borrowed money in an enforcement of any encumbrance given by such borrower over such asset or the income, cash flow or other proceeds deriving therefrom (or given by any shareholder or the like in the borrower over its shares or the like in the capital of the borrower) to secure such indebtedness for borrowed money, provided that (aa) the extent of such recourse to such borrower is limited solely to the amount of any recoveries made on any such enforcement, and (bb) such person or persons are not entitled, by virtue of |
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| | | | any right or claim arising out of or in connection with such indebtedness for borrowed money, to commence proceedings for the winding up or dissolution of the borrower or to appoint or procure the appointment of any receiver, trustee or similar person or officer in respect of the borrower or any of its assets (save for the assets the subject of such encumbrance); and/or |
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| | | (c) | recourse to such borrower generally, or directly or indirectly to a member of the Group, under any form of assurance, undertaking or support, which recourse is 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 being a payment obligation or an obligation to procure payment by another or an indemnity in respect thereof or any obligation to comply or to procure compliance by another with any financial ratios or other tests of financial condition) by the person against whom such recourse is available; |
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| (H) | "Subsidiary" means a subsidiary within the meaning of Section 736 of the Companies Act, 1985; |
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| (I) | "Licensed Subsidiary" means any Subsidiary of the Issuer which holds a public electricity supply licence granted under the Electricity Act 1989 or a distribution licence granted under Section 6(1)(c) of the Electricity Act 1989 as amended by Section 30 of the Utilities Act 2000; |
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| (J) | "Licence" means the PES Licence until such time as the Secretary of State for Trade and Industry (or any successor) makes a scheme under Section 13(2)(a) of Schedule 7 of the Utilities Act 2000 for the PES Licence to have effect as if it were a distribution licence and a supply licence granted under Section 6(1)(c) and 6(1)(d) respectively of the Electricity Act 1989 as amended by Section 30 of the Utilities Act 2000 from which point on it means the Distribution Licence; |
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| (K) | "PES Licence" means the public electricity supply licence granted by the Secretary of State for Energy to the Issuer under the Electricity Act 1989 in relation to its authorised area and excluding any second tier supply licence; and |
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| (L) | "Distribution Licence" means either the distribution licence granted to the Issuer under Section 6(1)(c) of the Electricity Act 1989 as amended by Section 30 of the Utilities Act 2000 or the licence of the Issuer having effect as if it were a distribution licence granted under Section 6(1)(c) of the Electricity Act 1989 as amended by Section 30 of the Utilities Act 2000, as appropriate. |
11. ENFORCEMENT
The Trustee may at any time, at its discretion and without notice, take such proceedings against the Issuer as it may think fit to enforce the provisions of the Trust Deed, the Bonds and the Coupons but it shall not be bound to take any proceedings or any other action in relation to the Trust Deed, the Bonds or the Coupons unless (a) it shall have been so directed by an Extraordinary Resolution of the Bondholders or so requested in writing by the holders of at least one-quarter in principal amount of the Bonds then outstanding, and (b) it shall have been indemnified to its satisfaction. No Bondholder or Couponholder shall be entitled to proceed directly against the Issuer unless the Trustee, having become bound so to proceed, fails so to do within a reasonable period and such failure shall be continuing.
12. SUBSTITUTION
The Trustee may, without the consent of the Bondholders or Couponholders, agree with the Issuer to the substitution in place of the Issuer (or of any previous substitute under this Condition) as the principal debtor under the Bonds, the Coupons and the Trust Deed of any Subsidiary of the Issuer, subject to (a) the Bonds being unconditionally and irrevocably guaranteed by the Issuer (save where the Issuer has transferred the Licence to the substituted Subsidiary), (b) the Trustee being satisfied that the interests of the Bondholders will not he materially prejudiced by the substitution, and (c) certain other conditions set out in the Trust Deed being complied with.
| 13. REPLACEMENT OF BONDS AND COUPONS |
Should any Bond or Coupon be lost, stolen, mutilated, defaced or destroyed, it may be replaced at the specified office of the Paying Agent in London, in the case of a Bearer Bond or Coupon, or the Registrar, in the case of a Registered Bond, upon payment by the claimant of the expenses incurred in connection with the replacement and on such terms as to evidence and indemnity as the Issuer may reasonably require. Mutilated or defaced Bonds or Coupons must he surrendered before replacements will be issued.
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14. NOTICES
Notices to holders of Registered Bonds will he mailed to them at their respective addresses in the Register and deemed to have been given on the fourth day (excluding Sundays) after the date of mailing, provided that, if at any time by reason of suspension or curtailment (or expected suspension or curtailment) of postal services within the United Kingdom or elsewhere, the Issuer is unable effectively to give notice to holders of Registered Bonds through the post, notices to holders of Registered Bonds will be valid if given in the same manner as other notices set out below.
Other notices to the Bondholders (including notices to holders of Bearer Bonds) will be valid if published in a leading English language daily newspaper published in London or such other English language daily newspaper with general circulation in Europe as the Trustee may approve. Any notice shall be deemed to have been given on the date of publication or, if so published more than once, on the date of the first publication. It is expected that publication will normally be made in the Financial Times. If publication as provided above is not practicable, notice will be given in such other manner, and shall be deemed to have been given on such date, as the Trustee may approve.
Couponholders will be deemed for all purposes to have notice of the contents of any notice given to the Noteholders in accordance with this Condition.
15. MEETINGS OF BONDHOLDERS, MODIFICATION, WAIVER AND AUTHORISATION
| (a) | The Trust Deed contains provisions for convening meeting of the Bondholders to consider any matter affecting their interests, including the modification by Extraordinary Resolution of these Terms and Conditions or the provisions for the Trust Deed. The quorum at any meeting for passing an Extraordinary Resolution will be one or more persons present holding or representing a clear majority in principal amount of the Bonds for the time being outstanding, or at any adjourned such meeting one or more persons present whatever the principal amount of the Bonds held or represented by him or them, except that at any meeting, the business of which includes the modification of certain of the provisions of these Terms and Conditions and certain of the provisions of the Trust Deed, the necessary quorum for passing an Extraordinary Resolution will be one or more persons present holding or representing not less than two-thirds, or at any adjourned such meeting not less than one-third, of the principal amount of the Bonds for the time being outstanding. An Extraordinary Resolution passed at any meeting of the Bondholders will be binding on all Bondholders, whether or not they are present at the meeting, and on all Couponholders. |
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| (b) | The Trustee may agree, without the consent of the Bondholders or Couponholders, to any modification (subject to certain exceptions) of, or to the waiver or authorisation of any breach or proposed breach of, any of these Terms and Conditions or any of the provisions of the Trust Deed which is not, in the opinion of the Trustee, materially prejudicial to the interests of the Bondholders or to any modification which is of a formal, minor or technical nature or to correct a manifest error. |
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| (c) | In connection with the exercise by it of any of its trusts, powers, authorities or discretions (including, without limitation, any modification, waiver, authorisation or substitution), the Trustee shall have regard to the interests of the Bondholders as a class and, in particular but without limitation, shall not have regard to the consequences of the exercise of its trusts, powers, authorities or discretions for individual Bondholders and Couponholders resulting from their being for any purpose domiciled or resident in or otherwise connected with, or subject to the jurisdiction of, any particular territory and the Trustee shall not be entitled to require, nor shall any Bondholder or Couponholder be entitled to claim, from the Issuer, the Trustee or any other person any indemnification or payment in respect of any tax consequences of any such exercise upon individual Bondholders or Couponholders except to the extent already provided for in Condition 8 and/or any undertaking given in addition to, or in substitution for, Condition 8 pursuant to the Trust Deed. |
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| (d) | Any modification, waiver or authorisation shall he binding on the Bondholders and the Couponholders and, unless the Trustee agrees otherwise, any modification shall be notified by the Issuer to the Bondholders as soon as practicable thereafter in accordance with Condition 14. |
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| 16. INDEMNIFICATION OF THE TRUSTEE |
The Trust Deed contains provisions for the indemnification of the Trustee and for its relief from responsibility, including provisions relieving it from taking action unless indemnified to its satisfaction.
The Issuer is at liberty from time to time, without the consent of the Bondholders or Couponholders, to create and issue further bonds or notes (whether in bearer or registered form) either (a) ranking pari passu in all respects (or in all respects save for the first payment of interest thereon) and so that the same shall be consolidated and form a single series with the outstanding bonds or notes of any series (including the Bonds) constituted by the Trust Deed or any supplemental deed or (b) upon such terms as to ranking, interest, conversion, redemption and otherwise as the Issuer may determine at the time of the issue. Any further bonds or notes which are to form a single series with the outstanding bonds or notes of any series (including the Bonds) constituted by the Trust Deed or any supplemental deed shall, and any other further bonds or notes may (with the consent of the Trustee), be constituted by a deed supplemental to the Trust Deed. The Trust Deed contains provisions for convening a single meeting of the Bondholders and the holders of bonds or notes of other series in certain circumstances where the Trustee so decides.
The Bonds confer no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Bonds, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
The Trust Deed, the Bonds and the Coupons are governed by, and will be construed in accordance with, English law.
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PRINCIPAL PAYING AGENT
Citibank, N.A.
P.O. Box 18055
5 Carmelite Street
London EC4Y 0PA
OTHER PAYING AGENTS
Citibank International plc
c/- The Bank of New York
Avenue des Arts 35
Kunstlaan
B-1040 Brussels
BNP Paribas S.A.
10A Boulevard Royal
L-2093 Luxembourg
and/or such other or further Principal Paying Agent and other Paying Agents and/or specified offices as may from time to time be appointed by the Issuer with the approval of the Trustee and notice of which has been given to the Bondholders.
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| THE COMMON SEAL of | ) |
| NORWEB plc | ) |
| was affixed to this deed` | ) |
| in the presence of | ) |
…………………………………
Director
| THE COMMON SEAL of | ) |
| THE LAW DEBENTURE TRUST | ) |
| CORPORATION p.l.c. | ) |
| was affixed to this deed | ) |
| in the presence of: | ) |
…………………………………
Director
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| | | | | | | _______________________________________ |
| | | | | | | |
| | | | | | | SECOND SUPPLEMENTAL TRUST DEED |
| | | | | | | |
| | | | | | | 8.875 per cent. Bonds 2026 |
| | | | | | | _______________________________________ |
| | | | | | | |
DATED 20TH DECEMBER, 2001
UNITED UTILITIES ELECTRICITY PLC
(formerly NORWEB plc)
- and -
THE LAW DEBENTURE TRUST CORPORATION p.l.c.
_______________________________________
THIRD SUPPLEMENTAL TRUST DEED
constituting
£50,000,000
8.875 per cent. Bonds 2026
_______________________________________
For the Issuer:
SLAUGHTER AND MAY
35 Basinghall Street
London EC2V 5DB
For the Trustee:
ALLEN & OVERY
One New Change
London EC4M 9QQ
CONTENTS
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THIS THIRD SUPPLEMENTAL TRUST DEED is made on 20th December, 2001 BETWEEN UNITED UTILITIES ELECTRICITY PLC (formerly NORWEB plc), a company incorporated under the laws of England and Wales with company number 2366949, whose registered office is at Dawson House, Great Sankey, Warrington WA5 3LW, England (hereinafter called the "Issuer") of the one part and THE LAW DEBENTURE TRUST CORPORATION p.l.c., a company incorporated under the laws of England and Wales with company number 1675231, whose registered office is at Fifth Floor, 100 Wood Street, London EC2V 7EX, England (hereinafter called the "Trustee", which expression shall, wherever the context so admits, include such company and any other trustee or trustees for the time being of these presents) of the other part.
WHEREAS:
| (1) | This Third Supplemental Trust Deed is supplemental to: |
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| | (A) | the Trust Deed dated 3rd August, 1995 (the "Original Trust Deed") made between the Issuer and the Trustee and constituting the £200,000,000 8.875 per cent. Bonds 2026 of the Issuer (the "Original Bonds"); |
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| | (B) | the First Supplemental Trust Deed dated 2nd July, 2001 (the "First Supplemental Trust Deed") made between the Issuer and the Trustee modifying the Original Trust Deed; and |
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| | (C) | the Second Supplemental Trust Deed dated 6th July, 2001 (the "Second Supplemental Trust Deed" and, together with the Original Trust Deed and the First Supplemental Trust Deed, the "Subsisting Trust Deeds") made between the Issuer and the Trustee and constituting the £100,000,000 8.875 per cent. Bonds 2026 of the Issuer. |
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| (2) | By virtue of Clause 2(D)(i) of the Original Trust Deed the Issuer shall be at liberty from time to time (but subject always to the provisions of these presents) without the consent of the Holders or Couponholders to create and issue further bonds or notes (whether in bearer or registered form) either (a) ranking pari passu in all respects (or in all respects save for the first payment of interest thereon) and so that the same shall be consolidated and form a single series with the Original Bonds and/or the Further Securities of any series or (b) upon such terms as to ranking, interest, conversion, redemption and otherwise as the Issuer may at the time of the issue thereof determine. |
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| (3) | By resolutions of the Board of Directors of the Issuer passed on 13th December, 2001 the Issuer has resolved to issue £50,000,000 8.875 per cent. Bonds 2026 of the Issuer to be constituted by this Third Supplemental Trust Deed and to be consolidated and form a single series with both the Original Bonds and the £100,000,000 8.875 per cent. Bonds 2026 of the Issuer constituted by the Second Supplemental Trust Deed from (and including) 30th January, 2002. |
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| (4) | By virtue of Clause 18(B) of the Original Trust Deed the Trustee may, without the consent or sanction of the Holders or Couponholders, at any time and from time to time concur with the Issuer in making any modification (i) to these presents (other than the proviso to paragraph 5 of the Fourth Schedule to the Original Trust Deed or any matters referred to in that proviso) which in the opinion of the Trustee it may be proper to make provided that the Trustee is of the opinion that such modification will not be materially prejudicial to the interests of the Holders or (ii) to these presents if, in the opinion of the Trustee, such modification is of a formal, minor or technical nature or to correct a manifest error. |
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| (5) | The Trustee has concurred with the Issuer that the Trust Deed shall be modified in the manner hereinafter appearing and the Trustee, as evidenced by its execution hereof, is of the opinion that such modifications are of a formal, minor or technical nature. |
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| (6) | The New Bonds when issued as definitive bonds in exchange for the New Global Bond (as defined below) will be in bearer form with New Coupons (as defined below) and talons attached. |
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| NOW THIS THIRD SUPPLEMENTAL TRUST DEED WITNESSES AND IT IS AGREED AND DECLARED as follows: |
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| 1. | DEFINITIONS |
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| (A) | All expressions defined in the Subsisting Trust Deeds shall, unless there is anything in the subject or context inconsistent therewith, have the same meanings in this Third Supplemental Trust Deed. |
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| (B) | In this Third Supplemental Trust Deed, unless there is anything in the subject or context inconsistent therewith, the following expressions shall have the following meanings: |
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| | "New Bearer Bonds" means those of the New Bonds which are for the time being in bearer form; |
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| | "New Bondholders" means the several persons who are for the time being holders of the New Bonds; |
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| | "New Bonds" means the bonds (whether in bearer or registered form) comprising the said £50,000,000 8.875 per cent. Bonds 2026 of the Issuer hereby constituted or the principal amount thereof for the time being outstanding or, as the context may require, a specific number thereof and includes any replacements for New Bonds (whether in bearer or registered form, as the case may be) issued pursuant to Condition 13 and (except for the purposes of Clause 2) the New Global Bond; and |
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| | "New Couponholders" means the several persons who are for the time being holders of the New Coupons; |
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| | "New Coupons" means the Coupons appertaining to the New Bearer Bonds; |
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| | "New Global Bond" means the temporary global bond in respect of the New Bonds to be issued pursuant to Clause 3(A) in the form or substantially in the form set out in the First Schedule; and |
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| | "New Registered Bonds" means those of the New Bonds which are for the time being in registered form. |
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| (C) | In this Third Supplemental Trust Deed references to Schedules, Clauses, sub-clauses, paragraphs and sub-paragraphs shall, unless there is anything in the subject or context inconsistent therewith, be construed as references to the Schedules to this Third Supplemental Trust Deed and to the Clauses, sub-clauses, paragraphs and sub-paragraphs of this Third Supplemental Trust Deed respectively. |
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| 2. | COVENANT TO REPAY AND TO PAY INTEREST ON NEW BONDS |
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| (A) | The aggregate principal amount of the New Bonds constituted hereunder is limited to £50,000,000. The New Bonds, as and when issued, shall be further securities but shall, on and from 30th January 2002, be consolidated and form a single series with the Original Bonds. |
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| (B) | The Issuer covenants with the Trustee that it will, in accordance with these presents, on the due date for the final maturity of the New Bonds provided for in the Conditions, or on such earlier date as the same or any part thereof may become due and payable thereunder, pay or procure to be paid unconditionally to or to the order of the Trustee in Pounds Sterling in London in immediately available funds the principal amount of the New Bonds repayable on that date together with the applicable premium and shall in the mean time and until such date (both before and after any judgment or other order of a court of competent jurisdiction) pay or procure to be paid unconditionally to or to the order of the Trustee as aforesaid interest (which shall accrue from day to day) on the principal amount of the New Bonds at the rate of 8.875 per cent. per annum payable (less United Kingdom income tax, if appropriate) annually in arrear on 25th March in each year PROVIDED THAT |
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| | (i) | every payment of principal, premium (if any) or interest in respect of the New Bearer Bonds and every payment of principal and premium (if any) in respect of the New Registered Bonds to, or to the account of, the Principal Paying Agent in the manner provided in the Agency Agreement as amended shall operate in satisfaction pro tanto of the relevant covenant by the Issuer in this Clause, except to the extent that there is a default in the subsequent payment thereof in accordance with the Conditions to the relevant New Bondholders or New Couponholders (as the case may be); |
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| | (ii) | every payment of interest in respect of the New Registered Bonds to the relevant New Bondholders as provided in the Conditions (whether by the Issuer or the Registrar) shall operate in satisfaction pro tanto of the relative covenant by the Issuer in this Clause; |
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| | (iii) | in any case where payment of principal or premium (if any) is not made to the Trustee or the Principal Paying Agent on or before the due date, interest shall continue to accrue on such premium (both before and after any judgment or any other order of a court of competent jurisdiction) at the rate aforesaid (or, if higher, the rate of interest on judgment debts for the time being provided by English law) up to and including the date which the Trustee determines to be the date on and after which payment is to be made to the New Bondholders in respect thereof as stated in a notice given to the New Bondholders in accordance with Condition 14 (such date to be not later than 30 days after the day on which the whole of such principal amount and premium (if any), together with an amount equal to the interest which has accrued and is to accrue pursuant to this proviso up to and including that date, has been received by the Trustee or the Principal Paying Agent); and |
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| | (iv) | in any case where payment of the whole or any part of the principal amount of, or premium (if any) on, any New Bond is improperly withheld or refused upon due presentation thereof (other than in circumstances contemplated by proviso (iii) above) interest shall accrue on that principal amount or premium payment of which has been so withheld or refused (both before and after any judgment or other order of a court |
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| | | of competent jurisdiction) at the rate aforesaid (or, if higher, the rate of interest on judgment debts for the time being provided by English law) from and including the date of such withholding or refusal up to and including the date on which, upon further presentation of the relevant New Bond, payment of the full amount (including interest as aforesaid) in Pounds Sterling payable in respect of such New Bond is made or (if earlier) the seventh day after notice is given to the relevant New Bondholder (either individually or in accordance with Condition 14) that the full amount (including interest as aforesaid) in Pounds Sterling payable in respect of such New Bond is available for payment, provided that, upon further presentation thereof being duly made, such payment is made. |
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| | The Trustee will hold the benefit of this covenant on trust for the New Bondholders and New Couponholders and itself in accordance with these presents. |
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| 3. | FORM AND ISSUE OF NEW BONDS AND NEW COUPONS |
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| (A) | (1) | The New Bearer Bonds shall be represented initially by the New Global Bond which the Issuer shall issue to a bank depositary common to both Euroclear and Clearstream on terms that such depositary shall hold the same for the account of the persons who would otherwise be entitled to receive the New Bearer Bonds in definitive form ("Definitive New Bearer Bonds") (as notified to such depositary by UBS AG, acting through its business group UBS Warburg) and the successors in title to such persons as appearing in the records of Euroclear and Clearstream for the time being. |
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| | (2) | The New Global Bond shall be printed or typed in the form, or substantially in the form, set out in the First Schedule. The New Global Bond shall be in the aggregate principal amount shown therein and shall be signed manually by a person duly authorised by the Issuer on behalf of the Issuer and shall be authenticated by or on behalf of the Principal Paying Agent. The New Global Bond so executed and authenticated shall be a binding and valid obligation of the Issuer. |
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| | (3) | The Issuer shall issue the Definitive New Bearer Bonds (together with the unmatured New Coupons attached) in exchange for the New Global Bond in accordance with the provisions thereof. Pending exchange of the entire principal amount of the New Global Bond the holder thereof shall, subject to the terms thereof, be deemed to be the holder of the New Bearer Bonds and the New Coupons represented thereby for all purposes. |
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| | (4) | The Definitive New Bearer Bonds and the New Coupons shall be in the respective forms or substantially in the respective forms set out in the First Schedule and the Definitive New Bearer Bonds shall be issued in the denominations of £1,000, £10,000 and £100,000 each (serially numbered) and shall be endorsed with the Conditions. Title to the Definitive New Bearer Bonds and the New Coupons shall pass by delivery. |
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| (B) | The New Registered Bonds shall be issued in definitive registered form, shall be in the form or substantially in the form set out in the First Schedule in the denomination and transferable in units of £1 each or integral multiples thereof, shall be serially numbered and shall be endorsed with a Form of Transfer in the form, or substantially in the form, also set out in the Second Schedule and with the Conditions. Title to the New Registered Bonds in definitive form shall pass upon the registration of transfers in respect thereof in accordance with the provisions of these presents. |
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| (C) | The Definitive New Bearer Bonds and the New Registered Bonds in definitive form shall be signed manually or in facsimile by a Director of the Issuer on behalf of the Issuer and, in the case of the Definitive New Bearer Bonds, shall be authenticated by or on behalf of the Principal Paying Agent. The Issuer may use the facsimile signature of any person who, at the date such signature is affixed, is a Director of the Issuer, notwithstanding that at the time of issue of any of the Definitive New Bearer Bonds or New Registered Bonds in definitive form he may have ceased for any reason to be the holder of such office. The New Coupons shall not be signed. The Definitive New Bearer Bonds so executed and authenticated, the New Registered Bonds in definitive form so executed, and the New Coupons, upon execution and authentication of the relevant Definitive New Bearer Bonds, shall be binding and valid obligations of the Issuer. |
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| 4. | MODIFICATIONS |
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| (A) | The provisions of the Original Trust Deed are hereby modified with immediate effect by the deletion of Clause 11(A) and the substitution therefor of the words "The Trustee may at its discretion and pending payment invest moneys at any time available for the payment of principal, premium (if any) and interest on the Securities of any series in some or one of the investments hereinafter authorised for such periods as it may consider expedient with power from time to time at the like discretion to vary such investments and to accumulate such investments and the resulting interest and other income derived therefrom. The accumulated investments shall be applied under Clause 9. All interest and other income deriving from such investments shall be applied first in payment or satisfaction of all amounts then due and unpaid under Clauses 14 and/or 15(J) to the Trustee and/or any Appointee and otherwise held for the benefit of and paid to the Holders of the Securities of such series or the holders of the related Coupons, as the case may be.". |
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| (B) | All references in the Trust Deed to "NORWEB plc" shall, unless the context otherwise requires, be amended so as to be read as and deemed to be references to "United Utilities Electricity PLC". |
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| 5. | RIGHTS OF THIRD PARTIES |
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| | A person who is not a party to this Third Supplemental Trust Deed or any trust deed supplemental hereto has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Third Supplemental Trust Deed or any trust deed supplemental hereto, but this does not affect any right or remedy of a third party which exists or is available apart from that Act. |
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| 6. | GENERAL |
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| (A) | The Subsisting Trust Deeds shall henceforth be read and construed in conjunction with this Third Supplemental Trust Deed as one document. |
| (B) | A memorandum of this Third Supplemental Trust Deed shall be endorsed by the Trustee on the Original Trust Deed and by the Issuer on the duplicate thereof. |
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| (C) | This Third Supplemental Trust Deed may be executed in counterparts, each of which, taken together, shall constitute one and the same Third Supplemental Trust Deed and any party may enter into this Third Supplemental Trust Deed by executing a counterpart. |
IN WITNESS whereof this Third Supplemental Trust Deed has been executed as a deed by the Issuer and the Trustee and entered into the day and year first above written.
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THE FIRST SCHEDULE
PART 1
- FORM OF NEW GLOBAL BOND -
UNITED UTILITIES ELECTRICITY PLC
(formerly NORWEB plc)
(Incorporated in England with limited liability under the Companies Act 1985
with registered number 2366949)
TEMPORARY GLOBAL BOND
representing
£50,000,000 8.875 PER CENT. BONDS 2026
This Bond is a temporary Global Bond without interest coupons in respect of £50,000,000 in principal amount of a duly authorised issue of Bonds of United Utilities Electricity PLC (formerly NORWEB plc) (the "Issuer"), designated as specified in the title hereof (the "Bonds"), limited to the aggregate principal amount of Fifty Million Pounds Sterling (£50,000,000) and constituted by a Third Supplemental Trust Deed of even date herewith (the "Third Supplemental Trust Deed") between the Issuer and The Law Debenture Trust Corporation p.l.c. supplemental to the Second Supplemental Trust Deed between the Issuer and The Law Debenture Trust Corporation p.l.c. dated 6th July, 2001 (the "Second Supplemental Trust Deed"), the First Supplemental Trust Deed between the Issuer and The Law Debenture Trust Corporation p.l.c. dated 2nd July, 2001 (the "First Supplemental Trust Deed") and the Trust Deed dated 3rd August, 1995 (together with the First, Second and Third Supplemental Trust Deeds, the "Trust Deed") between the Issuer and The Law Debenture Trust Corporation p.l.c. as trustee (the trustee for the time being thereof being herein called the "Trustee"). References herein to the Conditions (or to any particular numbered Condition) shall be to the Conditions (or that particular one of them) set out in the Second Schedule to the Third Supplemental Trust Deed.
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| | Subject as provided in this temporary Global Bond the Issuer promises to pay to the bearer the principal amount of this temporary Global Bond (being at the date hereof Fifty Million Pounds Sterling (£50,000,000)) on 25th March, 2026 (or on such earlier date as the said principal amount may become repayable in accordance with the Conditions or the Trust Deed) and to pay interest annually in arrear on 25th March on the principal amount from time to time of this temporary Global Bond at the rate of 8.875 per cent. per annum (less United Kingdom income tax, if appropriate) together with such premium and other amounts (if any) as may be payable, all subject to and in accordance with the Conditions and the provisions of the Trust Deed. |
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| 2. | Exchange for definitive Bearer Bonds and purchases |
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| | This temporary Global Bond is exchangeable in whole or in part upon the request of the bearer for definitive Bearer Bonds only on and subject to the terms and conditions set out below. The definitive Bearer Bonds to be issued on such exchange will be in bearer form in the denominations of £1,000, £10,000 and £100,000 each with interest coupons and one talon ("Coupons") attached. |
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| | On and after 30th January, 2002 this temporary Global Bond may be exchanged in whole or in part at the specified office of the Principal Paying Agent (or such other place as the Trustee may agree) for definitive Bearer Bonds and the Issuer shall procure that the Principal Paying Agent shall issue and deliver, in full or partial exchange for this temporary Global Bond, definitive Bearer Bonds (together with the Coupons appertaining thereto) in an aggregate principal amount equal to the principal amount of this temporary Global Bond submitted for exchange Provided that definitive Bearer Bonds will be so issued and delivered only if, and to the extent that, there shall have been presented to the Issuer a certificate from Euroclear Bank S.A./N.V. as operator of the Euroclear system ("Euroclear") or from Clearstream Banking, société anonyme, as operator of the Clearstream system ("Clearstream") substantially in the form of the certificate attached as Exhibit A. |
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| | Any person who would, but for the provisions of this temporary Global Bond and the Trust Deed, otherwise be entitled to receive a definitive Bearer Bond or definitive Bearer Bonds shall not be entitled to require the exchange of an appropriate part of this temporary Global Bond for a definitive Bearer Bond or definitive Bearer Bonds unless and until he shall have delivered or caused to be delivered to Euroclear or Clearstream a certificate substantially in the form of the certificate attached as Exhibit B (copies of which form of certificate will be available at the offices of Euroclear in Brussels and Clearstream in Luxembourg and the specified office of each of the Paying Agents). |
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| | Upon (i) any exchange of a part of this temporary Global Bond for a definitive Bearer Bond or definitive Bearer Bonds or (ii) the purchase by or on behalf of the Issuer or any Subsidiary of the Issuer and cancellation of a part of this temporary Global Bond in accordance with the Conditions, the portion of the principal amount hereof so exchanged or so purchased and cancelled shall be endorsed by or on behalf of the Principal Paying Agent on behalf of the Issuer on Part II of the Schedule hereto, whereupon the principal amount hereof shall be reduced for all purposes by the amount so exchanged or so purchased and cancelled and, in each case, endorsed. |
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| 3. | Payments |
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| | Until the entire principal amount of this temporary Global Bond has been extinguished, this temporary Global Bond shall in all respects be entitled to the same benefits as the definitive Bearer Bonds for the time being represented hereby and shall be entitled to the benefit of, and be bound by, the Trust Deed, except that the holder of this temporary Global Bond shall not (unless upon due presentation of this temporary Global Bond for exchange, delivery of the appropriate number of definitive Bearer Bonds (together with the Coupons appertaining thereto) is improperly withheld or refused and such withholding or refusal is continuing at the relevant payment date) be entitled to receive any payment of interest on this temporary Global Bond except upon certification as hereinafter provided. Upon any payment of principal, premium or interest on this temporary Global Bond the amount so paid shall be endorsed by or on behalf of the Principal Paying Agent on behalf of the Issuer on Part I of the Schedule hereto. |
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| | Payments of interest in respect of Bonds for the time being represented by this temporary Global Bond shall be made to the bearer only upon presentation to the Issuer of a certificate from Euroclear or from Clearstream substantially in the form of the certificate attached as Exhibit A. Any person who would, but for the provisions of this temporary Global Bond and of the Trust Deed, otherwise be beneficially entitled to a payment of interest on this temporary Global Bond shall not be entitled to require such payment unless and until he shall have delivered or caused to be delivered to Euroclear or Clearstream a certificate substantially in the form of the certificate attached as Exhibit B (copies of which form of certificate will be available at the offices of Euroclear in Brussels and Clearstream in Luxembourg and the specified office of each of the Paying Agents). |
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| | Upon any payment of principal and endorsement of such payment on Part I of the Schedule hereto, the principal amount of this temporary Global Bond shall be reduced for all purposes by the principal amount so paid and endorsed. |
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| | All payments of any amounts payable and paid to the bearer of this temporary Global Bond shall be valid and, to the extent of the sums so paid, effectual to satisfy and discharge the liability for the moneys payable hereon and on the relevant definitive Bearer Bonds and Coupons. |
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| 4. | Authentication |
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| | This temporary Global Bond shall not be or become valid or obligatory for any purpose unless and until authenticated by or on behalf of the Principal Paying Agent. |
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| 5. | Governing law |
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| | This temporary Global Bond is governed by, and shall be construed in accordance with, the laws of England. |
IN WITNESS whereof the Issuer has caused this temporary Global Bond to be signed manually by a person duly authorised on its behalf.
| | UNITED UTILITIES ELECTRICITY PLC |
| | (formerly NORWEB plc) |
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| | By: .......................................... |
| | Duly authorised |
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| Issued in London, England on 20th December, 2001. |
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| Certificate of authentication |
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| This temporary Global Bond is duly authenticated without recourse, warranty or liability. |
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| .................................. |
| Citibank, N.A., London Office |
| as Principal Paying Agent |
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THE SCHEDULE
PART I
PAYMENTS OF PRINCIPAL, PREMIUM AND INTEREST
| | The following payments on this temporary Global Bond have been made: |
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| Date | | Interest | | Premium | | Principal | | Remaining principal | | Notation |
| made | | paid | | paid | | paid | | amount of this | | made on |
| | | | | | | | | temporary Global | | behalf of |
| | | | | | | | | Bond following | | the Issuer |
| | | | | | | | | such payment | | |
| | | £ | | £ | | £ | | £ | | |
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| EXCHANGES FOR DEFINITIVE BEARER BONDS AND |
| PURCHASES AND CANCELLATIONS |
The following exchanges of a part of this temporary Global Bond for definitive Bearer Bonds and/or purchases and cancellations of a part of this temporary Global Bond have been made:
| Date | | Part of principal | | Part of principal | | Aggregate principal | | Notation |
| made | | amount of this | | amount of this | | amount of this | | made on |
| | | temporary | | temporary | | temporary | | behalf of |
| | | Global Bond | | Global Bond | | Global Bond | | the Issuer |
| | | exchanged for | | purchased and | | following such | | |
| | | definitive Bearer | | cancelled | | exchange or
purchase | | |
| | | Bonds | | | | and cancellation | | |
| | | | | | | | | |
| | | £ | | £ | | £ | | |
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| UNITED UTILITIES ELECTRICITY PLC |
| |
| 8.875 per cent. Bonds 2026 |
This is to certify that, based solely on certifications we have received in writing, by tested telex or by electronic transmission from member organisations appearing in our records as persons being entitled to a portion of the principal amount set forth below (our "Member Organisations") substantially to the effect set forth in the Trust Deed, as of the date hereof, £[ ] principal amount of the above-captioned Securities (i) is owned by persons that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source ("United States persons"), (ii) is owned by United States persons that (a) are foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account or for resale, or (b) acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution has agreed, on its own behalf or through its agent, that we may advise the Issuer or the Issuer's agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or foreign financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended, then this is also to certify with respect to such principal amount of Securities set forth above that, except as set forth below, we have received in writing, by tested telex or by electronic transmission, from our Member Organisations entitled to a portion of such principal amount, certifications with respect to such portion, substantially to the effect set forth in the Trust Deed.
As used herein, "United States" means the United States of America (including the States and the District of Columbia); and its "possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) any portion of the temporary global Security excepted in such certifications and (ii) that as of the date hereof we have not received any notification from any of our Member Organisations to the effect that the statements made by such Member Organisations with respect to any portion of the part submitted herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorise you to produce this certification to any interested party in such proceedings.
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*Dated
| [Euroclear Bank S.A./N.V.] [Clearstream Banking, société anonyme] |
| |
| By: ................................................ |
| Authorised Signatory |
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* | To be dated no earlier than the date to which this certification relates, namely (a) the payment date or (b) the date set for the exchange of the temporary Global Bond for definitive Bearer Bonds. |
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| |
| UNITED UTILITIES ELECTRICITY PLC |
| |
| 8.875 per cent. Bonds 2026 |
This is to certify that as of the date hereof, and except as set forth below, the above-captioned Securities held by you for our account (i) are owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source ("United States person(s)"), (ii) are owned by United States person(s) that (a) are foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account or for resale, or (b) acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, on its own behalf or through its agent, that you may advise the Issuer or the Issuer's agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities is a United States or foreign financial institution described in clause (iii) above (whether or not also described in clause (i) or (ii)) this is further to certify that such financial institution has not acquired the Securities for the purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended, (the "Act"), then this is also to certify that, except as set forth below (i) in the case of debt securities, the Securities are beneficially owned by (a) non-U.S. person(s) or (b) U.S. person(s) who purchased the Securities in transactions which did not require registration under the Act; or (ii) in the case of equity securities, the Securities are owned by (x) non-U.S. person(s) (and such person(s) are not acquiring the Securities for the account or benefit of U.S. person(s)) or (y) U.S. person(s) who purchased the Securities in a transaction which did not require registration under the Act. If this certification is being delivered in connection with the exercise of warrants pursuant to Section 230.902(m) of Regulation S under the Act, then this is further to certify that, except as set forth below, the Securities are being exercised by and on behalf of non-U.S. person(s). As used in this paragraph the term "U.S. person" has the meaning given to it by Regulation S under the Act.
As used herein, "United States" means the United States of America (including the States and the District of Columbia); and its "possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Securities held by you for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
This certification excepts and does not relate to £[ ] of such interest in the above Securities in respect of which we are not able to certify and as to which we understand exchange and delivery of definitive Securities (or, if relevant, exercise of any rights or collection of any interest) cannot be made until we do so certify.
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We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorise you to produce this certification to any interested party in such proceedings.
| | |
| | By: ...................... |
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| | [Name of person giving certification] |
| | (As, or as agent for, the beneficial |
| | owner(s) of the Securities |
| | to which this certification relates) |
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* | To be dated no earlier than the fifteenth day before the date to which this certification relates, namely (a) the payment date or (b) the date set for the exchange of the temporary Global Bond for definitive Bearer Bonds. |
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THE FIRST SCHEDULE
PART 2
- FORM OF DEFINITIVE NEW BEARER BOND -
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
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| [1,000/10,000/100,000] | XS0058957316 | [SERIES] | [Serial No.] |
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| UNITED UTILITIES ELECTRICITY PLC |
(Incorporated in England with limited liability under the Companies Act 1985
with registered number 2366949) |
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| £50,000,000 8.875 PER CENT. BONDS 2026 |
(Consolidated, forming a single series and fungible with the £200,000,000 8.875 per cent. Bonds 2026 issued on 3rd August, 1995 and the £100,000,000 8.875 per cent. Bonds 2026 issued on 6th July, 2001)
The issue of the Bonds was authorised by resolutions of the Board of Directors of UNITED UTILITIES ELECTRICITY PLC (formerly NORWEB plc) (the "Issuer") passed on 13th December, 2001.
This Bond forms one of a series of Bonds constituted by a Third Supplemental Trust Deed dated 20th December, 2001 (the "Third Supplemental Trust Deed") between the Issuer and The Law Debenture Trust Corporation p.l.c. as trustee for the holders of the Bonds supplemental to the Second Supplemental Trust Deed between the Issuer and The Law Debenture Trust Corporation p.l.c. dated 6th July, 2001 (the "Second Supplemental Trust Deed"), the First Supplemental Trust Deed between the Issuer and The Law Debenture Trust Corporation p.l.c. dated 2nd July, 2001 (the "First Supplemental Trust Deed") and the Trust Deed dated 3rd August, 1995 (together with the First, Second and Third Supplemental Trust Deeds, the "Trust Deed") between the Issuer and The Law Debenture Trust Corporation p.l.c. and issued either in bearer form in the denominations of £1,000, £10,000 and £100,000 each with Coupons attached or in registered form in the denomination of £1 each or integral multiples thereof, in an aggregate principal amount of £50,000,000.
The Issuer for value received and subject to and in accordance with the Conditions endorsed hereon hereby promises to pay to the bearer on 25th March, 2026 (or on such earlier date as the principal sum hereunder mentioned may become repayable in accordance with the said Conditions) the principal sum of:
| £[1,000/10,000/100,000] ([One/Ten/One Hundred] Thousand Pounds Sterling) |
together with interest on the said principal sum at the rate of 8.875 per cent. per annum payable (less United Kingdom income tax, if appropriate) annually in arrear on 25th March and together with such premium and other amounts (if any) as may be payable, all subject to and in accordance with the said Conditions and the provisions of the Trust Deed.
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Neither this Bond nor the Coupons appertaining hereto shall be or become valid or obligatory for any purpose unless and until this Bond has been authenticated by or on behalf of the Principal Paying Agent.
| IN WITNESS whereof this Bond has been executed on behalf of the Issuer. |
| |
| | UNITED UTILITIES ELECTRICITY PLC |
| | (formerly NORWEB plc) |
| | |
| | By: .............................. |
| | Director |
| Dated as of 20th December, 2001 |
| |
| Issued in London, England. |
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| Certificate of authentication |
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| This Bond is duly authenticated without recourse, warranty or liability. |
| |
| ............................... |
| Citibank, N.A., London office, |
| as Principal Paying Agent |
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- FORM OF NEW COUPON -
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
| UNITED UTILITIES ELECTRICITY PLC |
| |
| £50,000,000 8.875 PER CENT. BONDS 2026 |
(Consolidated, forming a single series and fungible with the £200,000,000 8.875 per cent. Bonds 2026 issued on 3rd August, 1995 and the £100,000,000 8.875 per cent. Bonds 2026 issued on 6th July, 2001)
| Coupon appertaining to a Bond in the denomination of £[1,000/10,000/100,000] |
| | [This Coupon is separately | Coupon for |
| | negotiable, payable to bearer, | £ [88.75/887.50/8,875.00] |
| | and subject to the | due on |
| | Conditions of the said Bonds. | 25th March, [ ] |
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| [No.] | [1,000/10,000/100,000] | XS0058957316 | [Series] | [Serial No.] |
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Citibank, N.A.
P.O. Box 18055
5 Carmelite Street
London EC4Y OPA
Citibank International plc
c/- The Bank of New York
Avenue des Arts 35
Kunstlaan
B-1040 Brussels | BNP Paribas S.A.
10A Boulevard Royal
L-2093 Luxembourg |
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- FORM OF NEW TALON -
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
| UNITED UTILITIES ELECTRICITY PLC |
| |
| £50,000,000 8.875 PER CENT. BONDS 2026 |
(Consolidated, forming a single series and fungible with the £200,000,000 8.875 per cent. Bonds 2026 issued on 3rd August, 1995 and the £100,000,000 8.875 per cent. Bonds 2026 issued on 6th July, 2001)
| Talon appertaining to a Bond in the denomination of £[1,000/10,000/100,000] |
On and after [ ], 20[ ], [ ] further Coupons will be issued at the specified office of any of the Paying Agents set out on the reverse hereof (and/or any other or further Paying Agents and/or specified offices as may from time to time be duly appointed and notified to the Bondholders) upon production and surrender of this Talon.
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| [No.] | [1,000/10,000/100,000] | XS0058957316 | [Series] | [Serial No.] |
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Citibank, N.A.
P.O. Box 18055
5 Carmelite Street
London EC4Y OPA
Citibank International plc
c/- The Bank of New York
Avenue des Arts 35
Kunstlaan
B-1040 Brussels | BNP Paribas S.A.
10A Boulevard Royal
L-2093 Luxembourg |
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THE FIRST SCHEDULE
PART 3
| - FORM OF NEW REGISTERED BOND - |
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| XS0058957316 | [SERIES] | [SERIAL NO.] |
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| UNITED UTILITIES ELECTRICITY PLC |
| (Incorporated in England with limited liability under the Companies Act 1985 |
| with registered number 2366949) |
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| £50,000,000 8.875 PER CENT. BONDS 2026 |
| |
| (Consolidated, forming a single series and fungible with the £200,000,000 8.875 per cent. Bonds 2026 issued on 3rd August, 1995 and the £100,000,000 8.875 per cent. Bonds 2026 issued on 6th July, 2001) |
The issue of the Bonds was authorised by resolutions of the Board of Directors of UNITED UTILITIES ELECTRICITY PLC (formerly NORWEB plc) (the "Issuer") passed on 13th December, 2001.
This Bond forms one of a series of Bonds constituted by a Third Supplemental Trust Deed dated 20th December, 2001 (the "Third Supplemental Trust Deed") between the Issuer and The Law Debenture Trust Corporation p.l.c. as trustee for the holders of the Bonds supplemental to the Second Supplemental Trust Deed between the Issuer and The Law Debenture Trust Corporation p.l.c. dated 6th July, 2001 (the "Second Supplemental Trust Deed"), the First Supplemental Trust Deed between the Issuer and The Law Debenture Trust Corporation p.l.c. dated 2nd July, 2001 (the "First Supplemental Trust Deed") and the Trust Deed dated 3rd August, 1995 (together with the First, Second and Third Supplemental Trust Deeds, the "Trust Deed") between the Issuer and The Law Debenture Trust Corporation p.l.c. and issued either in bearer form in the denominations of £1,000, £10,000 and £100,000 each with Coupons attached or in registered form in the denomination of £1 each or integral multiples thereof, in an aggregate principal amount of £50,000,000.
is/are the registered holder(s) of one of the above-mentioned Bonds in registered form, such Bond being in the denomination of £[ ] ([ ] Pounds Sterling) and is/are entitled on 25th March, 2026 (or on such earlier date as the principal sum hereinafter mentioned may become repayable in accordance with the Conditions endorsed hereon) to the repayment of such principal sum of:
together with such premium and other amounts (if any) as may be payable, all subject to and in accordance with the said Conditions and the provisions of the Trust Deed.
Interest at the rate of 8.875 per cent. per annum (less United Kingdom income tax, if applicable) is payable on the said principal sum annually in arrear on 25th March in each year, subject to and in accordance with the said Conditions and the provisions of the Trust Deed.
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| IN WITNESS whereof this Bond has been executed on behalf of the Issuer. |
| | UNITED UTILITIES ELECTRICITY PLC |
| | (formerly NORWEB plc) |
| | |
| | By: .............................. |
| | Director |
| Dated | |
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- FORM OF TRANSFER OF NEW REGISTERED BOND -
| FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) to |
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| (Please print or type name and address (including postal code) of transferee) |
£ principal amount of this Bond and all rights hereunder, hereby irrevocably constituting and appointing ......................................................... as attorney to transfer such principal amount of this Bond in the register maintained by UNITED UTILITIES ELECTRICITY PLC (formerly NORWEB plc) with full power of substitution.
| Signature(s) | | ...................... |
| | | |
| | | ...................... |
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| 1. | This form of transfer must be accompanied by such documents, evidence and information as may be required pursuant to the Conditions and must be executed under the hand of the transferor or, if the transferor is a corporation, either under its common seal or under the hand of two of its officers duly authorised in writing and, in such latter case, the document so authorising such officers must be delivered with this form of transfer. |
| | |
| 2. | The signature(s) on this form of transfer must correspond with the name(s) as it/they appear(s) on the face of this Bond in every particular, without alteration or enlargement or any change whatever. |
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THE SECOND SCHEDULE
-TERMS AND CONDITIONS OF THE NEW BONDS -
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Terms and Conditions of the Bonds
The £50,000,000 8.875 per cent. Bonds 2026 (the "Bonds", which expression shall in these Terms and Conditions, unless the context otherwise requires, include any further bonds issued pursuant to Condition 17 and forming a single series with the Bonds) of United Utilities Electricity PLC (formerly NORWEB plc) (the "Issuer") are constituted by a Third Supplemental Trust Deed dated 20 December 2001 between the Issuer and The Law Debenture Trust Corporation p.l.c. (the "Third Supplemental Trust Deed" and the "Trustee", which expression shall include its successors as the trustee under the Trust Deed, respectively) as trustee for the holders of the Bonds (the "Bondholders") supplemental to the Trust Deed dated 3 August 1995 between NORWEB plc and the Trustee (the "Original Trust Deed") constituting £200,000,000 8.875 per cent. Bonds 2026 of NORWEB plc (the "Original Bonds") as supplemented by a First Supplemental Trust Deed dated 2 July 2001 between NORWEB plc and the Trustee (the "First Supplemental Trust Deed") modifying the Original Trust Deed and by a Second Supplemental Trust Deed dated 6 July 2001 between NORWEB plc and the Trustee (the "Second Supplemental Trust Deed", and, together with the Original Trust Deed and the First Supplemental Trust Deed, the "Subsisting Trust Deeds" and, together with the Original Trust Deed, the First Supplemental Trust Deed and the Third Supplemental Trust Deed, the "Trust Deed") constituting £100,000,000 8.875 per cent. Bonds 2026 of NORWEB plc (such bonds, together with the Original Bonds, the "Existing Bonds"). The Bonds are consolidated and form a single series with the Existing Bonds. The issue of the Bonds was authorised by resolutions of the Board of Directors of the Issuer passed on 13 December 2001. The Bonds are, on issue, listed on the official list of the UK Listing Authority and admitted to trading on the London Stock Exchange plc (the "London Stock Exchange"). The statements in these Terms and Conditions include summaries of, and are subject to, the detailed provisions of and definitions in the Trust Deed. Copies of the Trust Deed and of an Agency Agreement dated 3 August 1995 (the "Principal Agency Agreement") and the First Supplemental Agency Agreement dated 6 July 2001 (the "First Supplemental Agency Agreement") and the Second Supplemental Agency Agreement dated 20 December 2001 (together with the Principal Agency Agreement and the First Supplemental Agency Agreement, the "Agency Agreement"), each made between the Issuer, Citibank, N.A. (or in the case of the Principal Agency Agreement, Morgan Guaranty Trust Company of New York, London office but now replaced by Citibank, N.A.), as principal paying agent (the "Principal Paying Agent", which expression shall include any successor), Computershare Investor Services PLC as registrar (the "Registrar", which expression shall include any successor), the other paying agents named therein (together with the Principal Paying Agent, the "Paying Agents", which expression shall include any additional or successor paying agents) and the Trustee are available for inspection during normal business hours by the Bondholders and the holders of the interest coupons appertaining to the Bonds in bearer form (respectively, the "Couponholders" and the "Coupons", which latter expression shall, unless the context otherwise requires, include the Talon referred to below) at the registered office for the time being of the Trustee, being at the date of issue of the Bonds at Fifth Floor, 100 Wood Street, London EC2V 7EX, and at the specified office of each of the Paying Agents and the Registrar. The Bondholders and the Couponholders are entitled to the benefit of, are bound by, and are deemed to have notice of, all the provisions of the Trust Deed and the Agency Agreement.
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| 1. | FORM, DENOMINATION AND TITLE |
The Bonds are in bearer form, serially numbered in the denominations of £1,000, £10,000 and £100,000 each ("Bearer Bonds") with Coupons and one Talon for further Coupons (a "Talon") attached on issue and in registered form in the denominations of £1 and integral multiples thereof ("Registered Bonds") without interest coupons. Title to the Bearer Bonds and to the Coupons will pass by delivery and title to the Registered Bonds will pass upon the registration of transfers in accordance with the provisions of the Agency Agreement and the Trust Deed. Bearer Bonds of one denomination cannot be exchanged for Bearer Bonds of another denomination.
The Issuer, any Paying Agent, the Registrar and the Trustee may (to the fullest extent permitted by applicable laws) deem and treat the holder of any Bearer Bond and the holder of any Coupon and the registered holder of any Registered Bond as the absolute owner for all purposes (whether or not the Bond or Coupon shall be overdue and notwithstanding any notice of ownership or writing on the Bond or Coupon or any notice of previous loss or theft of the Bond or Coupon).
On the Closing Date, the Bonds will be issued as Bearer Bonds and will be represented initially by the Global Bond, without Coupons, which will be deposited with a common depositary for Euroclear Bank S.A./N.V. ("Euroclear") and Clearstream Banking, société anonyme ("Clearstream, Luxembourg") on or about the Closing Date for credit against payment to the accounts designated by the relevant subscribers with Euroclear or Clearstream, Luxembourg. The Global Bond will be exchangeable on or after a date which is expected to be 30 January 2002 for definitive Bearer Bonds, with Coupons and one Talon attached, upon certification that the beneficial owners of the relevant Bearer Bonds are not U.S. persons or persons who have acquired such Bearer Bonds for resale to any U.S. person.
Unless, upon due presentation of the Global Bond for exchange, delivery of definitive Bearer Bonds is improperly withheld or refused and such withholding or refusal is continuing at the relevant due date for payment thereof, definitive Bearer Bonds with Coupons attached must be obtained before interest can be collected in respect of the relevant Bearer Bonds.
Bonds (both in bearer and registered form) and Coupons will bear the following legend:
"Any United States person who holds this obligation will be subject to limitations under the United States income tax laws, including the limitations provided in Section 165(j) and 1287(a) of the Internal Revenue Code".
| 2. | TRANSFER AND EXCHANGE |
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| (a) | Transfer of Registered Bonds |
| A Registered Bond may be transferred in whole or in part (in the principal amount of £1 or any integral multiple thereof) by the transferor depositing the Registered Bond for registration of the transfer of the Registered Bond (or the relevant part of the Registered Bond) at the specified office of the Registrar with a form of transfer (in a form approved by the Registrar and the Trustee) duly completed and signed by or on behalf of the transferor and upon the Registrar after due and careful enquiry being satisfied with the evidence of title and the identity of the person making the request and subject to such reasonable regulations as the Issuer and the Registrar may (with the prior approval of the Trustee) prescribe. Subject as provided above and subject to the payment of any sum in respect of any stamp duty, tax or other governmental charge as is referred to in paragraph (e) below, the Registrar will, within three Business Days (as defined below) of the request (or such longer period as may be required to comply with any applicable fiscal or other laws or regulations), deliver at its specified office to the transferee or (at the risk and, if mailed at the request of the transferee otherwise than by ordinary uninsured mail, at the expense of the transferee) send by mail to such address as the transferee may request a new Registered Bond of a like aggregate principal amount to the Registered Bond (or the relevant part of the Registered Bond) transferred. In the case of the transfer of part only of a Registered Bond, a new Registered Bond in respect of the balance of the Registered Bond not transferred will be so delivered or (at the risk and, if mailed at the request of the transferor otherwise than by ordinary uninsured mail, at the expense of the transferor) sent by mail to the transferor. For the purpose of this Condition 2, "Business Day" means a day on which commercial banks and foreign exchange markets settle payments in London. |
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| (b) | Exchange of Bearer Bonds for Registered Bonds |
| At the option of the holder thereof, upon presentation to the Principal Paying Agent at any time on or after 30 January 2002 (the "Exchange Date") of a duly completed and signed request for exchange (in the form for the time being obtainable from the specified office of the Registrar or the Principal Paying Agent (a "Registration Request")) together with the relevant Bearer Bond(s) and payment of any sum in respect of any such stamp duty, tax or other governmental charge as is referred to in paragraph (e) below, subject to the terms of the Agency Agreement, Bearer Bonds are exchangeable in whole, but not in part, for the same aggregate principal amount of Registered Bonds, provided that all unmatured Coupons relating thereto are attached thereto or are surrendered therewith. Registration Requests may not be presented on or after the Record Date (as defined in Condition 5) in respect of any Interest Payment Date (as defined in Condition 4) up to and including such Interest Payment Date. Interest on a Registered Bond issued on exchange will accrue, and interest on the corresponding Bearer Bond(s) presented for exchange will cease to accrue, as from the immediately preceding Interest Payment Date or, if none, as from 25 March 2001. Registration Requests may only be presented, and Bearer Bonds and Coupons may only be surrendered for exchange for Registered Bonds, at the specified office of the Principal Paying Agent. The Registrar will, within five Business Days of the date of presentation to the Principal Paying Agent of any Registration Request together with the relevant Bearer Bond(s) and Coupons, deliver at its specified office to the Bondholder or (at the risk and, if mailed at the request of the Bondholder otherwise than by ordinary uninsured mail, at the expense of the Bondholder) mail to such address (other than an address in the United States) as may be specified by the Bondholder in the Registration Request a Registered Bond of the same aggregate principal amount as that of the Bearer Bond exchanged. |
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| (c) | Exchange of Registered Bonds for Bearer Bonds |
| At the option of the holder thereof, upon presentation to the Registrar at any time on or after the Exchange Date of a duly completed and signed request for exchange (in the form for the time being obtainable from the specified office of the Registrar or the Principal Paying Agent (a "Bearer Request")) together with the relevant Registered Bond(s) and payment of any sum in respect of any such stamp duty, tax or other governmental charge as is referred to in paragraph (e) below, subject to the terms of the Agency Agreement, Registered Bonds are exchangeable in whole or in part in principal amounts of £1,000 or integral multiples thereof for the same aggregate principal amount of Bearer Bonds. Bearer Requests may not be presented on or after the Record Date in respect of any Interest Payment Date up to and including such Interest Payment Date. Bearer Requests may not be presented on or after the date the Issuer validly gives notice to the Bondholders of its intention to redeem Bearer Bonds pursuant to Condition 6(c). Interest on Bearer Bonds issued on exchange will accrue, and interest on the corresponding Registered Bonds presented for exchange will cease to accrue, as from the immediately preceding Interest Payment Date or, if none, 25 March 2001. Bearer Requests may only be presented, and Registered Bonds may only be surrendered for exchange for Bearer Bonds, at the specified office of the Registrar. The Principal Paying Agent will, within five Business Days of the date of presentation to the Registrar of any Bearer Request together with the relevant Registered Bond(s), deliver at its specified office to the Bondholder or (at the risk and, if mailed at the request of the Bondholder otherwise than by ordinary uninsured mail, at the expense of the Bondholder) mail to such address, other than an address in the United States as may be specified by the Bondholder in the Bearer Request, the Bearer Bond or Bearer Bonds requested together with all Coupons in respect of all Interest Payment Dates falling after the date of presentation. In the case of exchange of part only of a Registered Bond, a new Registered Bond for the balance so exchanged will be sent by mail by the Registrar (at the risk and, if mailed at the request of the Bondholder otherwise than by ordinary uninsured mail, at the expense of the Bondholder) to such address, other than an address in the United States, as may be specified by the Bondholder in the Bearer Request. |
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| (d) | Closed Periods |
| In the event of a partial redemption of Bonds under Condition 6(b), the Issuer shall not be required: |
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| (i) | to register the transfer of Registered Bonds (or parts of Registered Bonds) or to exchange Bearer Bonds for Registered Bonds (or vice versa) during the period beginning on the sixty-fifth day before the date of the partial redemption and ending on the day on which notice is given specifying the serial numbers of Bonds called (in whole or in part) for redemption (both inclusive); or |
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| (ii) | to register the transfer of any Registered Bond, or part of a Registered Bond, called for partial redemption; or |
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| (iii) | to exchange any Registered Bond (or part thereof) or Bearer Bond called for partial redemption; |
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| except that a Registered Bond (or part thereof) or Bearer Bond called for partial redemption may be exchanged for a Bearer Bond or Registered Bond, respectively, which is simultaneously surrendered not later than the relevant Record Date. |
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| (e) | Formalities free of charge |
| Such transfer or exchange will be effected without charge subject to (i) the person making such application for transfer or request for exchange paying or procuring the payment of any stamp duty, tax or other governmental charge, (ii) the Registrar being satisfied with the documents of title and identity of the person making the application or request and (iii) such reasonable regulations as the Issuer may from time to time agree with the Trustee, the Principal Paying Agent and the Registrar. The exchange of Bearer Bonds for Registered Bonds and Registered Bonds for Bearer Bonds will be subject to the provisions of all applicable fiscal or other laws and regulations in effect at the time of such exchange. |
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| (f) | Registrar |
| The name of the initial Registrar and its initial specified office are set out at the end of these Terms and Conditions. The Issuer reserves the right, subject to the prior written approval of the Trustee, at any time to vary or terminate the appointment of the Registrar and to appoint another Registrar provided that it will at all times maintain a Registrar approved by the Trustee having a specified office in the United Kingdom. Notice of any termination or appointment and of any changes in specified office will be given to the Bondholders promptly by the Issuer in accordance with Condition 14. |
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| 3. | STATUS |
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| The Bonds and the Coupons are direct, unconditional and unsecured obligations of the Issuer and rank and will rank pari passu, without any preference among themselves, with all other outstanding unsecured and unsubordinated obligations of the Issuer, present and future, but, in the event of insolvency, only to the extent permitted by applicable laws relating to creditors' rights. |
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| 4. | INTEREST |
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| The Bonds bear interest from (and including) 25 March 2001 at the rate of 8.875 per cent. per annum payable (less United Kingdom income tax, if appropriate) annually in arrear on 25 March in each year (each an "Interest Payment Date"). |
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| Each Bond or, in the case of the redemption of part only of a Registered Bond, that part only of the Registered Bond will cease to bear interest from its due date for redemption unless, upon due presentation, payment of the principal in respect of the Bond is improperly withheld or refused or unless default is otherwise made in respect of such payment, in which event interest shall continue to accrue as provided in the Trust Deed. |
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| When interest is required to be calculated in respect of a period of less than a full year, it shall be calculated on the basis of a 360 day year consisting of 12 months of 30 days each. |
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| 5. | PAYMENTS AND EXCHANGE OF TALONS |
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| Payments of principal and interest in respect of each Bearer Bond will be made against presentation and surrender (or, in the case of part payment only, endorsement) of the Bearer Bond, except that payments of interest due on an Interest Payment Date will be made against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant Coupons, in each case at the specified office of any of the Paying Agents. |
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| Payments in respect of each Bearer Bond will be made at the specified office of any Paying Agent, at the option of the holder, by sterling cheque drawn on, or by transfer to a sterling account maintained by the payee with, a bank in the City of London, subject in all cases to any applicable fiscal or other laws and regulations, but without prejudice to the provisions of Condition 8. |
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| Each Bearer Bond should be presented for payment together with all relative unmatured Coupons, failing which the full amount of any relative missing unmatured Coupon (or, in the case of payment not being made in full, that proportion of the full amount of the missing unmatured Coupon which the amount so paid bears to the total amount due) will be deducted from the amount due for payment. Each amount so |
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deducted will be paid in the manner mentioned above against presentation and surrender (or, in the case of part payment only, endorsement) of the relative missing Coupon at any time before the expiry of 10 years after the Relevant Date (as defined in Condition 8) in respect of the relevant Bearer Bond (whether or not the Coupon would otherwise have become void pursuant to Condition 9), or, if later, five years after the date on which the Coupon would have become due, but not thereafter.
If the due date for redemption of any Bearer Bond is not an Interest Payment Date interest accrued on such Bond from (and including) the preceding Interest Payment Date (or, if none, 25 March 2001) up to (but excluding) the date of redemption shall be paid only against presentation and surrender of such Bearer Bond.
Payments of principal in respect of each Registered Bond will be made against presentation and surrender (or, in the case of part payment only, endorsement) of the Registered Bond at the specified office of the Registrar in London by sterling cheque drawn on a bank in the City of London. Payments of interest on each Registered Bond will be made by sterling cheque drawn on a bank in the City of London and mailed on the Business Day in the City of London immediately preceding the relevant due date to the holder (or to the first named of joint holders) of the Registered Bond appearing on the register at the close of business on the seventh day before the relevant due date (the "Record Date") at his address shown on the register on the Record Date. Upon application of the holder to the specified office of the Registrar, not less than three Business Days before the due date for any payment in respect of a Registered Bond, the payment may be made (in the case of payment of principal against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant Registered Bonds as provided above) by transfer on the due date to a sterling account maintained by the payee with a bank in the City of London. Payments in respect of principal and interest on Registered Bonds are subject in all cases to any fiscal or other laws and regulations applicable in the place of payment, but without prejudice to the provisions of Condition 8.
A holder shall be entitled to present a Bond or Coupon for payment only on a Presentation Date and shall not be entitled to any further interest or other payment if a Presentation Date is after the due date.
"Presentation Date" means a day which (subject to Condition 9):
| (a) | is or falls after the relevant due date but, if the due date is not or was not a Business Day in the City of London, is or falls after the next following such Business Day; and |
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| (b) | is a Business Day in the place of the specified office of the Paying Agent (or the Registrar in the case of payments of principal in respect of Registered Bonds) at which the Bond or Coupon is presented for payment and, in the case of payment by transfer to a sterling account in the City of London as referred to above, in the City of London. |
In this Condition 5, "Business Day" means, in relation to any place, a day on which commercial banks and foreign exchange markets settle payments in that place.
On and after the Interest Payment Date on which the final Coupon comprised in any Coupon sheet matures, the Talon comprised in the Coupon Sheet may he surrendered at the specified office of any Paying Agent in exchange for a further Coupon sheet (including any appropriate further Talon), subject to the provisions of Condition 9. Each Talon shall, for the purposes of these Conditions, be deemed to mature on the Interest Payment Date on which the final Coupon comprised in the relative Coupon sheet matures.
The names of the initial Paying Agents and their initial specified office are set out at the end of these Terms and Conditions. The Issuer reserves the right, subject to the prior written approval of the Trustee, at any time to vary or terminate the appointment of any Paying Agent and to appoint additional or other Paying Agents provided that it will at all times maintain at least two Paying Agents having specified offices in separate European cities approved by the Trustee, one of which, so long as the Bonds are listed on the London Stock Exchange, shall be London or such other place as the London Stock Exchange may approve and one of which shall be outside the United Kingdom. Notice of any termination or appointment and of any changes in specified offices will be given to the Bondholders promptly by the Issuer in accordance with Condition 14.
| 6. | REDEMPTION AND PURCHASE |
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| (a) | Unless previously redeemed or purchased and cancelled as provided below, the Issuer will redeem the Bonds at their principal amount on 25 March 2026. |
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| (b) | The Issuer may, at any time, having given notice to the Bondholders in accordance with this Condition 6(b) (which notice shall be irrevocable), redeem the Bonds in whole or in part (but if in part, in integral multiples of £1,000,000 in principal amount thereof), at the price which shall be the higher of the following, together with interest accrued up to (but excluding) the date of redemption: |
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| | (ii) | that price (the "Redemption Price"), expressed as a percentage rounded to three decimal places (0.0005 being rounded down), at which the Gross Redemption Yield on the Bonds, if they were to be purchased at such price on the third dealing prior to the publication of the notice of redemption or, in the case of a partial redemption, the first notice of redemption referred to below, would be equal to the Gross Redemption Yield on such dealing day of the 8¾ per cent. Treasury Stock 2017 or of such other United Kingdom Government Stock as the Trustee, with the advice of three leading brokers operating in the gilt-edged market and/or gilt-edged market makers, shall determine to be appropriate (the "Reference Stock") on the basis of the middle market price of the Reference Stock prevailing on such dealing day, as determined by UBS AG, acting through its business group UBS Warburg (or such other person(s) as the Trustee may approve). |
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| | The Gross Redemption Yield on the Bonds and the Reference Stock will be expressed as a percentage and will be calculated on the basis indicated by the Joint Index and Classification Committee of the Institute and Faculty of Actuaries as reported in the Journal of the Institute of Actuaries, Vol. 105, Part 1, 1978, page 18 or on such other basis as the Trustee may approve. |
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| | In the case of a partial redemption of Bonds, Bonds (or, as the case may be, parts of Registered Bonds) to be redeemed will be selected individually by lot in such place as the Trustee may approve and in such manner as the Trustee shall deem to be appropriate and fair without involving any part only of a Bearer Bond, not more than 65 days before the date fixed for redemption. In the case of a redemption of all of the Bonds pursuant to this Condition 6(b), notice will be given to the Bondholders by the Issuer in accordance with Condition 14 once not less than 30 nor more than 60 days before the date fixed for redemption. In the case of a partial redemption, notice will be so given twice, first not less than 80 nor more than 95 days, and secondly not less than 30 nor more than 60 days, before the date fixed for redemption. Each notice will specify that date fixed for redemption and the redemption price and, in the case of a partial redemption, the aggregate principal amount of the Bonds to be redeemed, the serial numbers of Bonds previously called (in whole or in part) for redemption and not presented for payment and the aggregate principal amount of the Bonds which will be outstanding after the partial redemption. In addition, in the case of a partial redemption, the first notice will specify the period during which exchanges or transfers of Bonds may not be made as provided in Condition 2 and the second notice will specify the serial numbers of the Bonds called (in whole or, in the case of Registered Bonds, in part) for redemption. |
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| | Upon the expiry of any such notice period as is referred to above, the Issuer shall be bound to redeem the Bonds to which the notice refers at the relative redemption price applicable at the date of such redemption together with interest accrued to (but excluding) such date. |
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| (c) | If, as a result of any change in, or amendment to, the laws or regulations of the United Kingdom or any political sub-division of, or any authority in, or of, the United Kingdom having power to tax, or any change in the application or official interpretation of such laws or regulations, which change or amendment becomes effective after 28 July 1995, the Issuer has or will become obliged to pay additional amounts as provided or referred to in Condition 8 (and such amendment or change has been evidenced by the delivery by the Issuer to the Trustee (who shall, in the absence of manifest error, accept such certificate and opinion as sufficient evidence thereof) of (i) a certificate signed by two Directors of the Issuer on behalf of the Issuer stating that such amendment or change has occurred (irrespective of whether such amendment or change is then effective), describing the facts leading thereto and stating that such obligation cannot be avoided by the Issuer taking reasonable measures available to it and (ii) an opinion in a form satisfactory to the Trustee of independent legal advisers of recognised standing to whom the Trustee shall have no reasonable objection to the effect that such amendment or change has occurred (irrespective of whether such amendment or change is then effective)), the Issuer may, at its option, having given not less than 30 nor more than 60 days' notice to the Bondholders in accordance with Condition 14 (which notice shall be irrevocable), redeem all, but not some only, in a case where the requirement to pay such additional amounts results solely from the deduction from payments of interest |
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| | in respect of Bearer Bonds of any United Kingdom income tax required to be withheld or deducted at source, of only the Bearer Bonds and, in any other case, of the Bonds (other than Bonds in respect of which the Issuer shall have given a notice of redemption pursuant to Condition 6(b) prior to any notice being given under this Condition 6(c)), in each case at their principal amount together with interest accrued to the date of redemption, provided that no notice of redemption shall be given earlier than 90 days before the earliest date on which the Issuer would be required to pay such additional amounts were a payment in respect of the Bonds then due. Any notice to Bondholders pursuant to this Condition 6(c) which applies only to Bearer Bonds shall also inform holders of Bearer Bonds of their right to exchange such Bearer Bonds for Registered Bonds pursuant to Condition 2(b) and the period or periods during which such exchange can take place. |
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| | N.B. Holders of Registered Bonds should note that if the Issuer gives a notice under this Condition 6(c) to redeem only the outstanding Bearer Bonds, their right to exchange their Registered Bonds for Bearer Bonds will thereupon cease and there will be no obligation on the Issuer to redeem any Registered Bonds which may be outstanding nor will there be any obligation on the Issuer to maintain in issue any minimum principal amount of Registered Bonds. |
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| | Upon the expiry of any such notice period as is referred to above (and subject as provided above), the Issuer shall be bound to redeem the relevant Bonds at their principal amount together with interest accrued to (but excluding) the redemption date. |
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| (d) | The Issuer or any of its Subsidiaries (as defined in Condition 10) may at any time purchase Bonds in any manner and at any price. If purchases are made by tender, tenders must be available to all Bondholders alike. |
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| (e) | All Bonds which are redeemed by the Issuer will forthwith be cancelled (together, in the case of Bearer Bonds, with all relative unmatured Coupons attached to the Bearer Bonds or surrendered with the Bearer Bonds) and may not be reissued or resold. Bonds purchased by the Issuer or any of its Subsidiaries may be held or reissued or resold or surrendered for cancellation. |
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| 7. | REDEMPTION AT THE OPTION OF BONDHOLDERS |
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| (a) | (i) | If, at any time while any of the Bonds remains outstanding, a Restructuring Event (as defined below) occurs and prior to the commencement of or during the Restructuring Period (as defined below) an independent financial adviser (as defined below) shall have certified in writing to the Trustee that such Restructuring Event will not be or is not, in its opinion, materially prejudicial to the interests of the Bondholders, the following provisions of this Condition 7 shall cease to have any further effect in relation to such Restructuring Event. |
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| | (ii) | If, at any time while any of the Bonds remains outstanding, a Restructuring Event occurs and (subject to Condition 7(a)(i)): |
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| | | (A) | within the Restructuring Period, either: |
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| | | | (i) | if at the time such Restructuring Event occurs there are Rated Securities (as defined below), a Rating Downgrade (as defined below) in respect of such Restructuring Event also occurs; or |
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| | | | (ii) | if at such time there are no Rated Securities, a Negative Rating Event (as defined below) also occurs; and |
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| | | (B) | an independent financial adviser shall have certified in writing to the Trustee that such Restructuring Event will be or is, in its opinion, materially prejudicial to the interests of the Bondholders (a "Negative Certification"), |
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| | | then, unless at any time the Issuer shall have given a notice under Condition 6(b) in respect of his Bond or Condition 6(c), in each case expiring prior to the Put Date (as defined below), the holder of each Bond will, upon the giving of a Put Notice (as defined below), have the option (the "Put Option") to require the Issuer to redeem or, at the option of the Issuer, purchase (or procure the purchase of) that Bond on the Put Date at its principal amount together with (or, where purchased, together with an amount equal to) interest accrued to (but excluding) the Put Date. |
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| | A Restructuring Event shall be deemed not to be materially prejudicial to the interests of the Bondholders if, notwithstanding the occurrence of a Rating Downgrade, the rating assigned to the Rated Securities by any Rating Agency (as defined below) is subsequently increased to an investment grade rating (BBB–/ Baa3 or their respective equivalents for the time being, or better) prior to any Negative Certification being issued. |
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| | Any certification by an independent financial adviser as aforesaid as to whether or not, in its opinion, any Restructuring Event will be or is materially prejudicial to the interests of the Bondholders shall, in the absence of manifest error, he conclusive and binding on the Trustee, the Issuer and the Bondholders. For the purposes of this Condition 8, an "independent financial adviser" means a financial adviser appointed by the Issuer and approved by the Trustee (such approval not to be unreasonably withheld or delayed) or, if the Issuer shall not have appointed such an adviser within 21 days after becoming aware of the occurrence of such Restructuring Event and the Trustee is indemnified to its satisfaction against the costs of such adviser, appointed by the Trustee following consultation with the Issuer. |
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| (b) | Promptly upon the Issuer becoming aware that a Put Event (as defined below) has occurred, and in any event not later than 14 days after the occurrence of a Put Event, the Issuer shall, and at any time upon the Trustee becoming similarly so aware the Trustee may, and if so requested by the holders of at least one-quarter in principal amount of the Bonds then outstanding shall, give notice (a "Put Event Notice") to the Bondholders in accordance with Condition 14 specifying the nature of the Put Event and the procedure for exercising the Put Option. |
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| (c) | To exercise the Put Option, the holder of a Bond must deliver such Bond to the specified office of any Paying Agent, on a day which is a Business Day (as defined in Condition 5) in the City of London and in the place of such specified office falling within the period (the "Put Period") commencing on the date on which a Put Event Notice is given and ending on the 45th day thereafter, accompanied by a duly completed and signed notice of exercise in the form (for the time being current) obtainable from any specified office of any Paying Agent (a "Put Notice") and in which the holder may specify a bank account complying with the requirements of Condition 5 to which payment is to be made under this Condition 7. Each Bearer Bond should be delivered together with all Coupons appertaining thereto maturing after the day (the "Put Date") being the fifteenth day after the date of expiry of the Put Period, failing which an amount equal to the face value of any such missing Coupon will be deducted from the amount due for payment. Each amount so deducted will be paid in the manner provided in Condition 5 against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant missing Coupon at any time before the expiry of 10 years after the Relevant Date in respect of the relevant Bearer Bond (whether or not the Coupon would otherwise have become void pursuant to Condition 9) or, if later, five years after the date on which such Coupon would have become due, but not thereafter. The Paying Agent to which such Bond and Put Notice are delivered shall issue to the Bondholder concerned a non-transferable receipt in respect of the Bond so delivered. Payment in respect of any Bond so delivered shall be made, if the holder duly specifies a bank account in the Put Notice to which payment is to be made on the Put Date, by transfer to that bank account and, in every other case, on or after the Put Date in each case against presentation and surrender or (as the case may be) endorsement of such receipt at any specified office of any Paying Agent, subject in any such case as provided in Condition 5. A Put Notice, once given, shall be irrevocable. For the purposes of Conditions 1, 9, 10, 11, 13 and 15, receipts issued pursuant to this Condition 7 shall be treated as if they were Bonds. The Issuer shall redeem or, at the option of the Issuer, purchase (or procure the purchase of) the relevant Bond on the applicable Put Date unless previously redeemed or purchased. |
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| (d) | For the purposes of these Terms and Conditions: |
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| | (i) | A "Negative Rating Event" shall be deemed to have occurred if (A) the Issuer does not either prior to or not later than 14 days after the date of a Negative Certification in respect of the relevant Restructuring Event, seek, and thereupon use all reasonable endeavours to obtain, a rating of the Bonds or any other unsecured and unsubordinated debt of the Issuer (or of any Subsidiary of the Issuer and which is guaranteed on an unsecured and unsubordinated basis by the Issuer) having an initial maturity of five years or more from a Rating Agency or (B) if it does so seek and use such endeavours, it is unable, as a result of such Restructuring Event, to obtain such a rating of at least investment grade (BBB–/Baa3, or their respective equivalents for the time being or better). |
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| | (ii) | A "Put Event" occurs on the date of the last to occur of (aa) a Restructuring Event, (bb) either a Rating Downgrade or, as the case may be, a Negative Rating Event and (cc) the relevant Negative Certification. |
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| | (iii) | "Rating Agency" means Standard & Poor's Ratings Services, a Division of the McGraw-Hill Companies Inc. or any of its subsidiaries and their successors ("Standard & Poor's") or Moody's Investors Service Limited or any of its subsidiaries and their successors ("Moody's") or any rating agency substituted for either of them (or any permitted substitute of them) by the Issuer from time to time with the prior written approval of the Trustee (such approval not to be unreasonably withheld or delayed). |
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| | (iv) | A "Rating Downgrade" shall he deemed to have occurred in respect of a Restructuring Event if the then current rating assigned to the Rated Securities by any Rating Agency (whether provided by a Rating Agency at the invitation of the Issuer or by its own volition) is withdrawn or reduced from an investment grade rating (BBB–/Baa3, or their respective equivalents for the time being, or better) to a non-investment grade rating (BB+Bal, or their respective equivalents for the time being, or worse) or, if the Rating Agency shall then have already rated the Rated Securities below investment grade (as described above), the rating is lowered one full rating category. |
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| | (v) | "Rated Securities" means the Bonds, if at any time and for so long as they shall have a rating from a Rating Agency, and otherwise any other unsecured and unsubordinated debt of the Issuer (or of any Subsidiary of the Issuer and which is guaranteed on an unsecured and unsubordinated basis by the Issuer) having an initial maturity of five years or more which is rated by a Rating Agency. |
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| | (vi) | "Restructuring Event" means the occurrence of any one or more of the following events: |
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| | | (A) | (aa) the Secretary of State for Trade and Industry (or any successor) giving the Issuer written notice of revocation of the Licence provided that the giving of notice pursuant to paragraph 3 of Part 1 of the PES Licence shall not be deemed to constitute the revocation of the PES Licence and the giving of notice pursuant to the equivalent provision in the Distribution Licence shall not be deemed to constitute the revocation of the Distribution Licence or (bb) the Issuer agreeing in writing with the Secretary of State for Trade and Industry (or any successor) to any revocation or surrender of the Licence or (cc) any legislation (whether primary or subordinate) being enacted terminating or revoking the Licence, except in any such case in circumstances where a licence or licences on substantially no less favourable terms is or are granted to the Issuer or a wholly-owned Subsidiary of the Issuer (the "Relevant Subsidiary") and in the case of such Relevant Subsidiary at the time of such grant it either executes in favour of the Trustee an unconditional and irrevocable guarantee in respect of the Bonds in such form as the Trustee may approve (such approval not to be unreasonably withheld or delayed) or becomes the primary obligor under the Bonds in accordance with Condition 12; or |
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| | | (B) | any modification (other than a modification which is of a formal, minor or technical nature) is made to the terms and conditions of the Licence unless two Directors of the Issuer have certified in good faith to the Trustee that the modified terms and conditions are not materially less favourable to the business of the Issuer provided that any modifications arising from a periodic review shall not constitute a Restructuring Event unless it results in the credit rating assigned to the short term debt of the Issuer by Standard & Poor's or Moody's being either (i) downgraded to a "speculative grade" rating "B" or below in the case of Standard & Poor's or to "not prime" or worse in the case of Moody's or (ii) withdrawn; or |
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| | | (C) | any legislation (whether primary or subordinate) is enacted which removes, qualifies or amends (other than an amendment which is of a formal, minor or technical nature) the duties of the Secretary of State for Trade and Industry (or any successor) and/or the Gas and Electricity Markets Authority (or any successor) under Section 3(A) of the Electricity Act 1989, unless two Directors of the Issuer have certified in good faith to the Trustee that such removal, qualification or amendment does not have a materially adverse effect on the financial condition of the Issuer; |
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| provided that the replacement of the PES Licence with separate distribution and supply licences pursuant to the provisions of Schedule 7 of the Utilities Act 2000 (including without limitation under a scheme under part II of such Schedule 7) and any notice, agreement, legislation, direction, scheme or modification relating to the implementation of the new regime contained in the Utilities Act 2000 shall not constitute a Restructuring Event. |
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| | (vii) | "Restructuring Period" means: |
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| | | (A) | if at the time a Restructuring Event occurs there are Rated Securities, the period of 90 days starting from and including the day on which that Restructuring Event occurs; or |
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| | | (B) | if at the time a Restructuring Event occurs there are no Rated Securities, the period starting from and including the day on which that Restructuring Event occurs and ending on the day 90 days following the later of (aa) the date on which the Issuer shall seek to obtain a rating pursuant to Condition 7(d)(i) prior to the expiry of the 14 days referred to in the definition of Negative Rating Event and (bb) the date on which a Negative Certification shall have been given to the Issuer in respect of that Restructuring Event. |
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| | (viii) | A Rating Downgrade or a Negative Rating Event or a non-investment grade rating shall be deemed not to have occurred as a result or in respect of a Restructuring Event if the Rating Agency making the relevant reduction in rating or, where applicable, declining to assign a rating of at least investment grade as provided in this Condition 7 does not announce or publicly confirm or inform the Trustee in writing at its request that the reduction or, where applicable, declining to assign a rating of at least investment grade was the result, in whole or in part, of any event or circumstance comprised in or arising as a result of the applicable Restructuring Event. |
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| | The Trust Deed provides that the Trustee is under no obligation to ascertain whether a Restructuring Event, a Negative Rating Event or any event which could lead to the occurrence of or could constitute a Restructuring Event has occurred and until it shall have actual knowledge or express notice pursuant to the Trust Deed to the contrary, the Trustee may assume that no Restructuring Event, Negative Rating Event or other such event has occurred. |
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All payments in respect of the Bonds (other than payments of interest in respect of Registered Bonds which will be made subject to the deduction of any United Kingdom income tax required to be withheld or deducted at source) by the Issuer shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature ("Taxes") imposed or levied by or on behalf of the United Kingdom, or any political sub-division of, or any authority in, or of, the United Kingdom having power to tax, unless the withholding or deduction of the Taxes is required by law. In that event (other than where the deduction or withholding is in respect of Registered Bonds as aforesaid), the Issuer will pay such additional amounts as may be necessary in order that the net amounts received by the Bondholders and Couponholders after the withholding or deduction shall equal the respective amounts which would have been receivable in respect of the Bonds or, as the case may be, Coupons in the absence of the withholding or deduction; except that no additional amounts shall be payable in relation to any payment in respect of any Bond or Coupon:
| (a) | to, or to a third party on behalf of, a holder who is liable to the Taxes in respect of the Bond or Coupon by reason of his having some connection with the United Kingdom other than the mere holding of the Bond or Coupon; or |
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| (b) | where the Coupon is presented for payment in the United Kingdom; or |
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| (c) | presented for payment more than 30 days after the Relevant Date except to the extent that a holder would have been entitled to additional amounts on presenting the same for payment on the last day of such period of 30 days; or |
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| (d) | to, or to a third party on behalf of, a holder who would not be liable or subject to the withholding or deduction by making a declaration of non-residence or other similar claim for exemption to the relevant tax authority. |
As used herein, "Relevant Date" means the date on which the payment first becomes due but, if the full amount of the money payable has not been received in London by the Principal Paying Agent or the Trustee
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on or before the due date, it means the date on which, the full amount of the money having been so received, notice to the effect shall have been duly given to the Bondholders by the Issuer in accordance with Condition 14.
Any reference in these Terms and Conditions to any amounts in respect of the Bonds shall be deemed also to refer to any additional amounts which may be payable under this Condition or under any undertakings given in addition to, or in substitution for, this Condition pursuant to the Trust Deed.
Bonds (whether in bearer or registered form) and Coupons (which for this purpose shall not include Talons) will become void unless presented for payment within periods of 10 years (in the case of principal) and five years (in the case of interest) from the Relevant Date in respect of the Bonds or, as the case may be, the Coupons, subject to the provisions of Conditions 5 or 7(c). There shall not be included in any Coupon sheet issued upon exchange of a Talon any Coupon which would be void upon issue under this Condition or Conditions 5 or 7(c).
The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in principal amount of the Bonds then outstanding or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Bondholders shall (subject in each case to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (b), (c), (e), (f), (g) and (h) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Bondholders), give notice to the Issuer that the Bonds are, and they shall accordingly thereby forthwith become, immediately due and repayable at their principal amount together with accrued interest (as provided in the Trust Deed) if any of the following events (each an "Event of Default") shall have occurred (unless such Event of Default has been remedied to the satisfaction of the Trustee):
| (a) | if default is made for a period of 14 days or more in the payment of any principal or the purchase price due in respect of any Bond pursuant to Condition 7 or 21 days or more in the payment of any interest due in respect of the Bonds or any of them; or |
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| (b) | if the Issuer fails to perform or observe any of its other obligations, covenants, conditions or provisions under the Bonds or the Trust Deed and (except where the Trustee shall have certified to the Issuer in writing that it considers such failure to be incapable of remedy in which case no such notice or continuation as is hereinafter mentioned will be required) such failure continues for the period of 60 days (or such longer period as the Trustee may in its absolute discretion permit) next following the service by the Trustee on the Issuer of notice requiring the same to be remedied; or |
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| (c) | if (i) any other indebtedness for borrowed money of the Issuer or any Principal Subsidiary becomes due and repayable prior to its stated maturity by reason of an event of default (howsoever described) or (ii) any such indebtedness for borrowed money is not paid when due or, as the case may be, within any applicable grace period (as originally provided) or (iii) the Issuer or any Principal Subsidiary fails to pay when due (or, as the case may be, within any originally applicable grace period) any amount payable by it under any present or future guarantee for, or indemnity in respect of, any indebtedness for borrowed money of any person or (iv) any security given by the Issuer or any Principal Subsidiary for any indebtedness for borrowed money of any person or any guarantee or indemnity of indebtedness for borrowed money of any person becomes enforceable by reason of default in relation thereto and steps are taken to enforce such security save in any such case where there is a bona fide dispute as to whether the relevant indebtedness for borrowed money or any such guarantee or indemnity as aforesaid shall be due and payable, provided that the aggregate amount of the relevant indebtedness for borrowed money in respect of which any one or more of the events mentioned above in this sub-paragraph (c) has or have occurred equals or exceeds £20,000,000 or its equivalent in other currencies (as determined by the Trustee) or, if greater, 3 per cent. of the Capital and Reserves, and for the purposes of this subparagraph (c), "indebtedness for borrowed money" shall exclude Project Finance Indebtedness; or |
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| (d) | if any order shall be made by any competent court or any resolution shall be passed for the winding up or dissolution of the Issuer, save for the purposes of amalgamation, merger, consolidation, reorganisation, reconstruction or other similar arrangement on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Bondholders; or |
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| (e) | if any order shall be made by any competent court or any resolution shall be passed for the winding up or dissolution of a Principal Subsidiary, save for the purposes of amalgamation, merger, consolidation, reorganisation, reconstruction or other similar arrangement (i) not involving or arising out of the insolvency of such Principal Subsidiary and under which all the surplus assets of such Principal Subsidiary are transferred to the Issuer or any of its other Subsidiaries or (ii) the terms of which have previously been approved in writing by the Trustee or by an Extraordinary Resolution of the Bondholders; or |
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| (f) | if the Issuer or any Principal Subsidiary shall cease to carry on the whole or substantially the whole of its business, save in each case for the purposes of amalgamation, merger, consolidation, reorganisation, reconstruction or other similar arrangement (i) not involving or arising out of the insolvency of the Issuer or such Principal Subsidiary and under which all or substantially all of its assets are transferred to another member of the Group or (ii) under which all or substantially all of its assets are transferred to a third party or parties (whether associates or not) for full consideration by the Issuer or a Principal Subsidiary on an arm's length basis or (iii) where the transferee is or immediately upon such transfer becomes a Principal Subsidiary or (iv) the terms of which have previously been approved in writing by the Trustee or by an Extraordinary Resolution of the Bondholders, provided that if the Issuer shall cease to hold or shall transfer the Licence other than where the Issuer ceases to hold the PES Licence (or the PES Licence has effect as separate distribution and supply licences) pursuant (in either case) to the provisions of Schedule 7 of the Utilities Act 2000 (including without limitation under a scheme under part II of such Schedule 7) it shall be deemed to have ceased to carry on the whole or substantially the whole of its business (and none of exceptions (i) to (iii) shall apply) unless the transferee assumes all the Issuer's obligations under the Bonds and the Trust Deed as primary obligor or gives a guarantee in form and substance acceptable to the Trustee in respect of the obligations of the Issuer under the Bonds and the Trust Deed; or |
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| (g) | if the Issuer or any Principal Subsidiary shall suspend or shall threaten to suspend payment of its debts generally or shall be declared or adjudicated by a competent court to be unable, or shall admit in writing its inability, to pay its debts (within the meaning of Section 123(1) or (2) of the Insolvency Act 1986) as they fall due, or shall be adjudicated or found insolvent by a competent court or shall enter into any composition or other similar arrangement with its creditors under Section 1 of the Insolvency Act 1986; or |
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| (h) | if a receiver, administrative receiver, administrator or other similar official shall be appointed in relation to the Issuer or any Principal Subsidiary or in relation to the whole or a substantial part of the undertaking or assets of any of them or a distress, execution or other process shall be levied or enforced upon or sued out against, or an encumbrancer shall take possession of, the whole or a substantial part of the assets of any of them and in any of the foregoing cases it or he shall not be paid out or discharged within 90 days (or such longer period as the Trustee may in its absolute discretion permit). |
For the purposes of sub-paragraph (g) above, Section 123(1)(a) of the Insolvency Act 1986 shall have effect as if for "£750" there was substituted "£250,000" or such higher figure as the Gas and Electricity Markets Authority (or any successor) may from time to time determine by notice in writing to the Secretary of State for Trade and Industry (or any successor) and the Issuer.
Neither the Issuer nor any Principal Subsidiary shall be deemed to be unable to pay its debts for the purposes of sub-paragraph (g) above if any such demand as is mentioned in Section 123(1)(a) of the Insolvency Act 1986 is being contested in good faith by the Issuer or the relevant Principal Subsidiary with recourse to all appropriate measures and procedures or if any such demand is satisfied before the expiration of such period as may be stated in any notice given by the Trustee under the first paragraph of this Condition 10.
For the purposes of these Terms and Conditions:
| (A) | "Principal Subsidiary" at any time shall mean a Subsidiary of the Issuer (not being an Excluded Subsidiary or any other Subsidiary of the Issuer more than 70 per cent. of whose indebtedness for borrowed money is Project Finance Indebtedness): |
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| | (i) | whose (a) net profits before tax or (b) gross assets represent 20 per cent. or more of the consolidated net profits before tax of the Group or consolidated gross assets of the Group respectively, in each case as calculated by reference to the then latest audited financial statements of such Subsidiary (consolidated in the case of a company which itself has Subsidiaries and which, in the normal course, prepares consolidated accounts) and the then latest audited consolidated financial statements of the Group; or |
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| | (ii) | to which is transferred all or substantially all of the business, undertaking and assets of a Subsidiary of the Issuer which immediately prior to such transfer is a Principal Subsidiary, whereupon the transferor Subsidiary shall immediately cease to be a Principal Subsidiary and the transferee Subsidiary shall cease to be a Principal Subsidiary under the provisions of this sub-paragraph (ii) (but without prejudice to the provisions of sub-paragraph (i) above), upon publication of its next audited financial statements; |
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| | all as more fully defined in the Trust Deed. |
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| | A report by the Auditors that in their opinion a Subsidiary of the Issuer is or is not or was or was not at any particular time or throughout any specified period a Principal Subsidiary shall, in the absence of manifest error, be conclusive and binding on all parties; |
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| (B) | "Capital and Reserves" means the aggregate of: |
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| | (i) | the amount paid up or credited as paid up on the share capital of the Issuer; and |
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| | (ii) | the total of the capital, revaluation and revenue reserves of the Group, including any share premium account, capital redemption reserve and credit balance on the profit and loss account but excluding sums set aside for taxation and amounts attributable to outside shareholders in Subsidiary Undertakings (as defined below) and deducting any debit balance on the profit and loss account, |
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| | all as shown in the then latest audited consolidated balance sheet of the Group prepared in accordance with the historical cost convention (as modified by the revaluation of certain fixed assets) for the purposes of the Companies Act 1985, but adjusted as may be necessary in respect of any variation in the paid up share capital or share premium account of the Issuer since the date of that balance sheet and further adjusted as may be necessary to reflect any change since the date of that balance sheet in the Subsidiary Undertakings comprising the Group and/or as the Auditors (as defined in the Trust Deed) may consider appropriate. |
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| | A report by the Auditors as to the amount of the Capital and Reserves at any given time shall, in the absence of manifest error, be conclusive and binding on all parties; |
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| (C) | "Excluded Subsidiary" means any Subsidiary of the Issuer (other than a Licensed Subsidiary): |
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| | (i) | which is a company whose principal assets and business are constituted by the ownership, acquisition, development and/or operation of an asset whether directly or indirectly; |
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| | (ii) | none of whose indebtedness for borrowed money in respect of the financing of such ownership, acquisition, development and/or operation of an asset is subject to any recourse whatsoever to any member of the Group (other than the Subsidiary itself or another Excluded Subsidiary) in respect of the repayment thereof, except as expressly referred to in paragraph (G)(ii)(c); and |
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| | (iii) | which has been designated as such by the Issuer by written notice to the Trustee, provided that the Issuer may given written notice to the Trustee at any time that any Excluded Subsidiary is no longer an Excluded Subsidiary, whereupon it shall cease to be an Excluded Subsidiary; |
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| (D) | "Group" means the Issuer and the Subsidiary Undertakings; |
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| (E) | "Subsidiary Undertaking" shall have the meaning given to it by Section 258 of the Companies Act 1985 (but shall exclude any undertakings (as defined in the Companies Act 1985) whose accounts are not included in the then latest published audited consolidated accounts of the Issuer, nor (in the case of an undertaking which has first become a subsidiary undertaking of a member of the Group since the date as at which any such audited accounts were prepared) would its accounts have been so included or consolidated if it had become so on or before that date); |
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| (F) | "indebtedness for borrowed money" means any present or future indebtedness (whether being principal, premium, interest or other amounts) for or in respect of (i) money borrowed, (ii) liabilities under or in respect of any acceptance credit or (iii) any notes, bonds, debentures, debenture stock, loan stock or other securities offered, issued or distributed whether by way of public offer, private placing, acquisition, consideration or otherwise and whether issued for cash or in whole or in part for a consideration other than cash; |
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| (G) | "Project Finance Indebtedness" means any indebtedness for borrowed money to finance the ownership, acquisition, development and/or operation of an asset: |
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| | (i) | which is incurred by an Excluded Subsidiary; or |
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| | (ii) | in respect of which the person or persons to whom any such indebtedness for borrowed money is or may be owed by the relevant borrower (whether or not a member of the Group) has or have no recourse whatsoever to any member of the Group (other than an Excluded Subsidiary) for the repayment thereof other than: |
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| | | (a) | recourse to such borrower for amounts limited to the cash flow or net cash flow (other than historic cash flow or historic net cash flow) from such asset; and/or |
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| | | (b) | recourse to such borrower for the purpose only of enabling amounts to be claimed in respect of such indebtedness for borrowed money in an enforcement of any encumbrance given by such borrower over such asset or the income, cash flow or other proceeds deriving therefrom (or given by any shareholder or the like in the borrower over its shares or the like in the capital of the borrower) to secure such indebtedness for borrowed money, provided that (aa) the extent of such recourse to such borrower is limited solely to the amount of any recoveries made on any such enforcement, and (bb) such person or persons are not entitled, by virtue of any right or claim arising out of or in connection with such indebtedness for borrowed money, to commence proceedings for the winding up or dissolution of the borrower or to appoint or procure the appointment of any receiver, trustee or similar person or officer in respect of the borrower or any of its assets (save for the assets the subject of such encumbrance); and/or |
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| | | (c) | recourse to such borrower generally, or directly or indirectly to a member of the Group, under any form of assurance, undertaking or support, which recourse is 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 being a payment obligation or an obligation to procure payment by another or an indemnity in respect thereof or any obligation to comply or to procure compliance by another with any financial ratios or other tests of financial condition) by the person against whom such recourse is available; |
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| (H) | "Subsidiary" means a subsidiary within the meaning of Section 736 of the Companies Act, 1985; |
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| (I) | "Licensed Subsidiary" means any Subsidiary of the Issuer which holds a public electricity supply licence granted under the Electricity Act 1989 or a distribution licence granted under Section 6(1)(c) of the Electricity Act 1989 as amended by Section 30 of the Utilities Act 2000; |
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| (J) | "Licence" means the PES Licence until such time as the Secretary of State for Trade and Industry (or any successor) makes a scheme under Section 13(2)(a) of Schedule 7 of the Utilities Act 2000 for the PES Licence to have effect as if it were a distribution licence and a supply licence granted under Section 6(1)(c) and 6(1)(d) respectively of the Electricity Act 1989 as amended by Section 30 of the Utilities Act 2000 from which point on it means the Distribution Licence; |
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| (K) | "PES Licence" means the public electricity supply licence granted by the Secretary of State for Energy to the Issuer under the Electricity Act 1989 in relation to its authorised area and excluding any second tier supply licence; and |
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| (L) | "Distribution Licence" means either the distribution licence granted to the Issuer under Section 6(1)(c) of the Electricity Act 1989 as amended by Section 30 of the Utilities Act 2000 or the licence of the Issuer having effect as if it were a distribution licence granted under Section 6(1)(c) of the Electricity Act 1989 as amended by Section 30 of the Utilities Act 2000, as appropriate. |
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The Trustee may at any time, at its discretion and without notice, take such proceedings against the Issuer as it may think fit to enforce the provisions of the Trust Deed, the Bonds and the Coupons but it shall not be bound to take any proceedings or any other action in relation to the Trust Deed, the Bonds or the Coupons unless (a) it shall have been so directed by an Extraordinary Resolution of the Bondholders or so requested in writing by the holders of at least one-quarter in principal amount of the Bonds then outstanding, and (b) it shall have been indemnified to its satisfaction. No Bondholder or Couponholder shall be entitled to proceed directly against the Issuer unless the Trustee, having become bound so to proceed, fails so to do within a reasonable period and such failure shall be continuing.
The Trustee may, without the consent of the Bondholders or Couponholders, agree with the Issuer to the substitution in place of the Issuer (or of any previous substitute under this Condition) as the principal debtor under the Bonds, the Coupons and the Trust Deed of any Subsidiary of the Issuer, subject to (a) the Bonds being unconditionally and irrevocably guaranteed by the Issuer (save where the Issuer has transferred the Licence to the substituted Subsidiary), (b) the Trustee being satisfied that the interests of the Bondholders will not be materially prejudiced by the substitution, and (c) certain other conditions set out in the Trust Deed being complied with.
| 13. | REPLACEMENT OF BONDS AND COUPONS |
Should any Bond or Coupon be lost, stolen, mutilated, defaced or destroyed, it may be replaced at the specified office of the Paying Agent in London, in the case of a Bearer Bond or Coupon, or the Registrar, in the case of a Registered Bond, upon payment by the claimant of the expenses incurred in connection with the replacement and on such terms as to evidence and indemnity as the Issuer may reasonably require. Mutilated or defaced Bonds or Coupons must be surrendered before replacements will be issued.
Notices to holders of Registered Bonds will be mailed to them at their respective addresses in the Register and deemed to have been given on the fourth day (excluding Sundays) after the date of mailing, provided that, if at any time by reason of suspension or curtailment (or expected suspension or curtailment) of postal services within the United Kingdom or elsewhere, the Issuer is unable effectively to give notice to holders of Registered Bonds through the post, notices to holders of Registered Bonds will be valid if given in the same manner as other notices set out below.
Other notices to the Bondholders (including notices to holders of Bearer Bonds) will be valid if published in a leading English language daily newspaper published in London or such other English language daily newspaper with general circulation in Europe as the Trustee may approve. Any notice shall be deemed to have been given on the date of publication or, if so published more than once, on the date of the first publication. It is expected that publication will normally be made in the Financial Times. If publication as provided above is not practicable, notice will be given in such other manner, and shall be deemed to have been given on such date, as the Trustee may approve.
Couponholders will be deemed for all purposes to have notice of the contents of any notice given to the Noteholders in accordance with this Condition.
| 15. | MEETINGS OF BONDHOLDERS, MODIFICATION, WAIVER AND AUTHORISATION |
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| (a) | The Trust Deed contains provisions for convening meeting of the Bondholders to consider any matter affecting their interests, including the modification by Extraordinary Resolution of these Terms and Conditions or the provisions for the Trust Deed. The quorum at any meeting for passing an Extraordinary Resolution will be one or more persons present holding or representing a clear majority in principal amount of the Bonds for the time being outstanding, or at any adjourned such meeting one or more persons present whatever the principal amount of the Bonds held or represented by him or them, except that at any meeting, the business of which includes the modification of certain of the provisions of these Terms and Conditions and certain of the provisions of the Trust Deed, the necessary quorum for passing an Extraordinary Resolution will be one or more persons present holding or representing not less than two-thirds, or at any adjourned such meeting not less than one-third, of the principal amount of the Bonds for the time being outstanding. An Extraordinary Resolution passed at any meeting of the Bondholders will be binding on all Bondholders, whether or not they are present at the meeting, and on all Couponholders. |
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| (b) | The Trustee may agree, without the consent of the Bondholders or Couponholders, to any modification (subject to certain exceptions) of, or to the waiver or authorisation of any breach or proposed breach of, any of these Terms and Conditions or any of the provisions of the Trust Deed which is not, in the opinion of the Trustee, materially prejudicial to the interests of the Bondholders or to any modification which is of a formal, minor or technical nature or to correct a manifest error. |
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| (c) | In connection with the exercise by it of any of its trusts, powers, authorities or discretions (including, without limitation, any modification, waiver, authorisation or substitution), the Trustee shall have regard to the interests of the Bondholders as a class and, in particular but without limitation, shall not have regard to the consequences of the exercise of its trusts, powers, authorities or discretions for individual Bondholders and Couponholders resulting from their being for any purpose domiciled or resident in or otherwise connected with, or subject to the jurisdiction of, any particular territory and the Trustee shall not be entitled to require, nor shall any Bondholder or Couponholder be entitled to claim, from the Issuer, the Trustee or any other person any indemnification or payment in respect of any tax consequences of any such exercise upon individual Bondholders or Couponholders except to the extent already provided for in Condition 8 and/or any undertaking given in addition to, or in substitution for, Condition 8 pursuant to the Trust Deed. |
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| (d) | Any modification, waiver or authorisation shall be binding on the Bondholders and the Couponholders and, unless the Trustee agrees otherwise, any modification shall be notified by the Issuer to the Bondholders as soon as practicable thereafter in accordance with Condition 14. |
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| 16. | INDEMNIFICATION OF THE TRUSTEE |
The Trust Deed contains provisions for the indemnification of the Trustee and for its relief from responsibility, including provisions relieving it from taking action unless indemnified to its satisfaction.
The Issuer is at liberty from time to time, without the consent of the Bondholders or Couponholders, to create and issue further bonds or notes (whether in bearer or registered form) either (a) ranking pari passu in all respects (or in all respects save for the first payment of interest thereon) and so that the same shall be consolidated and form a single series with the outstanding bonds or notes of any series (including the Bonds) constituted by the Trust Deed or any supplemental deed or (b) upon such terms as to ranking, interest, conversion, redemption and otherwise as the Issuer may determine at the time of the issue. Any further bonds or notes which are to form a single series with the outstanding bonds or notes of any series (including the Bonds) constituted by the Trust Deed or any supplemental deed shall, and any other further bonds or notes may (with the consent of the Trustee), be constituted by a deed supplemental to the Trust Deed. The Trust Deed contains provisions for convening a single meeting of the Bondholders and the holders of bonds or notes of other series in certain circumstances where the Trustee so decides.
The Bonds confer no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Bonds, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
The Trust Deed, the Bonds and the Coupons are governed by, and will be construed in accordance with, English law.
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PRINCIPAL PAYING AGENT
Citibank, N.A.
P.O. Box 18055
5 Carmelite Street
London EC4Y 0PA
OTHER PAYING AGENTS
Citibank International plc
c/- The Bank of New York
Avenue des Arts 35
Kunstlaan
B-1040 Brussels | BNP Paribas S.A.
10A Boulevard Royal
L-2093 Luxembourg |
and/or such other or further Principal Paying Agent and other Paying Agents and/or specified offices as may from time to time be appointed by the Issuer with the approval of the Trustee and notice of which has been given to the Bondholders.
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| EXECUTED as a deed by | ) | |
| UNITED UTILITIES ELECTRICITY PLC | ) | |
| acting by | ) | ……………………… |
| and | ) | Director |
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| | | ……………………… |
| | | Director/Secretary |
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| THE COMMON SEAL of | ) |
| THE LAW DEBENTURE TRUST | ) |
| CORPORATION p.l.c. | ) |
| was affixed to this deed | ) |
| in the presence of: | ) |
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| | ……………………… |
| | Director |
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| | ……………………… |
| | Authorised Signatory |
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| | DATED 20TH DECEMBER, 2001 |
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| | UNITED UTILITIES ELECTRICITY PLC |
| | (formerly NORWEB plc) |
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| | - and - |
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| | THE LAW DEBENTURE TRUST |
| | CORPORATION p.l.c. |
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| | _______________________________________ |
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| | THIRD SUPPLEMENTAL TRUST DEED |
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| | constituting |
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| | £50,000,000 |
| | 8.875 per cent. Bonds 2026 |
| | _______________________________________ |
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| | For the Issuer: |
| | SLAUGHTER AND MAY |
| | 35 Basinghall Street |
| | London EC2V 5DB |
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| | For the Trustee: |
| | ALLEN & OVERY |
| | One New Change |
| | London EC4M 9QQ |
DATED 15TH FEBRUARY, 2002
UNITED UTILITIES ELECTRICITY PLC
(formerly NORWEB plc)
- and -
THE LAW DEBENTURE TRUST CORPORATION p.l.c.
_______________________________________
FOURTH SUPPLEMENTAL TRUST DEED
constituting
£100,000,000
8.875 per cent. Bonds 2026
_______________________________________
For the Issuer:
SLAUGHTER AND MAY
35 Basinghall Street
London EC2V 5DB
For the Trustee:
ALLEN & OVERY
One New Change
London EC4M 9QQ
CONTENTS
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THIS FOURTH SUPPLEMENTAL TRUST DEED is made on 15th February, 2002 BETWEEN UNITED UTILITIES ELECTRICITY PLC (formerly NORWEB plc), a company incorporated under the laws of England and Wales with company number 2366949, whose registered office is at Dawson House, Great Sankey, Warrington WA5 3LW, England (hereinafter called the "Issuer") of the one part and THE LAW DEBENTURE TRUST CORPORATION p.l.c., a company incorporated under the laws of England and Wales with company number 1675231, whose registered office is at Fifth Floor, 100 Wood Street, London EC2V 7EX, England (hereinafter called the "Trustee", which expression shall, wherever the context so admits, include such company and any other trustee or trustees for the time being of these presents) of the other part.
WHEREAS:
| (1) | This Fourth Supplemental Trust Deed is supplemental to: |
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| | (A) | the Trust Deed dated 3rd August, 1995 (the "Original Trust Deed") made between the Issuer and the Trustee and constituting the £200,000,000 8.875 per cent. Bonds 2026 of the Issuer (the "Original Bonds"); |
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| | (B) | the First Supplemental Trust Deed dated 2nd July, 2001 (the "First Supplemental Trust Deed") made between the Issuer and the Trustee modifying the Original Trust Deed; |
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| | (C) | the Second Supplemental Trust Deed dated 6th July, 2001 (the "Second Supplemental Trust Deed") made between the Issuer and the Trustee and constituting the £100,000,000 8.875 per cent. Bonds 2026 of the Issuer; and |
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| | (D) | the Third Supplemental Trust Deed dated 20th December, 2001 (the "Third Supplemental Trust Deed" and, together with the Original Trust Deed, the First Supplemental Trust Deed and the Second Supplemental Trust Deed, the "Subsisting Trust Deeds") made between the Issuer and the Trustee and constituting the £50,000,000 8.875 per cent. Bonds 2026 of the Issuer. |
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| (2) | By virtue of Clause 2(D)(i) of the Original Trust Deed the Issuer shall be at liberty from time to time (but subject always to the provisions of these presents) without the consent of the Holders or Couponholders to create and issue further bonds or notes (whether in bearer or registered form) either (a) ranking pari passu in all respects (or in all respects save for the first payment of interest thereon) and so that the same shall be consolidated and form a single series with the Original Bonds and/or the Further Securities of any series or (b) upon such terms as to ranking, interest, conversion, redemption and otherwise as the Issuer may at the time of the issue thereof determine. |
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| (3) | By resolutions of the Board of Directors of the Issuer passed on • February, 2002 the Issuer has resolved to issue £100,000,000 8.875 per cent. Bonds 2026 of the Issuer to be constituted by this Fourth Supplemental Trust Deed and to be consolidated and form a single series with the Original Bonds, the £100,000,000 8.875 per cent. Bonds 2026 of the Issuer constituted by the Second Supplemental Trust Deed and the £50,000,000 8.875 per cent. Bonds 2026 of the Issuer constituted by the Third Supplemental Trust Deed from (and including) 27th March, 2002. |
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| (4) | By virtue of Clause 18(B) of the Original Trust Deed the Trustee may, without the consent or sanction of the Holders or Couponholders, at any time and from time to time concur with the Issuer in making any modification to these presents if, in the opinion of the Trustee, such modification is of a formal, minor or technical nature. |
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| (5) | The Trustee has concurred with the Issuer that the Original Trust Deed (as previously modified) shall be modified in the manner hereinafter appearing and the Trustee, as evidenced by its execution hereof, is of the opinion that such modification is of a formal, minor or technical nature. |
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| (6) | The New Bonds (as defined below) when issued as definitive bonds in exchange for the New Global Bond (as defined below) will be in bearer form with New Coupons (as defined below) and talons attached. |
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| NOW THIS FOURTH SUPPLEMENTAL TRUST DEED WITNESSES AND IT IS AGREED AND DECLARED as follows: |
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| 1. | DEFINITIONS |
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| (A) | All expressions defined in the Subsisting Trust Deeds shall, unless there is anything in the subject or context inconsistent therewith, have the same meanings in this Fourth Supplemental Trust Deed. |
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| (B) | In this Fourth Supplemental Trust Deed, unless there is anything in the subject or context inconsistent therewith, the following expressions shall have the following meanings: |
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| | "New Bearer Bonds" means those of the New Bonds which are for the time being in bearer form; |
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| | "New Bondholders" means the several persons who are for the time being holders of the New Bonds; |
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| | "New Bonds" means the bonds (whether in bearer or registered form) comprising the said £100,000,000 8.875 per cent. Bonds 2026 of the Issuer hereby constituted or the principal amount thereof for the time being outstanding or, as the context may require, a specific number thereof and includes any replacements for New Bonds (whether in bearer or registered form, as the case may be) issued pursuant to Condition 13 and (except for the purposes of Clause 2) the New Global Bond; and |
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| | "New Couponholders" means the several persons who are for the time being holders of the New Coupons; |
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| | "New Coupons" means the Coupons appertaining to the New Bearer Bonds; |
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| | "New Global Bond" means the temporary global bond in respect of the New Bonds to be issued pursuant to Clause 3(A) in the form or substantially in the form set out in the First Schedule; and |
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| | "New Registered Bonds" means those of the New Bonds which are for the time being in registered form. |
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| (C) | In this Fourth Supplemental Trust Deed references to Schedules, Clauses, sub-clauses, paragraphs and sub-paragraphs shall, unless there is anything in the subject or context inconsistent therewith, be construed as references to the Schedules to this Fourth Supplemental Trust Deed and to the Clauses, sub-clauses, paragraphs and sub-paragraphs of this Fourth Supplemental Trust Deed respectively. |
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| 2. | COVENANT TO REPAY AND TO PAY INTEREST ON NEW BONDS |
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| (A) | The aggregate principal amount of the New Bonds constituted hereunder is limited to £100,000,000. The New Bonds, as and when issued, shall be further securities but shall, on and from 27th March 2002, be consolidated and form a single series with the Original Bonds. |
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| (B) | The Issuer covenants with the Trustee that it will, in accordance with these presents, on the due date for the final maturity of the New Bonds provided for in the Conditions, or on such earlier date as the same or any part thereof may become due and payable thereunder, pay or procure to be paid unconditionally to or to the order of the Trustee in Pounds Sterling in London in immediately available funds the principal amount of the New Bonds repayable on that date together with the applicable premium and shall in the mean time and until such date (both before and after any judgment or other order of a court of competent jurisdiction) pay or procure to be paid unconditionally to or to the order of the Trustee as aforesaid interest (which shall accrue from day to day) on the principal amount of the New Bonds at the rate of 8.875 per cent. per annum payable (less United Kingdom income tax, if appropriate) annually in arrear on 25th March in each year PROVIDED THAT |
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| | (i) | every payment of principal, premium (if any) or interest in respect of the New Bearer Bonds and every payment of principal and premium (if any) in respect of the New Registered Bonds to, or to the account of, the Principal Paying Agent in the manner provided in the Agency Agreement as amended shall operate in satisfaction pro tanto of the relevant covenant by the Issuer in this Clause, except to the extent that there is a default in the subsequent payment thereof in accordance with the Conditions to the relevant New Bondholders or New Couponholders (as the case may be); |
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| | (ii) | every payment of interest in respect of the New Registered Bonds to the relevant New Bondholders as provided in the Conditions (whether by the Issuer or the Registrar) shall operate in satisfaction pro tanto of the relative covenant by the Issuer in this Clause; |
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| | (iii) | in any case where payment of principal or premium (if any) is not made to the Trustee or the Principal Paying Agent on or before the due date, interest shall continue to accrue on such premium (both before and after any judgment or any other order of a court of competent jurisdiction) at the rate aforesaid (or, if higher, the rate of interest on judgment debts for the time being provided by English law) up to and including the date which the Trustee determines to be the date on and after which payment is to be made to the New Bondholders in respect thereof as stated in a notice given to the New Bondholders in accordance with Condition 14 (such date to be not later than 30 days after the day on which the whole of such principal amount and premium (if any), together with an amount equal to the interest which has accrued and is to accrue pursuant to this proviso up to and including that date, has been received by the Trustee or the Principal Paying Agent); and |
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| | (iv) | in any case where payment of the whole or any part of the principal amount of, or premium (if any) on, any New Bond is improperly withheld or refused upon due presentation thereof (other than in circumstances contemplated by proviso (iii) above) |
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| | | interest shall accrue on that principal amount or premium payment of which has been so withheld or refused (both before and after any judgment or other order of a court of competent jurisdiction) at the rate aforesaid (or, if higher, the rate of interest on judgment debts for the time being provided by English law) from and including the date of such withholding or refusal up to and including the date on which, upon further presentation of the relevant New Bond, payment of the full amount (including interest as aforesaid) in Pounds Sterling payable in respect of such New Bond is made or (if earlier) the seventh day after notice is given to the relevant New Bondholder (either individually or in accordance with Condition 14) that the full amount (including interest as aforesaid) in Pounds Sterling payable in respect of such New Bond is available for payment, provided that, upon further presentation thereof being duly made, such payment is made. |
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| | The Trustee will hold the benefit of this covenant on trust for the New Bondholders and New Couponholders and itself in accordance with these presents. |
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| 3. | FORM AND ISSUE OF NEW BONDS AND NEW COUPONS |
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| (A) | (1) | The New Bearer Bonds shall be represented initially by the New Global Bond which the Issuer shall issue to a bank depositary common to both Euroclear and Clearstream on terms that such depositary shall hold the same for the account of the persons who would otherwise be entitled to receive the New Bearer Bonds in definitive form ("Definitive New Bearer Bonds") (as notified to such depositary by The Royal Bank of Scotland plc) and the successors in title to such persons as appearing in the records of Euroclear and Clearstream for the time being. |
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| | (2) | The New Global Bond shall be printed or typed in the form, or substantially in the form, set out in the First Schedule. The New Global Bond shall be in the aggregate principal amount shown therein and shall be signed manually by a person duly authorised by the Issuer on behalf of the Issuer and shall be authenticated by or on behalf of the Principal Paying Agent. The New Global Bond so executed and authenticated shall be a binding and valid obligation of the Issuer. |
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| | (3) | The Issuer shall issue the Definitive New Bearer Bonds (together with the unmatured New Coupons attached) in exchange for the New Global Bond in accordance with the provisions thereof. Pending exchange of the entire principal amount of the New Global Bond the holder thereof shall, subject to the terms thereof, be deemed to be the holder of the New Bearer Bonds and the New Coupons represented thereby for all purposes. |
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| | (4) | The Definitive New Bearer Bonds and the New Coupons shall be in the respective forms or substantially in the respective forms set out in the First Schedule and the Definitive New Bearer Bonds shall be issued in the denominations of £1,000, £10,000 and £100,000 each (serially numbered) and shall be endorsed with the Conditions. Title to the Definitive New Bearer Bonds and the New Coupons shall pass by delivery. |
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| (B) | The New Registered Bonds shall be issued in definitive registered form, shall be in the form or substantially in the form set out in the First Schedule in the denomination and transferable in units of £1 each or integral multiples thereof, shall be serially numbered and shall be endorsed with a Form of Transfer in the form, or substantially in the form, also set out in the Second Schedule and with the Conditions. Title to the New Registered Bonds in definitive form shall pass upon the registration of transfers in respect thereof in accordance with the provisions of these presents. |
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| (C) | The Definitive New Bearer Bonds and the New Registered Bonds in definitive form shall be signed manually or in facsimile by a Director of the Issuer on behalf of the Issuer and, in the case of the Definitive New Bearer Bonds, shall be authenticated by or on behalf of the Principal Paying Agent. The Issuer may use the facsimile signature of any person who, at the date such signature is affixed, is a Director of the Issuer, notwithstanding that at the time of issue of any of the Definitive New Bearer Bonds or New Registered Bonds in definitive form he may have ceased for any reason to be the holder of such office. The New Coupons shall not be signed. The Definitive New Bearer Bonds so executed and authenticated, the New Registered Bonds in definitive form so executed, and the New Coupons, upon execution and authentication of the relevant Definitive New Bearer Bonds, shall be binding and valid obligations of the Issuer. |
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| 4. | MODIFICATIONS |
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| (A) | The provisions of the Original Trust Deed are hereby modified with immediate effect by the deletion from Clause 13(xiv) of the words "(such approval, unless so expressed, not to constitute approval for the purposes of Section 57 of the Financial Services Act 1986 of the United Kingdom of any such notice which is an investment advertisement (as therein defined))" and the substitution therefor of the words "(such approval, unless so expressed, not to constitute approval for the purposes of Section 21 of the Financial Services and Markets Act 2000 of Great Britain (the "FSMA") of a communication within the meaning of Section 21 of the FSMA". |
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| 5. | RIGHTS OF THIRD PARTIES |
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| | A person who is not a party to this Fourth Supplemental Trust Deed or any trust deed supplemental hereto has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Fourth Supplemental Trust Deed or any trust deed supplemental hereto, but this does not affect any right or remedy of a third party which exists or is available apart from that Act. |
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| 6. | GENERAL |
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| (A) | The Subsisting Trust Deeds shall henceforth be read and construed in conjunction with this Fourth Supplemental Trust Deed as one document. |
| (B) | A memorandum of this Fourth Supplemental Trust Deed shall be endorsed by the Trustee on the Original Trust Deed and by the Issuer on the duplicate thereof. |
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| (C) | This Fourth Supplemental Trust Deed may be executed in counterparts, each of which, taken together, shall constitute one and the same Fourth Supplemental Trust Deed and any party may enter into this Fourth Supplemental Trust Deed by executing a counterpart. |
IN WITNESS whereof this Fourth Supplemental Trust Deed has been executed as a deed by the Issuer and the Trustee and entered into the day and year first above written.
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THE FIRST SCHEDULE
PART 1
- FORM OF NEW GLOBAL BOND -
UNITED UTILITIES ELECTRICITY PLC
(formerly NORWEB plc)
(Incorporated in England with limited liability under the Companies Act 1985
with registered number 2366949)
TEMPORARY GLOBAL BOND
representing
£100,000,000 8.875 PER CENT. BONDS 2026
This Bond is a temporary Global Bond without interest coupons in respect of £100,000,000 in principal amount of a duly authorised issue of Bonds of United Utilities Electricity PLC (formerly NORWEB plc) (the "Issuer"), designated as specified in the title hereof (the "Bonds"), limited to the aggregate principal amount of One Hundred Million Pounds Sterling (£100,000,000) and constituted by a Fourth Supplemental Trust Deed of even date herewith (the "Fourth Supplemental Trust Deed") between the Issuer and The Law Debenture Trust Corporation p.l.c. supplemental to the Third Supplemental Trust Deed between the Issuer and the Law Debenture Trust Corporation p.l.c. dated 20th December, 2001 (the "Third Supplemental Trust Deed"), the Second Supplemental Trust Deed between the Issuer and The Law Debenture Trust Corporation p.l.c. dated 6th July, 2001 (the "Second Supplemental Trust Deed"), the First Supplemental Trust Deed between the Issuer and The Law Debenture Trust Corporation p.l.c. dated 2nd July, 2001 (the "First Supplemental Trust Deed") and the Trust Deed dated 3rd August, 1995 (together with the First, Second, Third and Fourth Supplemental Trust Deeds, the "Trust Deed") between the Issuer and The Law Debenture Trust Corporation p.l.c. as trustee (the trustee for the time being thereof being herein called the "Trustee"). References herein to the Conditions (or to any particular numbered Condition) shall be to the Conditions (or that particular one of them) set out in the Second Schedule to the Fourth Supplemental Trust Deed.
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| | Subject as provided in this temporary Global Bond the Issuer promises to pay to the bearer the principal amount of this temporary Global Bond (being at the date hereof One Hundred Million Pounds Sterling (£100,000,000)) on 25th March, 2026 (or on such earlier date as the said principal amount may become repayable in accordance with the Conditions or the Trust Deed) and to pay interest annually in arrear on 25th March on the principal amount from time to time of this temporary Global Bond at the rate of 8.875 per cent. per annum (less United Kingdom income tax, if appropriate) together with such premium and other amounts (if any) as may be payable, all subject to and in accordance with the Conditions and the provisions of the Trust Deed. |
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| 2. | Exchange for definitive Bearer Bonds and purchases |
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| | This temporary Global Bond is exchangeable in whole or in part upon the request of the bearer for definitive Bearer Bonds only on and subject to the terms and conditions set out below. The definitive Bearer Bonds to be issued on such exchange will be in bearer form in the denominations of £1,000, £10,000 and £100,000 each with interest coupons and one talon ("Coupons") attached. |
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| | On and after 27th March, 2002 this temporary Global Bond may be exchanged in whole or in part at the specified office of the Principal Paying Agent (or such other place as the Trustee may agree) for definitive Bearer Bonds and the Issuer shall procure that the Principal Paying Agent shall issue and deliver, in full or partial exchange for this temporary Global Bond, definitive Bearer Bonds (together with the Coupons appertaining thereto) in an aggregate principal amount equal to the principal amount of this temporary Global Bond submitted for exchange Provided that definitive Bearer Bonds will be so issued and delivered only if, and to the extent that, there shall have been presented to the Issuer a certificate from Euroclear Bank S.A./N.V. as operator of the Euroclear system ("Euroclear") or from Clearstream Banking, société anonyme, as operator of the Clearstream system ("Clearstream")substantially in the form of the certificate attached as Exhibit A. |
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| | Any person who would, but for the provisions of this temporary Global Bond and the Trust Deed, otherwise be entitled to receive a definitive Bearer Bond or definitive Bearer Bonds shall not be entitled to require the exchange of an appropriate part of this temporary Global Bond for a definitive Bearer Bond or definitive Bearer Bonds unless and until he shall have delivered or caused to be delivered to Euroclear or Clearstream a certificate substantially in the form of the certificate attached as Exhibit B (copies of which form of certificate will be available at the offices of Euroclear in Brussels and Clearstream in Luxembourg and the specified office of each of the Paying Agents). |
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| | Upon (i) any exchange of a part of this temporary Global Bond for a definitive Bearer Bond or definitive Bearer Bonds or (ii) the purchase by or on behalf of the Issuer or any Subsidiary of the Issuer and cancellation of a part of this temporary Global Bond in accordance with the Conditions, the portion of the principal amount hereof so exchanged or so purchased and cancelled shall be endorsed by or on behalf of the Principal Paying Agent on behalf of the Issuer on Part II of the Schedule hereto, whereupon the principal amount hereof shall be reduced for all purposes by the amount so exchanged or so purchased and cancelled and, in each case, endorsed. |
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| 3. | Payments |
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| | Until the entire principal amount of this temporary Global Bond has been extinguished, this temporary Global Bond shall in all respects be entitled to the same benefits as the definitive Bearer Bonds for the time being represented hereby and shall be entitled to the benefit of, and be bound by, the Trust Deed, except that the holder of this temporary Global Bond shall not (unless upon due presentation of this temporary Global Bond for exchange, delivery of the appropriate number of definitive Bearer Bonds (together with the Coupons appertaining thereto) is improperly withheld or refused and such withholding or refusal is continuing at the relevant payment date) be entitled to receive any payment of interest on this temporary Global Bond except upon certification as hereinafter provided. Upon any payment of principal, premium or interest on this temporary Global Bond the amount so paid shall be endorsed by or on behalf of the Principal Paying Agent on behalf of the Issuer on Part I of the Schedule hereto. |
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| | Payments of interest in respect of Bonds for the time being represented by this temporary Global Bond shall be made to the bearer only upon presentation to the Issuer of a certificate from Euroclear or from Clearstream substantially in the form of the certificate attached as Exhibit A. Any person who would, but for the provisions of this temporary Global Bond and of the Trust Deed, otherwise be beneficially entitled to a payment of interest on this temporary Global Bond shall not be entitled to require such payment unless and until he shall have delivered or caused to be delivered to Euroclear or Clearstream a certificate substantially in the form of the certificate attached as Exhibit B (copies of which form of certificate will be available at the offices of Euroclear in Brussels and Clearstream in Luxembourg and the specified office of each of the Paying Agents). |
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| | Upon any payment of principal and endorsement of such payment on Part I of the Schedule hereto, the principal amount of this temporary Global Bond shall be reduced for all purposes by the principal amount so paid and endorsed. |
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| | All payments of any amounts payable and paid to the bearer of this temporary Global Bond shall be valid and, to the extent of the sums so paid, effectual to satisfy and discharge the liability for the moneys payable hereon and on the relevant definitive Bearer Bonds and Coupons. |
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| 4. | Authentication |
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| | This temporary Global Bond shall not be or become valid or obligatory for any purpose unless and until authenticated by or on behalf of the Principal Paying Agent. |
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| 5. | Governing law |
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| | This temporary Global Bond is governed by, and shall be construed in accordance with, the laws of England. |
IN WITNESS whereof the Issuer has caused this temporary Global Bond to be signed manually by a person duly authorised on its behalf.
| | UNITED UTILITIES ELECTRICITY PLC |
| | (formerly NORWEB plc) |
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| | By: .......................................... |
| | Duly authorised |
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| Issued in London, England on 15th February, 2002. |
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| Certificate of authentication |
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| This temporary Global Bond is duly authenticated without recourse, warranty or liability. |
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| .................................. |
| Citibank, N.A., London Office |
| as Principal Paying Agent |
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THE SCHEDULE
PART I
PAYMENTS OF PRINCIPAL, PREMIUM AND INTEREST
| The following payments on this temporary Global Bond have been made: |
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| Date | | Interest | | Premium | | Principal | | Remaining principal | | Notation |
| made | | paid | | paid | | paid | | amount of this | | made on |
| | | | | | | | | temporary Global | | behalf of |
| | | | | | | | | Bond following | | the Issuer |
| | | | | | | | | such payment | | |
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| | | £ | | £ | | £ | | £ | | |
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| |
| EXCHANGES FOR DEFINITIVE BEARER BONDS AND |
| PURCHASES AND CANCELLATIONS |
The following exchanges of a part of this temporary Global Bond for definitive Bearer Bonds and/or purchases and cancellations of a part of this temporary Global Bond have been made:
| Date | | Part of principal | | Part of principal | | Aggregate principal | | Notation |
| made | | amount of this | | amount of this | | amount of this | | made on |
| | | temporary | | temporary | | temporary | | behalf of |
| | | Global Bond | | Global Bond | | Global Bond | | the Issuer |
| | | exchanged for | | purchased and | | following such | | |
| | | definitive Bearer | | cancelled | | exchange or
purchase | | |
| | | Bonds | | | | and cancellation | | |
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| | | £ | | £ | | £ | | |
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| UNITED UTILITIES ELECTRICITY PLC |
| |
| 8.875 per cent. Bonds 2026 |
This is to certify that, based solely on certifications we have received in writing, by tested telex or by electronic transmission from member organisations appearing in our records as persons being entitled to a portion of the principal amount set forth below (our "Member Organisations") substantially to the effect set forth in the Trust Deed, as of the date hereof, £[ ] principal amount of the above-captioned Securities (i) is owned by persons that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source ("United States persons"), (ii) is owned by United States persons that (a) are foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account or for resale, or (b) acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution has agreed, on its own behalf or through its agent, that we may advise the Issuer or the Issuer's agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or foreign financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended, then this is also to certify with respect to such principal amount of Securities set forth above that, except as set forth below, we have received in writing, by tested telex or by electronic transmission, from our Member Organisations entitled to a portion of such principal amount, certifications with respect to such portion, substantially to the effect set forth in the Trust Deed.
As used herein, "United States" means the United States of America (including the States and the District of Columbia); and its "possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) any portion of the temporary global Security excepted in such certifications and (ii) that as of the date hereof we have not received any notification from any of our Member Organisations to the effect that the statements made by such Member Organisations with respect to any portion of the part submitted herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorise you to produce this certification to any interested party in such proceedings.
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*Dated
| [Euroclear Bank S.A./N.V.] [Clearstream Banking, société anonyme] |
| |
| By: ................................................ |
* | To be dated no earlier than the date to which this certification relates, namely (a) the payment date or (b) the date set for the exchange of the temporary Global Bond for definitive Bearer Bonds. |
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| |
| UNITED UTILITIES ELECTRICITY PLC |
| |
| 8.875 per cent. Bonds 2026 |
This is to certify that as of the date hereof, and except as set forth below, the above-captioned Securities held by you for our account (i) are owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source ("United States person(s)"), (ii) are owned by United States person(s) that (a) are foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account or for resale, or (b) acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, on its own behalf or through its agent, that you may advise the Issuer or the Issuer's agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities is a United States or foreign financial institution described in clause (iii) above (whether or not also described in clause (i) or (ii)) this is further to certify that such financial institution has not acquired the Securities for the purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended, (the "Act"), then this is also to certify that, except as set forth below (i) in the case of debt securities, the Securities are beneficially owned by (a) non-U.S. person(s) or (b) U.S. person(s) who purchased the Securities in transactions which did not require registration under the Act; or (ii) in the case of equity securities, the Securities are owned by (x) non-U.S. person(s) (and such person(s) are not acquiring the Securities for the account or benefit of U.S. person(s)) or (y) U.S. person(s) who purchased the Securities in a transaction which did not require registration under the Act. If this certification is being delivered in connection with the exercise of warrants pursuant to Section 230.902(m) of Regulation S under the Act, then this is further to certify that, except as set forth below, the Securities are being exercised by and on behalf of non-U.S. person(s). As used in this paragraph the term "U.S. person" has the meaning given to it by Regulation S under the Act.
As used herein, "United States" means the United States of America (including the States and the District of Columbia); and its "possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Securities held by you for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
This certification excepts and does not relate to £[ ] of such interest in the above Securities in respect of which we are not able to certify and as to which we understand exchange and delivery of definitive Securities (or, if relevant, exercise of any rights or collection of any interest) cannot be made until we do so certify.
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We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorise you to produce this certification to any interested party in such proceedings.
| | |
| | By: ...................... |
| | |
| | [Name of person giving certification] |
| | (As, or as agent for, the beneficial |
| | owner(s) of the Securities |
| | to which this certification relates) |
* | To be dated no earlier than the fifteenth day before the date to which this certification relates, namely (a) the payment date or (b) the date set for the exchange of the temporary Global Bond for definitive Bearer Bonds. |
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THE FIRST SCHEDULE
PART 2
- FORM OF DEFINITIVE NEW BEARER BOND -
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
|
| [1,000/10,000/100,000] XS0058957316 [SERIES] [Serial No.] |
|
| |
| UNITED UTILITIES ELECTRICITY PLC |
(Incorporated in England with limited liability under the Companies Act 1985
with registered number 2366949) |
| |
| £100,000,000 8.875 PER CENT. BONDS 2026 |
(Consolidated, forming a single series and fungible with the £200,000,000 8.875 per cent. Bonds 2026 issued on 3rd August, 1995, the £100,000,000 8.875 per cent. Bonds 2026 issued on 6th July, 2001 and the £50,000,000 8.875 per cent. Bonds 2026 issued on 20th December, 2001)
The issue of the Bonds was authorised by resolutions of the Board of Directors of UNITED UTILITIES ELECTRICITY PLC (formerly NORWEB plc) (the "Issuer") passed on • February, 2002.
This Bond forms one of a series of Bonds constituted by a Fourth Supplemental Trust Deed dated 15th February, 2002 (the "Fourth Supplemental Trust Deed") between the Issuer and The Law Debenture Trust Corporation p.l.c. as trustee for the holders of the Bonds supplemental to the Third Supplemental Trust Deed between the Issuer and the Law Debenture Trust Corporation p.l.c. dated 20th December, 2001 (the "Third Supplemental Trust Deed"), the Second Supplemental Trust Deed between the Issuer and The Law Debenture Trust Corporation p.l.c. dated 6th July, 2001 (the "Second Supplemental Trust Deed"), the First Supplemental Trust Deed between the Issuer and The Law Debenture Trust Corporation p.l.c. dated 2nd July, 2001 (the "First Supplemental Trust Deed") and the Trust Deed dated 3rd August, 1995 (together with the First, Second, Third and Fourth Supplemental Trust Deeds, the "Trust Deed") between the Issuer and The Law Debenture Trust Corporation p.l.c. and issued either in bearer form in the denominations of £1,000, £10,000 and £100,000 each with Coupons attached or in registered form in the denomination of £1 each or integral multiples thereof, in an aggregate principal amount of £100,000,000.
The Issuer for value received and subject to and in accordance with the Conditions endorsed hereon hereby promises to pay to the bearer on 25th March, 2026 (or on such earlier date as the principal sum hereunder mentioned may become repayable in accordance with the said Conditions) the principal sum of:
| £[1,000/10,000/100,000] ([One/Ten/One Hundred] Thousand Pounds Sterling) |
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together with interest on the said principal sum at the rate of 8.875 per cent. per annum payable (less United Kingdom income tax, if appropriate) annually in arrear on 25th March and together with such premium and other amounts (if any) as may be payable, all subject to and in accordance with the said Conditions and the provisions of the Trust Deed.
Neither this Bond nor the Coupons appertaining hereto shall be or become valid or obligatory for any purpose unless and until this Bond has been authenticated by or on behalf of the Principal Paying Agent.
| IN WITNESS whereof this Bond has been executed on behalf of the Issuer. |
| | UNITED UTILITIES ELECTRICITY PLC |
| | (formerly NORWEB plc) |
| | |
| | By: .............................. |
| | Director |
| |
| Dated as of 15th February, 2002 |
| |
| Issued in London, England. |
| |
| Certificate of authentication |
| |
| This Bond is duly authenticated without recourse, warranty or liability. |
| |
| ............................... |
| Citibank, N.A., London office, |
| as Principal Paying Agent |
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- FORM OF NEW COUPON -
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
| UNITED UTILITIES ELECTRICITY PLC |
| |
| £100,000,000 8.875 PER CENT. BONDS 2026 |
(Consolidated, forming a single series and fungible with the £200,000,000 8.875 per cent. Bonds 2026 issued on 3rd August, 1995, the £100,000,000 8.875 per cent. Bonds 2026 issued on 6th July, 2001 and the £50,000,000 8.875 per cent. Bonds 2026 issued on 20th December, 2001)
| Coupon appertaining to a Bond in the denomination of £[1,000/10,000/100,000] |
| |
| | [This Coupon is separately | Coupon for |
| | negotiable, payable to bearer, | £ [88.75/887.50/8,875.00] |
| | and subject to the | due on |
| | Conditions of the said Bonds. | 25th March, [ ] |
| | | |
|
| [No.] [1,000/10,000/100,000] XS0058957316 [Series] [Serial No.] |
|
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Citibank, N.A.
P.O. Box 18055
5 Carmelite Street
London EC4Y OPA
Citibank International plc
c/- The Bank of New York
Avenue des Arts 35
Kunstlaan
B-1040 Brussels | BNP Paribas S.A.
10A Boulevard Royal
L-2093 Luxembourg |
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- FORM OF NEW TALON -
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
| UNITED UTILITIES ELECTRICITY PLC |
| |
| £100,000,000 8.875 PER CENT. BONDS 2026 |
(Consolidated, forming a single series and fungible with the £200,000,000 8.875 per cent. Bonds 2026 issued on 3rd August, 1995, the £100,000,000 8.875 per cent. Bonds 2026 issued on 6th July, 2001 and the £50,000,000 8.875 per cent. Bonds 2026 issued on 20th December, 2001)
| Talon appertaining to a Bond in the denomination of £[1,000/10,000/100,000] |
On and after [ ], 20[ ], [ ] further Coupons will be issued at the specified office of any of the Paying Agents set out on the reverse hereof (and/or any other or further Paying Agents and/or specified offices as may from time to time be duly appointed and notified to the Bondholders) upon production and surrender of this Talon.
|
| [No.] [1,000/10,000/100,000] XS0058957316 [Series] [Serial No.] |
|
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Citibank, N.A.
P.O. Box 18055
5 Carmelite Street
London EC4Y OPA
Citibank International plc
c/- The Bank of New York
Avenue des Arts 35
Kunstlaan
B-1040 Brussels | BNP Paribas S.A.
10A Boulevard Royal
L-2093 Luxembourg |
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THE FIRST SCHEDULE
PART 3
| - FORM OF NEW REGISTERED BOND - |
| |
|
| XS0058957316 [SERIES] [SERIAL NO.] |
|
| |
| UNITED UTILITIES ELECTRICITY PLC |
| (Incorporated in England with limited liability under the Companies Act 1985 |
| with registered number 2366949) |
| |
| £100,000,000 8.875 PER CENT. BONDS 2026 |
| |
| (Consolidated, forming a single series and fungible with the £200,000,000 8.875 per cent. Bonds 2026 issued on 3rd August, 1995, the £100,000,000 8.875 per cent. Bonds 2026 issued on 6th July, 2001 and the £50,000,000 8.875 per cent. Bonds 2026 issued on 20th December, 2001) |
The issue of the Bonds was authorised by resolutions of the Board of Directors of UNITED UTILITIES ELECTRICITY PLC (formerly NORWEB plc) (the "Issuer") passed on • February, 2002.
This Bond forms one of a series of Bonds constituted by a Fourth Supplemental Trust Deed dated 15th February, 2002 (the "Fourth Supplemental Trust Deed") between the Issuer and The Law Debenture Trust Corporation p.l.c. as trustee for the holders of the Bonds supplemental to the Third Supplemental Trust Deed between the Issuer and the Law Debenture Trust Corporation p.l.c. dated 20th December, 2001 (the "Third Supplemental Trust Deed"), the Second Supplemental Trust Deed between the Issuer and The Law Debenture Trust Corporation p.l.c. dated 6th July, 2001 (the "Second Supplemental Trust Deed"), the First Supplemental Trust Deed between the Issuer and The Law Debenture Trust Corporation p.l.c. dated 2nd July, 2001 (the "First Supplemental Trust Deed") and the Trust Deed dated 3rd August, 1995 (together with the First, Second, Third and Fourth Supplemental Trust Deeds, the "Trust Deed") between the Issuer and The Law Debenture Trust Corporation p.l.c. and issued either in bearer form in the denominations of £1,000, £10,000 and £100,000 each with Coupons attached or in registered form in the denomination of £1 each or integral multiples thereof, in an aggregate principal amount of £100,000,000.
is/are the registered holder(s) of one of the above-mentioned Bonds in registered form, such Bond being in the denomination of £[ ] ([ ] Pounds Sterling) and is/are entitled on 25th March, 2026 (or on such earlier date as the principal sum hereinafter mentioned may become repayable in accordance with the Conditions endorsed hereon) to the repayment of such principal sum of:
together with such premium and other amounts (if any) as may be payable, all subject to and in accordance with the said Conditions and the provisions of the Trust Deed.
Interest at the rate of 8.875 per cent. per annum (less United Kingdom income tax, if applicable) is payable on the said principal sum annually in arrear on 25th March in each year, subject to and in accordance with the said Conditions and the provisions of the Trust Deed.
| IN WITNESS whereof this Bond has been executed on behalf of the Issuer. |
| |
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| | UNITED UTILITIES ELECTRICITY PLC |
| | (formerly NORWEB plc) |
| | |
| | By: .............................. |
| | Director |
| Dated | |
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- FORM OF TRANSFER OF NEW REGISTERED BOND -
| FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) to |
| |
| |
| |
| |
| |
| (Please print or type name and address (including postal code) of transferee) |
£ principal amount of this Bond and all rights hereunder, hereby irrevocably constituting and appointing ......................................................... as attorney to transfer such principal amount of this Bond in the register maintained by UNITED UTILITIES ELECTRICITY PLC (formerly NORWEB plc) with full power of substitution.
| Signature(s) | | ...................... |
| | | |
| | | ...................... |
| | |
| 1. | This form of transfer must be accompanied by such documents, evidence and information as may be required pursuant to the Conditions and must be executed under the hand of the transferor or, if the transferor is a corporation, either under its common seal or under the hand of two of its officers duly authorised in writing and, in such latter case, the document so authorising such officers must be delivered with this form of transfer. |
| | |
| 2. | The signature(s) on this form of transfer must correspond with the name(s) as it/they appear(s) on the face of this Bond in every particular, without alteration or enlargement or any change whatever. |
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THE SECOND SCHEDULE
24
Terms and Conditions of the Bonds
The £100,000,000 8.875 per cent. Bonds 2026 (the "Bonds", which expression shall in these Terms and Conditions, unless the context otherwise requires, include any further bonds issued pursuant to Condition 17 and forming a single series with the Bonds) of United Utilities Electricity PLC (formerly NORWEB plc) (the "Issuer") are constituted by a Fourth Supplemental Trust Deed dated 15 February 2002 between the Issuer and The Law Debenture Trust Corporation p.l.c. (the "Fourth Supplemental Trust Deed" and the "Trustee", which expression shall include its successors as the trustee under the Trust Deed, respectively) as trustee for the holders of the Bonds (the "Bondholders") supplemental to the Trust Deed dated 3 August 1995 between NORWEB plc and the Trustee (the "Original Trust Deed") constituting £200,000,000 8.875 per cent. Bonds 2026 of NORWEB plc (the "Original Bonds") as supplemented by a First Supplemental Trust Deed dated 2 July 2001 between NORWEB plc and the Trustee (the "First Supplemental Trust Deed") modifying the Original Trust Deed, by a Second Supplemental Trust Deed dated 6 July 2001 between NORWEB plc and the Trustee (the "Second Supplemental Trust Deed") constituting £100,000,000 8.875 per cent. Bonds 2026 of NORWEB plc (the "Tranche No. 2 Bonds") and by a Third Supplemental Trust Deed dated 20 December 2001 between the Issuer and the Trustee (the "Third Supplemental Trust Deed" and, together with the Original Trust Deed, the First Supplemental Trust Deed, the Second Supplemental Trust Deed and the Fourth Supplemental Trust Deed, the "Trust Deed") constituting £50,000,000 8.875 per cent. Bonds 2026 of the Issuer (such bonds, together with the Original Bonds and the Tranche No. 2 Bonds, the "Existing Bonds"). The Bonds are consolidated and form a single series with the Existing Bonds. The issue of the Bonds was authorised by resolutions of the Board of Directors of the Issuer passed on 7 February 2002. The Bonds are, on issue, admitted to the official list of the UK Listing Authority and admitted to trading on the London Stock Exchange plc (the "London Stock Exchange"). The statements in these Terms and Conditions include summaries of, and are subject to, the detailed provisions of and definitions in the Trust Deed. Copies of the Trust Deed and of an Agency Agreement dated 3 August 1995 (the "Principal Agency Agreement"), the First Supplemental Agency Agreement dated 6 July 2001 (the "First Supplemental Agency Agreement"), the Second Supplemental Agency Agreement dated 20 December 2001 (the "Second Supplemental Agency Agreement") and the Third Supplemental Agency Agreement dated 15 February 2002 (together with the Principal Agency Agreement, the First Supplemental Agency Agreement and the Second Supplemental Agency Agreement, the "Agency Agreement"), each made between the Issuer, Citibank, N.A. (or in the case of the Principal Agency Agreement, Morgan Guaranty Trust Company of New York, London office but now replaced by Citibank, N.A.), as principal paying agent (the "Principal Paying Agent", which expression shall include any successor), Computershare Investor Services PLC as registrar (the "Registrar", which expression shall include any successor), the other paying agents named therein (together with the Principal Paying Agent, the "Paying Agents", which expression shall include any additional or successor paying agents) and the Trustee are available for inspection during normal business hours by the Bondholders and the holders of the interest coupons appertaining to the Bonds in bearer form (respectively, the "Couponholders" and the "Coupons", which latter expression shall, unless the context otherwise requires, include the Talon referred to below) at the registered office for the time being of the Trustee, being at the date of issue of the Bonds at Fifth Floor, 100 Wood Street, London EC2V 7EX, and at the specified office of each of the Paying Agents and the Registrar. The Bondholders and the Couponholders are entitled to the benefit of, are bound by, and are deemed to have notice of, all the provisions of the Trust Deed and the Agency Agreement.
| 1. | FORM, DENOMINATION AND TITLE |
The Bonds are in bearer form, serially numbered in the denominations of £1,000, £10,000 and £100,000 each ("Bearer Bonds") with Coupons and one Talon for further Coupons (a "Talon") attached on issue and in registered form in the denominations of £1 and integral multiples thereof ("Registered Bonds") without interest coupons. Title to the Bearer Bonds and to the Coupons will pass by delivery and title to the Registered Bonds will pass upon the registration of transfers in accordance with the provisions of the Agency Agreement and the Trust Deed. Bearer Bonds of one denomination cannot be exchanged for Bearer Bonds of another denomination.
The Issuer, any Paying Agent, the Registrar and the Trustee may (to the fullest extent permitted by applicable laws) deem and treat the holder of any Bearer Bond and the holder of any Coupon and the registered holder of any Registered Bond as the absolute owner for all purposes (whether or not the Bond or Coupon shall be overdue and notwithstanding any notice of ownership or writing on the Bond or Coupon or any notice of previous loss or theft of the Bond or Coupon).
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On the Closing Date, the Bonds will be issued as Bearer Bonds and will be represented initially by the Global Bond, without Coupons, which will be deposited with a common depositary for Euroclear Bank S.A./N.V. ("Euroclear") and Clearstream Banking, société anonyme ("Clearstream, Luxembourg") on or about the Closing Date for credit against payment to the accounts designated by the relevant subscribers with Euroclear or Clearstream, Luxembourg. The Global Bond will be exchangeable on or after a date which is expected to be 27 March 2002 for definitive Bearer Bonds, with Coupons and one Talon attached, upon certification that the beneficial owners of the relevant Bearer Bonds are not U.S. persons or persons who have acquired such Bearer Bonds for resale to any U.S. person.
Unless, upon due presentation of the Global Bond for exchange, delivery of definitive Bearer Bonds is improperly withheld or refused and such withholding or refusal is continuing at the relevant due date for payment thereof definitive Bearer Bonds with Coupons attached must be obtained before interest can be collected in respect of the relevant Bearer Bonds.
Bonds (both in bearer and registered form) and Coupons will bear the following legend:
"Any United States person who holds this obligation will be subject to limitations under the United States income tax laws, including the limitations provided in Section 165(j) and 1287(a) of the Internal Revenue Code".
| 2. | TRANSFER AND EXCHANGE |
| | |
| (a) | Transfer of Registered Bonds |
| A Registered Bond may be transferred in whole or in part (in the principal amount of £1 or any integral multiple thereof) by the transferor depositing the Registered Bond for registration of the transfer of the Registered Bond (or the relevant part of the Registered Bond) at the specified office of the Registrar with a form of transfer (in a form approved by the Registrar and the Trustee) duly completed and signed by or on behalf of the transferor and upon the Registrar after due and careful enquiry being satisfied with the evidence of title and the identity of the person making the request and subject to such reasonable regulations as the Issuer and the Registrar may (with the prior approval of the Trustee) prescribe. Subject as provided above and subject to the payment of any sum in respect of any stamp duty, tax or other governmental charge as is referred to in paragraph (e) below, the Registrar will, within three Business Days (as defined below) of the request (or such longer period as may be required to comply with any applicable fiscal or other laws or regulations), deliver at its specified office to the transferee or (at the risk and, if mailed at the request of the transferee otherwise than by ordinary uninsured mail, at the expense of the transferee) send by mail to such address as the transferee may request a new Registered Bond of a like aggregate principal amount to the Registered Bond (or the relevant part of the Registered Bond) transferred. In the case of the transfer of part only of a Registered Bond, a new Registered Bond in respect of the balance of the Registered Bond not transferred will be so delivered or (at the risk and, if mailed at the request of the transferor otherwise than by ordinary uninsured mail, at the expense of the transferor) sent by mail to the transferor. For the purpose of this Condition 2, "Business Day" means a day on which commercial banks and foreign exchange markets settle payments in London. |
| |
| (b) | Exchange of Bearer Bonds for Registered Bonds |
| At the option of the holder thereof, upon presentation to the Principal Paying Agent at any time on or after 27 March 2002 (the "Exchange Date") of a duly completed and signed request for exchange (in the form for the time being obtainable from the specified office of the Registrar or the Principal Paying Agent (a "Registration Request")) together with the relevant Bearer Bond(s) and payment of any sum in respect of any such stamp duty, tax or other governmental charge as is referred to in paragraph (e) below, subject to the terms of the Agency Agreement, Bearer Bonds are exchangeable in whole, but not in part, for the same aggregate principal amount of Registered Bonds, provided that all unmatured Coupons relating thereto are attached thereto or are surrendered therewith. Registration Requests may not be presented on or after the Record Date (as defined in Condition 5) in respect of any Interest Payment Date (as defined in Condition 4) up to and including such Interest Payment Date. Interest on a Registered Bond issued on exchange will accrue, and interest on the corresponding Bearer Bond(s) presented for exchange will cease to accrue, as from the immediately preceding Interest Payment Date or, if none, as from 25 March 2001. Registration Requests may only be presented, and Bearer Bonds and Coupons may only be surrendered for exchange for Registered Bonds, at the specified office of the Principal Paying Agent. The Registrar will, within five Business Days of the date of presentation to the Principal Paying Agent of any Registration Request together with the relevant Bearer Bond(s) and Coupons, deliver at its specified office to the Bondholder or (at the risk and, if mailed at the request of the Bondholder otherwise than by ordinary uninsured mail, at the expense of the Bondholder) mail to such address (other than an address in the United States) as may be specified by the Bondholder in the Registration Request a Registered Bond of the same aggregate principal amount as that of the Bearer Bond exchanged. |
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| (c) | Exchange of Registered Bonds for Bearer Bonds |
| At the option of the holder thereof, upon presentation to the Registrar at any time on or after the Exchange Date of a duly completed and signed request for exchange (in the form for the time being obtainable from the specified office of the Registrar or the Principal Paying Agent (a "Bearer Request")) together with the relevant Registered Bond(s) and payment of any sum in respect of any such stamp duty, tax or other governmental charge as is referred to in paragraph (e) below, subject to the terms of the Agency Agreement, Registered Bonds are exchangeable in whole or in part in principal amounts of £1,000 or integral multiples thereof for the same aggregate principal amount of Bearer Bonds. Bearer Requests may not be presented on or after the Record Date in respect of any Interest Payment Date up to and including such Interest Payment Date. Bearer Requests may not be presented on or after the date the Issuer validly gives notice to the Bondholders of its intention to redeem Bearer Bonds pursuant to Condition 6(c). Interest on Bearer Bonds issued on exchange will accrue, and interest on the corresponding Registered Bonds presented for exchange will cease to accrue, as from the immediately preceding Interest Payment Date or, if none, 25 March 2001. Bearer Requests may only be presented, and Registered Bonds may only be surrendered for exchange for Bearer Bonds, at the specified office of the Registrar. The Principal Paying Agent will, within five Business Days of the date of presentation to the Registrar of any Bearer Request together with the relevant Registered Bond(s), deliver at its specified office to the Bondholder or (at the risk and, if mailed at the request of the Bondholder otherwise than by ordinary uninsured mail, at the expense of the Bondholder) mail to such address, other than an address in the United States, as may be specified by the Bondholder in the Bearer Request, the Bearer Bond or Bearer Bonds requested together with all Coupons in respect of all Interest Payment Dates falling after the date of presentation. In the case of exchange of part only of a Registered Bond, a new Registered Bond for the balance so exchanged will be sent by mail by the Registrar (at the risk and, if mailed at the request of the Bondholder otherwise than by ordinary uninsured mail, at the expense of the Bondholder) to such address, other than an address in the United States, as may be specified by the Bondholder in the Bearer Request. |
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| (d) | Closed Periods |
| In the event of a partial redemption of Bonds under Condition 6(b), the Issuer shall not be required: |
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| (i) | to register the transfer of Registered Bonds (or parts of Registered Bonds) or to exchange Bearer Bonds for Registered Bonds (or vice versa) during the period beginning on the sixty-fifth day before the date of the partial redemption and ending on the day on which notice is given specifying the serial numbers of Bonds called (in whole or in part) for redemption (both inclusive); or |
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| (ii) | to register the transfer of any Registered Bond, or part of a Registered Bond, called for partial redemption; or |
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| (iii) | to exchange any Registered Bond (or part thereof) or Bearer Bond called for partial redemption; |
except that a Registered Bond (or part thereof) or Bearer Bond called for partial redemption may be exchanged for a Bearer Bond or Registered Bond, respectively, which is simultaneously surrendered not later than the relevant Record Date.
| (e) | Formalities free of charge |
| Such transfer or exchange will be effected without charge subject to (i) the person making such application for transfer or request for exchange paying or procuring the payment of any stamp duty, tax or other governmental charge, (ii) the Registrar being satisfied with the documents of title and identity of the person making the application or request and (iii) such reasonable regulations as the Issuer may from time to time agree with the Trustee, the Principal Paying Agent and the Registrar. The exchange of Bearer Bonds for Registered Bonds and Registered Bonds for Bearer Bonds will be subject to the provisions of all applicable fiscal or other laws and regulations in effect at the time of such exchange. |
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| (f) | Registrar |
| The name of the initial Registrar and its initial specified office are set out at the end of these Terms and Conditions. The Issuer reserves the right, subject to the prior written approval of the Trustee, at any time to vary or terminate the appointment of the Registrar and to appoint another Registrar provided that it will at all times maintain a Registrar approved by the Trustee having a specified office in the United Kingdom. Notice of any termination or appointment and of any changes in specified office will be given to the Bondholders promptly by the Issuer in accordance with Condition 14. |
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The Bonds and the Coupons are direct, unconditional and unsecured obligations of the Issuer and rank and will rank pari passu, without any preference among themselves, with all other outstanding unsecured and unsubordinated obligations of the Issuer, present and future, but, in the event of insolvency, only to the extent permitted by applicable laws relating to creditors' rights.
The Bonds bear interest from (and including) 25 March 2001 at the rate of 8.875 per cent. per annum payable (less United Kingdom income tax, if appropriate) annually in arrear on 25 March in each year (each an "Interest Payment Date").
Each Bond or, in the case of the redemption of part only of a Registered Bond, that part only of the Registered Bond will cease to bear interest from its due date for redemption unless, upon due presentation, payment of the principal in respect of the Bond is improperly withheld or refused or unless default is otherwise made in respect of such payment, in which event interest shall continue to accrue as provided in the Trust Deed.
When interest is required to be calculated in respect of a period of less than a full year, it shall be calculated on the basis of a 360 day year consisting of 12 months of 30 days each.
| 5. | PAYMENTS AND EXCHANGE OF TALONS |
Payments of principal and interest in respect of each Bearer Bond will be made against presentation and surrender (or, in the case of part payment only, endorsement) of the Bearer Bond, except that payments of interest due on an Interest Payment Date will be made against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant Coupons, in each case at the specified office of any of the Paying Agents.
Payments in respect of each Bearer Bond will be made at the specified office of any Paying Agent, at the option of the holder, by sterling cheque drawn on, or by transfer to a sterling account maintained by the payee with, a bank in the City of London, subject in all cases to any applicable fiscal or other laws and regulations, but without prejudice to the provisions of Condition 8.
Each Bearer Bond should be presented for payment together with all relative unmatured Coupons, failing which the full amount of any relative missing unmatured Coupon (or, in the case of payment not being made in full, that proportion of the full amount of the missing unmatured Coupon which the amount so paid bears to the total amount due) will be deducted from the amount due for payment. Each amount so deducted will be paid in the manner mentioned above against presentation and surrender (or, in the case of part payment only, endorsement) of the relative missing Coupon at any time before the expiry of 10 years after the Relevant Date (as defined in Condition 8) in respect of the relevant Bearer Bond (whether or not the Coupon would otherwise have become void pursuant to Condition 9), or, if later, five years after the date on which the Coupon would have become due, but not thereafter.
If the due date for redemption of any Bearer Bond is not an Interest Payment Date interest accrued on such Bond from (and including) the preceding Interest Payment Date (or, if none, 25 March 2001) up to (but excluding) the date of redemption shall be paid only against presentation and surrender of such Bearer Bond.
Payments of principal in respect of each Registered Bond will be made against presentation and surrender (or, in the case of part payment only, endorsement) of the Registered Bond at the specified office of the Registrar in London by sterling cheque drawn on a bank in the City of London. Payments of interest on each Registered Bond will be made by sterling cheque drawn on a bank in the City of London and mailed on the Business Day in the City of London immediately preceding the relevant due date to the holder (or to the first named of joint holders) of the Registered Bond appearing on the register at the close of business on the seventh day before the relevant due date (the "Record Date") at his address shown on the register on the Record Date. Upon application of the holder to the specified office of the Registrar, not less than three Business Days before the due date for any payment in respect of a Registered Bond, the payment may be
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made (in the case of payment of principal against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant Registered Bonds as provided above) by transfer on the due date to a sterling account maintained by the payee with a bank in the City of London. Payments in respect of principal and interest on Registered Bonds are subject in all cases to any fiscal or other laws and regulations applicable in the place of payment, but without prejudice to the provisions of Condition 8.
A holder shall be entitled to present a Bond or Coupon for payment only on a Presentation Date and shall not be entitled to any further interest or other payment if a Presentation Date is after the due date.
"Presentation Date" means a day which (subject to Condition 9):
| (a) is or falls after the relevant due date but, if the due date is not or was not a Business Day in the City of London, is or falls after the next following such Business Day; and |
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| (b) is a Business Day in the place of the specified office of the Paying Agent (or the Registrar in the case of payments of principal in respect of Registered Bonds) at which the Bond or Coupon is presented for payment and, in the case of payment by transfer to a sterling account in the City of London as referred to above, in the City of London. |
In this Condition 5, "Business Day" means, in relation to any place, a day on which commercial banks and foreign exchange markets settle payments in that place.
On and after the Interest Payment Date on which the final Coupon comprised in any Coupon sheet matures, the Talon comprised in the Coupon Sheet may be surrendered at the specified office of any Paying Agent in exchange for a further Coupon sheet (including any appropriate further Talon), subject to the provisions of Condition 9. Each Talon shall, for the purposes of these Conditions, be deemed to mature on the Interest Payment Date on which the final Coupon comprised in the relative Coupon sheet matures.
The names of the initial Paying Agents and their initial specified office are set out at the end of these Terms and Conditions. The Issuer reserves the right, subject to the prior written approval of the Trustee, at any time to vary or terminate the appointment of any Paying Agent and to appoint additional or other Paying Agents provided that it will at all times maintain at least two Paying Agents having specified offices in separate European cities approved by the Trustee, one of which, so long as the Bonds are listed on the London Stock Exchange, shall be London or such other place as the London Stock Exchange may approve and one of which shall be outside the United Kingdom. Notice of any termination or appointment and of any changes in specified offices will be given to the Bondholders promptly by the Issuer in accordance with Condition 14.
| 6. | REDEMPTION AND PURCHASE |
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| (a) | Unless previously redeemed or purchased and cancelled as provided below, the Issuer will redeem the Bonds at their principal amount on 25 March 2026. |
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| (b) | The Issuer may, at any time, having given notice to the Bondholders in accordance with this Condition 6(b) (which notice shall be irrevocable), redeem the Bonds in whole or in part (but if in part, in integral multiples of £1,000,000 in principal amount thereof), at the price which shall be the higher of the following, together with interest accrued up to (but excluding) the date of redemption: |
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| | (ii) | that price (the "Redemption Price"), expressed as a percentage rounded to three decimal places (0.0005 being rounded down), at which the Gross Redemption Yield on the Bonds, if they were to be purchased at such price on the third dealing day prior to the publication of the notice of redemption or, in the case of a partial redemption, the first notice of redemption referred to below, would be equal to the Gross Redemption Yield on such dealing day of the 8¾, per cent. Treasury Stock 2017 or of such other United Kingdom Government Stock as the Trustee, with the advice of three leading brokers operating in the gilt-edged market and/or gilt-edged market makers, shall determine to be appropriate (the "Reference Stock") on the basis of the middle market price of the Reference Stock prevailing on such dealing day, as determined by UBS AG, acting through its business group UBS Warburg (or such other person(s) as the Trustee may approve). |
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| | The Gross Redemption Yield on the Bonds and the Reference Stock will be expressed as a percentage and will be calculated on the basis indicated by the joint Index and Classification Committee of the Institute and Faculty of Actuaries as reported in the journal of the Institute of Actuaries, Vol. 105, Part 1, 1978, page 18 or on such other basis as the Trustee may approve. |
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| | In the case of a partial redemption of Bonds, Bonds (or, as the case may be, parts of Registered Bonds) to be redeemed will be selected individually by lot in such place as the Trustee may approve and in such manner as the Trustee shall deem to be appropriate and fair without involving any part only of a Bearer Bond, not more than 65 days before the date fixed for redemption. In the case of a redemption of all of the Bonds pursuant to this Condition 6(b), notice will be given to the Bondholders by the Issuer in accordance with Condition 14 once not less than 30 nor more than 60 days before the date fixed for redemption. In the case of a partial redemption, notice will be so given twice, first not less than 80 nor more than 95 days, and secondly not less than 30 nor more than 60 days, before the date fixed for redemption. Each notice will specify that date fixed for redemption and the redemption price and, in the case of a partial redemption, the aggregate principal amount of the Bonds to be redeemed, the serial numbers of Bonds previously called (in whole or in part) for redemption and not presented for payment and the aggregate principal amount of the Bonds which will be outstanding after the partial redemption. In addition, in the case of a partial redemption, the first notice will specify the period during which exchanges or transfers of Bonds may not be made as provided in Condition 2 and the second notice will specify the serial numbers of the Bonds called (in whole or, in the case of Registered Bonds, in part) for redemption. |
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| | Upon the expiry of any such notice period as is referred to above, the Issuer shall be bound to redeem the Bonds to which the notice refers at the relative redemption price applicable at the date of such redemption together with interest accrued to (but excluding) such date. |
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| (c) | If, as a result of any change in, or amendment to, the laws or regulations of the United Kingdom or any political sub-division of, or any authority in, or of, the United Kingdom having power to tax, or any change in the application or official interpretation of such laws or regulations, which change or amendment becomes effective after 28 July 1995, the Issuer has or will become obliged to pay additional amounts as provided or referred to in Condition 8 (and such amendment or change has been evidenced by the delivery by the Issuer to the Trustee (who shall, in the absence of manifest error, accept such certificate and opinion as sufficient evidence thereof) of (i) a certificate signed by two Directors of the Issuer on behalf of the Issuer stating that such amendment or change has occurred (irrespective of whether such amendment or change is then effective), describing the facts leading thereto and stating that such obligation cannot be avoided by the Issuer taking reasonable measures available to it and (ii) an opinion in a form satisfactory to the Trustee of independent legal advisers of recognised standing to whom the Trustee shall have no reasonable objection to the effect that such amendment or change has occurred (irrespective of whether such amendment or change is then effective)), the Issuer may, at its option, having given not less than 30 nor more than 60 days' notice to the Bondholders in accordance with Condition 14 (which notice shall be irrevocable), redeem all, but not some only, in a case where the requirement to pay such additional amounts results solely from the deduction from payments of interest in respect of Bearer Bonds of any United Kingdom income tax required to be withheld or deducted at source, of only the Bearer Bonds and, in any other case, of the Bonds (other than Bonds in respect of which the Issuer shall have given a notice of redemption pursuant to Condition 6(b) prior to any notice being given under this Condition 6(c)), in each case at their principal amount together with interest accrued to the date of redemption, provided that no notice of redemption shall be given earlier than 90 days before the earliest date on which the Issuer would be required to pay such additional amounts were a payment in respect of the Bonds then due. Any notice to Bondholders pursuant to this Condition 6(c) which applies only to Bearer Bonds shall also inform holders of Bearer Bonds of their right to exchange such Bearer Bonds for Registered Bonds pursuant to Condition 2(b) and the period or periods during which such exchange can take place. |
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| | N.B. Holders of Registered Bonds should note that if the Issuer gives a notice under this Condition 6(c) to redeem only the outstanding Bearer Bonds, their right to exchange their Registered Bonds for Bearer Bonds will thereupon cease and there will be no obligation on the Issuer to redeem any Registered Bonds which may be outstanding nor will there be any obligation on the Issuer to maintain in issue any minimum principal amount of Registered Bonds. |
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| | Upon the expiry of any such notice period as is referred to above (and subject as provided above), the Issuer shall be bound to redeem the relevant Bonds at their principal amount together with interest accrued to (but excluding) the redemption date. |
| (d) | The Issuer or any of its Subsidiaries (as defined in Condition 10) may at any time purchase Bonds in any manner and at any price. If purchases are made by tender, tenders must be available to all Bondholders alike. |
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| (e) | All Bonds which are redeemed by the Issuer will forthwith be cancelled (together, in the case of Bearer Bonds, with all relative unmatured Coupons attached to the Bearer Bonds or surrendered with the Bearer Bonds) and may not be reissued or resold. Bonds purchased by the Issuer or any of its Subsidiaries may be held or reissued or resold or surrendered for cancellation. |
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| 7. | REDEMPTION AT THE OPTION OF BONDHOLDERS |
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| (a) | (i) | If, at any time while any of the Bonds remains outstanding, a Restructuring Event (as defined below) occurs and prior to the commencement of or during the Restructuring Period (as defined below) an independent financial adviser (as defined below) shall have certified in writing to the Trustee that such Restructuring Event will not be or is not, in its opinion, materially prejudicial to the interests of the Bondholders, the following provisions of this Condition 7 shall cease to have any further effect in relation to such Restructuring Event. |
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| | (ii) | If, at any time while any of the Bonds remains outstanding, a Restructuring Event occurs and (subject to Condition 7(a)(i)): |
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| | | (A) | within the Restructuring Period, either: |
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| | | | (i) | if at the time such Restructuring Event occurs there are Rated Securities (as defined below), a Rating Downgrade (as defined below) in respect of such Restructuring Event also occurs; or |
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| | | | (ii) | if at such time there are no Rated Securities, a Negative Rating Event (as defined below) also occurs; and |
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| | | (B) | an independent financial adviser shall have certified in writing to the Trustee that such Restructuring Event will be or is, in its opinion, materially prejudicial to the interests of the Bondholders (a "Negative Certification"), |
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| | | then, unless at any time the Issuer shall have given a notice under Condition 6(b) in respect of his Bond or Condition 6(c), in each case expiring prior to the Put Date (as defined below), the holder of each Bond will, upon the giving of a Put Notice (as defined below), have the option (the "Put Option") to require the Issuer to redeem or, at the option of the Issuer, purchase (or procure the purchase of) that Bond on the Put Date at its principal amount together with (or, where purchased, together with an amount equal to) interest accrued to (but excluding) the Put Date. |
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| | A Restructuring Event shall be deemed not to be materially prejudicial to the interests of the Bondholders if, notwithstanding the occurrence of a Rating Downgrade, the rating assigned to the Rated Securities by any Rating Agency (as defined below) is subsequently increased to an investment grade rating (BBB–/ Baa3 or their respective equivalents for the time being, or better) prior to any Negative Certification being issued. |
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| | Any certification by an independent financial adviser as aforesaid as to whether or not, in its opinion, any Restructuring Event will be or is materially prejudicial to the interests of the Bondholders shall, in the absence of manifest error, be conclusive and binding on the Trustee, the Issuer and the Bondholders. For the purposes of this Condition 8, an "independent financial adviser" means a financial adviser appointed by the Issuer and approved by the Trustee (such approval not to be unreasonably withheld or delayed) or, if the Issuer shall not have appointed such an adviser within 21 days after becoming aware of the occurrence of such Restructuring Event and the Trustee is indemnified to its satisfaction against the costs of such adviser, appointed by the Trustee following consultation with the Issuer. |
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| (b) | Promptly upon the Issuer becoming aware that a Put Event (as defined below) has occurred, and in any event not later than 14 days after the occurrence of a Put Event, the Issuer shall, and at any time upon the Trustee becoming similarly so aware the Trustee may, and if so requested by the holders of at least one-quarter in principal amount of the Bonds then outstanding shall, give notice (a "Put Event Notice") to the Bondholders in accordance with Condition 14 specifying the nature of the Put Event and the procedure for exercising the Put Option. |
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| (c) | To exercise the Put Option, the holder of a Bond must deliver such Bond to the specified office of any Paying Agent, on a day which is a Business Day (as defined in Condition 5) in the City of London and in the place of such specified office falling within the period (the "Put Period") commencing on the date on which a Put Event Notice is given and ending on the 45th day thereafter, accompanied by a duly completed and signed notice of exercise in the form (for the time being current) obtainable from any specified office of any Paying Agent (a "Put Notice") and in which the holder may specify a bank account complying with the requirements of Condition 5 to which payment is to be made under this Condition 7. Each Bearer Bond should be delivered together with all Coupons appertaining thereto maturing after the day (the "Put Date") being the fifteenth day after the date of expiry of the Put Period, failing which an amount equal to the face value of any such missing Coupon will be deducted from the amount due for payment. Each amount so deducted will be paid in the manner provided in Condition 5 against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant missing Coupon at any time before the expiry of 10 years after the Relevant Date in respect of the relevant Bearer Bond (whether or not the Coupon would otherwise have become void pursuant to Condition 9) or, if later, five years after the date on which such Coupon would have become due, but not thereafter. The Paying Agent to which such Bond and Put Notice are delivered shall issue to the Bondholder concerned a non-transferable receipt in respect of the Bond so delivered. Payment in respect of any Bond so delivered shall be made, if the holder duly specifies a bank account in the Put Notice to which payment is to be made on the Put Date, by transfer to that bank account and, in every other case, on or after the Put Date in each case against presentation and surrender or (as the case may be) endorsement of such receipt at any specified office of any Paying Agent, subject in any such case as provided in Condition 5. A Put Notice, once given, shall be irrevocable. For the purposes of Conditions 1, 9, 10, 11, 13 and 15, receipts issued pursuant to this Condition 7 shall be treated as if they were Bonds. The Issuer shall redeem or, at the option of the Issuer, purchase (or procure the purchase of) the relevant Bond on the applicable Put Date unless previously redeemed or purchased. |
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| (d) | For the purposes of these Terms and Conditions: |
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| | (i) | A "Negative Rating Event" shall be deemed to have occurred if (A) the Issuer does not either prior to or not later than 14 days after the date of a Negative Certification in respect of the relevant Restructuring Event, seek, and thereupon use all reasonable endeavours to obtain, a rating of the Bonds or any other unsecured and unsubordinated debt of the Issuer (or of any Subsidiary of the Issuer and which is guaranteed on an unsecured and unsubordinated basis by the Issuer) having an initial maturity of five years or more from a Rating Agency or (B) if it does so seek and use such endeavours, it is unable, as a result of such Restructuring Event, to obtain such a rating of at least investment grade (BBB–Baa3, or their respective equivalents for the time being or better). |
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| | (ii) | A "Put Event" occurs on the date of the last to occur of (aa) a Restructuring Event, (bb) either a Rating Downgrade or, as the case may be, a Negative Rating Event and (cc) the relevant Negative Certification. |
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| | (iii) | "Rating Agency" means Standard & Poor's Ratings Services, a Division of the McGraw-Hill Companies Inc. or any of its subsidiaries and their successors ("Standard & Poor's") or Moody's Investors Service Limited or any of its subsidiaries and their successors ("Moody's") or any rating agency substituted for either of them (or any permitted substitute of them) by the Issuer from time to time with the prior written approval of the Trustee (such approval not to be unreasonably withheld or delayed). |
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| | (iv) | A "Rating Downgrade" shall be deemed to have occurred in respect of a Restructuring Event if the then current rating assigned to the Rated Securities by any Rating Agency (whether provided by a Rating Agency at the invitation of the Issuer or by its own volition) is withdrawn or reduced from an investment grade rating (BBB –Baa3, or their respective equivalents for the time being, or better) to a non-investment grade rating (BB+/Ba1, or their respective equivalents for the time being, or worse) or, if the Rating Agency shall then have already rated the Rated Securities below investment grade (as described above), the rating is lowered one full rating category. |
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| | (v) | "Rated Securities" means the Bonds, if at any time and for so long as they shall have a rating from a Rating Agency, and otherwise any other unsecured and unsubordinated debt of the Issuer (or of any Subsidiary of the Issuer and which is guaranteed on an unsecured and unsubordinated basis by the Issuer) having an initial maturity of five years or more which is rated by a Rating Agency. |
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| | (vi) | "Restructuring Event" means the occurrence of any one or more of the following events: |
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| | | (A) | (aa) the Secretary of State for Trade and Industry (or any successor) giving the Issuer written notice of revocation of the Licence provided that the giving of notice pursuant to paragraph 3 of Part 1 of the PES Licence shall not be deemed to constitute the revocation of the PES Licence and the giving of notice pursuant to the equivalent provision in the Distribution Licence shall not be deemed to constitute the revocation of the Distribution Licence or (bb) the Issuer agreeing in writing with the Secretary of State for Trade and Industry (or any successor) to any revocation or surrender of the Licence or (cc) any legislation (whether primary or subordinate) being enacted terminating or revoking the Licence, except in any such case in circumstances where a licence or licences on substantially no less favourable terms is or are granted to the Issuer or a wholly-owned Subsidiary of the Issuer (the "Relevant Subsidiary") and in the case of such Relevant Subsidiary at the time of such grant it either executes in favour of the Trustee an unconditional and irrevocable guarantee in respect of the Bonds in such form as the Trustee may approve (such approval not to be unreasonably withheld or delayed) or becomes the primary obligor under the Bonds in accordance with Condition 12; or |
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| | | (B) | any modification (other than a modification which is of a formal, minor or technical nature) is made to the terms and conditions of the Licence unless two Directors of the Issuer have certified in good faith to the Trustee that the modified terms and conditions are not materially less favourable to the business of the Issuer provided that any modifications arising from a periodic review shall not constitute a Restructuring Event unless it results in the credit rating assigned to the short term debt of the Issuer by Standard & Poor's or Moody's being either (i) downgraded to a "speculative grade" rating "B" or below in the case of Standard & Poor's or to "not prime" or worse in the case of Moody's or (ii) withdrawn; or |
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| | | (C) | any legislation (whether primary or subordinate) is enacted which removes, qualifies or amends (other than an amendment which is of a formal, minor or technical nature) the duties of the Secretary of State for Trade and Industry (or any successor) and/or the Gas and Electricity Markets Authority (or any successor) under Section 3(A) of the Electricity Act 1989, unless two Directors of the Issuer have certified in good faith to the Trustee that such removal, qualification or amendment does not have a materially adverse effect on the financial condition of the Issuer; |
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| | provided that the replacement of the PES Licence with separate distribution and supply licences pursuant to the provisions of Schedule 7 of the Utilities Act 2000 (including without limitation under a scheme under part II of such Schedule 7) and any notice, agreement, legislation, direction, scheme or modification relating to the implementation of the new regime contained in the Utilities Act 2000 shall not constitute a Restructuring Event. |
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| | (vii) | "Restructuring Period" means: |
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| | | (A) | if at the time a Restructuring Event occurs there are Rated Securities, the period of 90 days starting from and including the day on which that Restructuring Event occurs; or |
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| | | (B) | if at the time a Restructuring Event occurs there are no Rated Securities, the period starting from and including the day on which that Restructuring Event occurs and ending on the day 90 days following the later of (aa) the date on which the Issuer shall seek to obtain a rating pursuant to Condition 7(d)(i) prior to the expiry of the 14 days referred to in the definition of Negative Rating Event and (bb) the date on which a Negative Certification shall have been given to the Issuer in respect of that Restructuring Event. |
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| | (viii) | A Rating Downgrade or a Negative Rating Event or a non-investment grade rating shall be deemed not to have occurred as a result or in respect of a Restructuring Event if the Rating Agency making the relevant reduction in rating or, where applicable, declining to assign a rating of at least investment grade as provided in this Condition 7 does not announce or publicly confirm or inform the Trustee in writing at its request that the reduction or, where applicable, declining to assign a rating of at least investment grade was the result, in whole or in part, of any event or circumstance comprised in or arising as a result of the applicable Restructuring Event. |
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| | The Trust Deed provides that the Trustee is under no obligation to ascertain whether a Restructuring Event, a Negative Rating Event or any event which could lead to the occurrence of or could constitute a Restructuring Event has occurred and until it shall have actual knowledge or express notice pursuant to the Trust Deed to the contrary, the Trustee may assume that no Restructuring Event, Negative Rating Event or other such event has occurred. |
All payments in respect of the Bonds (other than payments of interest in respect of Registered Bonds which will be made subject to the deduction of any United Kingdom income tax required to be withheld or deducted at source) by the Issuer shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature ("Taxes") imposed or levied by or on behalf of the United Kingdom, or any political sub-division of, or any authority in, or of, the United Kingdom having power to tax, unless the withholding or deduction of the Taxes is required by law. In that event (other than where the deduction or withholding is in respect of Registered Bonds as aforesaid), the Issuer will pay such additional amounts as may be necessary in order that the net amounts received by the Bondholders and Couponholders after the withholding or deduction shall equal the respective amounts which would have been receivable in respect of the Bonds or, as the case may be, Coupons in the absence of the withholding or deduction; except that no additional amounts shall be payable in relation to any payment in respect of any Bond or Coupon:
| (a) | to, or to a third party on behalf of, a holder who is liable to the Taxes in respect of the Bond or Coupon by reason of his having some connection with the United Kingdom other than the mere holding of the Bond or Coupon; or |
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| (b) | where the Coupon is presented for payment in the United Kingdom; or |
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| (c) | presented for payment more than 30 days after the Relevant Date except to the extent that a holder would have been entitled to additional amounts on presenting the same for payment on the last day of such period of 30 days; or |
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| (d) | to, or to a third party on behalf of, a holder who would not be liable or subject to the withholding or deduction by making a declaration of non-residence or other similar claim for exemption to the relevant tax authority. |
As used herein, "Relevant Date" means the date on which the payment first becomes due but, if the full amount of the money payable has not been received in London by the Principal Paying Agent or the Trustee on or before the due date, it means the date on which, the full amount of the money having been so received, notice to the effect shall have been duly given to the Bondholders by the Issuer in accordance with Condition 14.
Any reference in these Terms and Conditions to any amounts in respect of the Bonds shall be deemed also to refer to any additional amounts which may be payable under this Condition or under any undertakings given in addition to, or in substitution for, this Condition pursuant to the Trust Deed.
Bonds (whether in bearer or registered form) and Coupons (which for this purpose shall not include Talons) will become void unless presented for payment within periods of 10 years (in the case of principal) and five years (in the case of interest) from the Relevant Date in respect of the Bonds or, as the case may be, the Coupons, subject to the provisions of Conditions 5 or 7(c). There shall not be included in any Coupon sheet issued upon exchange of a Talon any Coupon which would be void upon issue under this Condition or Conditions 5 or 7(c).
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The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in principal amount of the Bonds then outstanding or if so directed by an Extraordinary Resolution (as defined in the Trust Deed) of the Bondholders shall (subject in each case to being indemnified to its satisfaction), (but, in the case of the happening of any of the events mentioned in sub-paragraphs (b), (c), (e), (f), (g) and (h) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Bondholders), give notice to the Issuer that the Bonds are, and they shall accordingly thereby forthwith become, immediately due and repayable at their principal amount together with accrued interest (as provided in the Trust Deed) if any of the following events (each an "Event of Default") shall have occurred (unless such Event of Default has been remedied to the satisfaction of the Trustee):
| (a) | if default is made for a period of 14 days or more in the payment of any principal or the purchase price due in respect of any Bond pursuant to Condition 7 or 21 days or more in the payment of any interest due in respect of the Bonds or any of them; or |
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| (b) | if the Issuer fails to perform or observe any of its other obligations, covenants, conditions or provisions under the Bonds or the Trust Deed and (except where the Trustee shall have certified to the Issuer in writing that it considers such failure to be incapable of remedy in which case no such notice or continuation as is hereinafter mentioned will be required) such failure continues for the period of 60 days (or such longer period as the Trustee may in its absolute discretion permit) next following the service by the Trustee on the Issuer of notice requiring the same to be remedied; or |
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| (c) | if (i) any other indebtedness for borrowed money of the Issuer or any Principal Subsidiary becomes due and repayable prior to its stated maturity by reason of an event of default (howsoever described) or (ii) any such indebtedness for borrowed money is not paid when due or, as the case may be, within any applicable grace period (as originally provided) or (iii) the Issuer or any Principal Subsidiary fails to pay when due (or, as the case may be, within any originally applicable grace period) any amount payable by it under any present or future guarantee for, or indemnity in respect of, any indebtedness for borrowed money of any person or (iv) any security given by the Issuer or any Principal Subsidiary for any indebtedness for borrowed money of any person or any guarantee or indemnity of indebtedness for borrowed money of any person becomes enforceable by reason of default in relation thereto and steps are taken to enforce such security save in any such case where there is a bona fide dispute as to whether the relevant indebtedness for borrowed money or any such guarantee or indemnity as aforesaid shall be due and payable, provided that the aggregate amount of the relevant indebtedness for borrowed money in respect of which any one or more of the events mentioned above in this sub-paragraph (c) has or have occurred equals or exceeds £20,000,000 or its equivalent in other currencies (as determined by the Trustee) or, if greater, 3 per cent. of the Capital and Reserves, and for the purposes of this subparagraph (c), "indebtedness for borrowed money" shall exclude Project Finance Indebtedness; or |
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| (d) | if any order shall be made by any competent court or any resolution shall be passed for the winding up or dissolution of the Issuer, save for the purposes of amalgamation, merger, consolidation, reorganisation, reconstruction or other similar arrangement on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Bondholders; or |
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| (e) | if any order shall be made by any competent court or any resolution shall be passed for the winding up or dissolution of a Principal Subsidiary, save for the purposes of amalgamation, merger, consolidation, reorganisation, reconstruction or other similar arrangement (i) not involving or arising out of the insolvency of such Principal Subsidiary and under which all the surplus assets of such Principal Subsidiary are transferred to the Issuer or any of its other Subsidiaries or (ii) the terms of which have previously been approved in writing by the Trustee or by an Extraordinary Resolution of the Bondholders; or |
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| (f) | if the Issuer or any Principal Subsidiary shall cease to carry on the whole or substantially the whole of its business, save in each case for the purposes of amalgamation, merger, consolidation, reorganisation, reconstruction or other similar arrangement (i) not involving or arising out of the insolvency of the Issuer or such Principal Subsidiary and under which all or substantially all of its assets are transferred to another member of the Group or (ii) under which all or substantially all of its assets are transferred to a third party or parties (whether associates or not) for full consideration by the Issuer or a Principal |
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| | Subsidiary on an arm's length basis or (iii) where the transferee is or immediately upon such transfer becomes a Principal Subsidiary or (iv) the terms of which have previously been approved in writing by the Trustee or by an Extraordinary Resolution of the Bondholders, provided that if the Issuer shall cease to hold or shall transfer the Licence other than where the Issuer ceases to hold the PES Licence (or the PES Licence has effect as separate distribution and supply licences) pursuant (in either case) to the provisions of Schedule 7 of the Utilities Act 2000 (including without limitation under a scheme under part II of such Schedule 7) it shall be deemed to have ceased to carry on the whole or substantially the whole of its business (and none of exceptions (i) to (iii) shall apply) unless the transferee assumes all the Issuer's obligations under the Bonds and the Trust Deed as primary obligor or gives a guarantee in form and substance acceptable to the Trustee in respect of the obligations of the Issuer under the Bonds and the Trust Deed; or |
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| (g) | if the Issuer or any Principal Subsidiary shall suspend or shall threaten to suspend payment of its debts generally or shall be declared or adjudicated by a competent court to be unable, or shall admit in writing its inability, to pay its debts (within the meaning of Section 123(1) or (2) of the Insolvency Act 1986) as they fall due, or shall be adjudicated or found insolvent by a competent court or shall enter into any composition or other similar arrangement with its creditors under Section 1 of the Insolvency Act 1986; or |
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| (h) | if a receiver, administrative receiver, administrator or other similar official shall be appointed in relation to the Issuer or any Principal Subsidiary or in relation to the whole or a substantial part of the undertaking or assets of any of them or a distress, execution or other process shall be levied or enforced upon or sued out against, or an encumbrancer shall take possession of, the whole or a substantial part of the assets of any of them and in any of the foregoing cases it or he shall not be paid out or discharged within 90 days (or such longer period as the Trustee may in its absolute discretion permit). |
For the purposes of sub-paragraph (g) above, Section 123(1)(a) of the Insolvency Act 1986 shall have effect as if for "£750" there was substituted "£250,000" or such higher figure as the Gas and Electricity Markets Authority (or any successor) may from time to time determine by notice in writing to the Secretary of State for Trade and Industry (or any successor) and the Issuer.
Neither the Issuer nor any Principal Subsidiary shall be deemed to be unable to pay its debts for the purposes of sub-paragraph (g) above if any such demand as is mentioned in Section 123(1)(a) of the Insolvency Act 1986 is being contested in good faith by the Issuer or the relevant Principal Subsidiary with recourse to all appropriate measures and procedures or if any such demand is satisfied before the expiration of such period as may be stated in any notice given by the Trustee under the first paragraph of this Condition 10.
For the purposes of these Terms and Conditions:
| (A) | "Principal Subsidiary" at any time shall mean a Subsidiary of the Issuer (not being an Excluded Subsidiary or any other Subsidiary of the Issuer more than 70 per cent, of whose indebtedness for borrowed money is Project Finance Indebtedness): |
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| | (i) | whose (a) net profits before tax or (b) gross assets represent 20 per cent. or more of the consolidated net profits before tax of the Group or consolidated gross assets of the Group respectively, in each case as calculated by reference to the then latest audited financial statements of such Subsidiary (consolidated in the case of a company which itself has Subsidiaries and which, in the normal course, prepares consolidated accounts) and the then latest audited consolidated financial statements of the Group; or |
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| | (ii) | to which is transferred all or substantially all of the business, undertaking and assets of a Subsidiary of the Issuer which immediately prior to such transfer is a Principal Subsidiary, whereupon the transferor Subsidiary shall immediately cease to be a Principal Subsidiary and the transferee Subsidiary shall cease to be a Principal Subsidiary under the provisions of this sub-paragraph (ii) (but without prejudice to the provisions of sub-paragraph (i) above), upon publication of its next audited financial statements; |
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| | all as more fully defined in the Trust Deed. |
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| | A report by the Auditors that in their opinion a Subsidiary of the Issuer is or is not or was or was not at any particular time or throughout any specified period a Principal Subsidiary shall, in the absence of manifest error, be conclusive and binding on all parties; |
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| (B) | "Capital and Reserves" means the aggregate of: |
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| | (i) | the amount paid up or credited as paid up on the share capital of the Issuer; and |
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| | (ii) | the total of the capital, revaluation and revenue reserves of the Group, including any share premium account, capital redemption reserve and credit balance on the profit and loss account but excluding sums set aside for taxation and amounts attributable to outside shareholders in Subsidiary Undertakings (as defined below) and deducting any debit balance on the profit and loss account, |
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| | all as shown in the then latest audited consolidated balance sheet of the Group prepared in accordance with the historical cost convention (as modified by the revaluation of certain fixed assets) for the purposes of the Companies Act 1985, but adjusted as may be necessary in respect of any variation in the paid up share capital or share premium account of the Issuer since the date of that balance sheet and further adjusted as may be necessary to reflect any change since the date of that balance sheet in the Subsidiary Undertakings comprising the Group and/or as the Auditors (as defined in the Trust Deed) may consider appropriate. |
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| | A report by the Auditors as to the amount of the Capital and Reserves at any given time shall, in the absence of manifest error, be conclusive and binding on all parties; |
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| (C) | "Excluded Subsidiary" means any Subsidiary of the Issuer (other than a Licensed Subsidiary): |
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| | (i) | which is a company whose principal assets and business are constituted by the ownership, acquisition, development and/or operation of an asset whether directly or indirectly; |
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| | (ii) | none of whose indebtedness for borrowed money in respect of the financing of such ownership, acquisition, development and/or operation of an asset is subject to any recourse whatsoever to any member of the Group (other than the Subsidiary itself or another Excluded Subsidiary) in respect of the repayment thereof, except as expressly referred to in paragraph (G)(ii)(c); and |
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| | (iii) | which has been designated as such by the Issuer by written notice to the Trustee, provided that the Issuer may give written notice to the Trustee at any time that any Excluded Subsidiary is no longer an Excluded Subsidiary, whereupon it shall cease to be an Excluded Subsidiary; |
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| (D) | "Group" means the Issuer and the Subsidiary Undertakings; |
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| (E) | "Subsidiary Undertaking" shall have the meaning given to it by Section 258 of the Companies Act 1985 (but shall exclude any undertakings (as defined in the Companies Act 1985) whose accounts are not included in the then latest published audited consolidated accounts of the Issuer, nor (in the case of an undertaking which has first become a subsidiary undertaking of a member of the Group since the date as at which any such audited accounts were prepared) would its accounts have been so included or consolidated if it had become so on or before that date); |
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| (F) | "indebtedness for borrowed money" means any present or future indebtedness (whether being principal, premium, interest or other amounts) for or in respect of (i) money borrowed, (ii) liabilities under or in respect of any acceptance credit or (iii) any notes, bonds, debentures, debenture stock, loan stock or other securities offered, issued or distributed whether by way of public offer, private placing, acquisition, consideration or otherwise and whether issued for cash or in whole or in part for a consideration other than cash; |
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| (G) | "Project Finance Indebtedness" means any indebtedness for borrowed money to finance the ownership, acquisition, development and/or operation of an asset: |
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| | (i) | which is incurred by an Excluded Subsidiary; or |
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| | (ii) | in respect of which the person or persons to whom any such indebtedness for borrowed money is or may be owed by the relevant borrower (whether or not a member of the Group) has or have no recourse whatsoever to any member of the Group (other than an Excluded Subsidiary) for the repayment thereof other than: |
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| | | (a) | recourse to such borrower for amounts limited to the cash flow or net cash flow (other than historic cash flow or historic net cash flow) from such asset; and/or |
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| | | (b) | recourse to such borrower for the purpose only of enabling amounts to be claimed in respect of such indebtedness for borrowed money in an enforcement of any encumbrance given by such borrower over such asset or the income, cash flow or other proceeds deriving therefrom (or given by any shareholder or the like in the borrower over its shares or the like in the capital of the borrower) to secure such indebtedness for borrowed money, provided that (aa) the extent of such recourse to such borrower is limited solely to the amount of any recoveries made on any such enforcement, and (bb) such person or persons are not entitled, by virtue of any right or claim arising out of or in connection with such indebtedness for borrowed money, to commence proceedings for the winding up or dissolution of the borrower or to appoint or procure the appointment of any receiver, trustee or similar person or officer in respect of the borrower or any of its assets (save for the assets the subject of such encumbrance); and/or |
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| | | (c) | recourse to such borrower generally, or directly or indirectly to a member of the Group, under any form of assurance, undertaking or support, which recourse is 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 being a payment obligation or an obligation to procure payment by another or an indemnity in respect thereof or any obligation to comply or to procure compliance by another with any financial ratios or other tests of financial condition) by the person against whom such recourse is available; |
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| (H) | "Subsidiary" means a subsidiary within the meaning of Section 736 of the Companies Act, 1985; |
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| (I) | "Licensed Subsidiary" means any Subsidiary of the Issuer which holds a public electricity supply licence granted under the Electricity Act 1989 or a distribution licence granted under Section 6(1)(c) of the Electricity Act 1989 as amended by Section 30 of the Utilities Act 2000; |
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| (J) | "Licence" means the PES Licence until such time as the Secretary of State for Trade and Industry (or any successor) makes a scheme under Section 13(2)(a) of Schedule 7 of the Utilities Act 2000 for the PES Licence to have effect as if it were a distribution licence and a supply licence granted under Section 6(1)(c) and 6(1)(d) respectively of the Electricity Act 1989 as amended by Section 30 of the Utilities Act 2000 from which point on it means the Distribution Licence; |
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| (K) | "PES Licence" means the public electricity supply licence granted by the Secretary of State for Energy to the Issuer under the Electricity Act 1989 in relation to its authorised area and excluding any second tier supply licence; and |
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| (L) | "Distribution Licence" means either the distribution licence granted to the Issuer under Section 6(1)(c) of the Electricity Act 1989 as amended by Section 30 of the Utilities Act 2000 or the licence of the Issuer having effect as if it were a distribution licence granted under Section 6(1)(c) of the Electricity Act 1989 as amended by Section 30 of the Utilities Act 2000, as appropriate. |
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| 11. | ENFORCEMENT |
The Trustee may at any time, at its discretion and without notice, take such proceedings against the Issuer as it may think fit to enforce the provisions of the Trust Deed, the Bonds and the Coupons but it shall not be bound to take any proceedings or any other action in relation to the Trust Deed, the Bonds or the Coupons unless (a) it shall have been so directed by an Extraordinary Resolution of the Bondholders or so requested in writing by the holders of at least one-quarter in principal amount of the Bonds then outstanding, and (b) it shall have been indemnified to its satisfaction. No Bondholder or Couponholder shall be entitled to proceed directly against the Issuer unless the Trustee, having become bound so to proceed, fails so to do within a reasonable period and such failure shall be continuing.
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The Trustee may, without the consent of the Bondholders or Couponholders, agree with the Issuer to the substitution in place of the Issuer (or of any previous substitute under this Condition) as the principal debtor under the Bonds, the Coupons and the Trust Deed of any Subsidiary of the Issuer, subject to (a) the Bonds being unconditionally and irrevocably guaranteed by the Issuer (save where the Issuer has transferred the Licence to the substituted Subsidiary), (b) the Trustee being satisfied that the interests of the Bondholders will not be materially prejudiced by the substitution, and (c) certain other conditions set out in the Trust Deed being complied with.
| 13. | REPLACEMENT OF BONDS AND COUPONS |
Should any Bond or Coupon be lost, stolen, mutilated, defaced or destroyed, it may be replaced at the specified office of the Paying Agent in London, in the case of a Bearer Bond or Coupon, or the Registrar, in the case of a Registered Bond, upon payment by the claimant of the expenses incurred in connection with the replacement and on such terms as to evidence and indemnity as the Issuer may reasonably require. Mutilated or defaced Bonds or Coupons must be surrendered before replacements will be issued.
Notices to holders of Registered Bonds will be mailed to them at their respective addresses in the Register and deemed to have been given on the fourth day (excluding Sundays) after the date of mailing, provided that, if at any time by reason of suspension or curtailment (or expected suspension or curtailment) of postal services within the United Kingdom or elsewhere, the Issuer is unable effectively to give notice to holders of Registered Bonds through the post, notices to holders of Registered Bonds will be valid if given in the same manner as other notices set out below.
Other notices to the Bondholders (including notices to holders of Bearer Bonds) will be valid if published in a leading English language daily newspaper published in London or such other English language daily newspaper with general circulation in Europe as the Trustee may approve. Any notice shall be deemed to have been given on the date of publication or, if so published more than once, on the date of the first publication. It is expected that publication will normally be made in the Financial Times. If publication as provided above is not practicable, notice will be given in such other manner, and shall be deemed to have been given on such date, as the Trustee may approve.
Couponholders will be deemed for all purposes to have notice of the contents of any notice given to the Noteholders in accordance with this Condition.
| 15. | MEETINGS OF BONDHOLDERS, MODIFICATION, WAIVER AND AUTHORISATION |
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| (a) | The Trust Deed contains provisions for convening meeting of the Bondholders to consider any matter affecting their interests, including the modification by Extraordinary Resolution of these Terms and Conditions or the provisions for the Trust Deed. The quorum at any meeting for passing an Extraordinary Resolution will be one or more persons present holding or representing a clear majority in principal amount of the Bonds for the time being outstanding, or at any adjourned such meeting one or more persons present whatever the principal amount of the Bonds held or represented by him or them, except that at any meeting, the business of which includes the modification of certain of the provisions of these Terms and Conditions and certain of the provisions of the Trust Deed, the necessary quorum for passing an Extraordinary Resolution will be one or more persons present holding or representing not less than two-thirds, or at any adjourned such meeting not less than one-third, of the principal amount of the Bonds for the time being outstanding. An Extraordinary Resolution passed at any meeting of the Bondholders will be binding on all Bondholders, whether or not they are present at the meeting, and on all Couponholders. |
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| (b) | The Trustee may agree, without the consent of the Bondholders or Couponholders, to any modification (subject to certain exceptions) of, or to the waiver or authorisation of any breach or proposed breach of, any of these Terms and Conditions or any of the provisions of the Trust Deed which is not, in the opinion of the Trustee, materially prejudicial to the interests of the Bondholders or to any modification which is of a formal, minor or technical nature or to correct a manifest error. |
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| (c) | In connection with the exercise by it of any of its trusts, powers, authorities or discretion (including, without limitation, any modification, waiver, authorisation or substitution), the Trustee shall have regard to the interests of the Bondholders as a class and, in particular but without limitation, shall not have regard to the consequences of the exercise of its trusts, powers, authorities or discretions for individual Bondholders and Couponholders resulting from their being for any purpose domiciled or resident in or otherwise connected with, or subject to the jurisdiction of, any particular territory and the Trustee shall not be entitled to require, nor shall any Bondholder or Couponholder be entitled to claim, from the Issuer, the Trustee or any other person any indemnification or payment in respect of any tax consequences of any such exercise upon individual Bondholders or Couponholders except to the extent already provided for in Condition 8 and/or any undertaking given in addition to, or in substitution for, Condition 8 pursuant to the Trust Deed. |
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| (d) | Any modification, waiver or authorisation shall be binding on the Bondholders and the Couponholders and, unless the Trustee agrees otherwise, any modification shall be notified by the Issuer to the Bondholders as soon as practicable thereafter in accordance with Condition 14. |
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| 16. | INDEMNIFICATION OF THE TRUSTEE |
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| The Trust Deed contains provisions for the indemnification of the Trustee and for its relief from responsibility, including provisions relieving it from taking action unless indemnified to its satisfaction. |
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| 17. | FURTHER ISSUES |
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| The Issuer is at liberty from time to time, without the consent of the Bondholders or Couponholders, to create and issue further bonds or notes (whether in bearer or registered form) either (a) ranking pari passu in all respects (or in all respects save for the first payment of interest thereon) and so that the same shall be consolidated and form a single series with the outstanding bonds or notes of any series (including the Bonds) constituted by the Trust Deed or any supplemental deed or (b) upon such terms as to ranking, interest, conversion, redemption and otherwise as the Issuer may determine at the time of the, issue. Any further bonds or notes which are to form a single series with the outstanding bonds or notes of any series (including the Bonds) constituted by the Trust Deed or any supplemental deed shall, and any other further bonds or notes may (with the consent of the Trustee), be constituted by a deed supplemental to the Trust Deed. The Trust Deed contains provisions for convening a single meeting of the Bondholders and the holders of bonds or notes of other series in certain circumstances where the Trustee so decides. |
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The Bonds confer no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Bonds, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
The Trust Deed, the Bonds and the Coupons are governed by, and will be construed in accordance with, English law.
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PRINCIPAL PAYING AGENT
Citibank, N.A.
P.O. Box 18055
5 Carmelite Street
London EC4Y 0PA
OTHER PAYING AGENTS
Citibank International plc
c/- The Bank of New York
Avenue des Arts 35
Kunstlaan
B-1040 Brussels | BNP Paribas S.A.
10A Boulevard Royal
L-2093 Luxembourg |
and/or such other or further Principal Paying Agent and other Paying Agents and/or specified offices as may from time to time be appointed by the Issuer with the approval of the Trustee and notice of which has been given to the Bondholders.
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| EXECUTED as a deed by | ) |
| UNITED UTILITIES ELECTRICITY PLC | ) |
| acting by | ) |
| and | ) | Director |
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| | | Secretary |
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| THE COMMON SEAL of | ) | |
| THE LAW DEBENTURE TRUST | ) | |
| CORPORATION p.l.c. | ) | |
| was affixed to this deed | ) | |
| in the presence of: | ) | |
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| | | Director |
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| | | Authorised Signatory |
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DATED 15TH FEBRUARY, 2002
UNITED UTILITIES ELECTRICITY PLC
(formerly NORWEB plc)
- and -
THE LAW DEBENTURE TRUST
CORPORATION p.l.c.
_______________________________________
FOURTH SUPPLEMENTAL TRUST DEED
constituting
£100,000,000
8.875 per cent. Bonds 2026
_______________________________________
For the Issuer:
SLAUGHTER AND MAY
35 Basinghall Street
London EC2V 5DB
For the Trustee:
ALLEN & OVERY
One New Change
London EC4M 9QQ
