EXHIBIT 10.10
CONFORMED COPY
AGREEMENT
DATED 31st July, 1997
(pound)1,085,000,000
CREDIT FACILITY
FOR
YORKSHIRE POWER GROUP LIMITED
PROVIDED BY
UNION BANK OF SWITZERLAND
ALLEN & OVERY
London
B1:99092.5
INDEX
CLAUSE PAGE
1. Interpretation.......................................................1
2. The Facility........................................................14
3. Purpose.............................................................14
4. Conditions precedent................................................15
5. Drawdown............................................................15
6. Repayment...........................................................16
7. Prepayment and cancellation.........................................16
8. Interest Periods....................................................17
9. Interest............................................................19
10. Payments............................................................20
11. Taxes...............................................................20
12. Market disruption...................................................22
13. Increased costs.....................................................22
14. Illegality and mitigation...........................................24
15. Representations and warranties......................................24
16. Undertakings........................................................27
17. Default.............................................................33
18. Fees................................................................36
19. Expenses............................................................36
20. Stamp duties........................................................36
21. Indemnities.........................................................37
22. Evidence and calculations...........................................38
23. Waivers and remedies cumulative.....................................38
24. Changes to the Parties..............................................38
25. Disclosure of information...........................................39
26. Set-off.............................................................39
27. Severability........................................................39
28. Counterparts........................................................39
29. Notices.............................................................39
30. Governing law.......................................................40
Schedules
1. Conditions precedent documents......................................42
2. Calculation of the MLA Cost.........................................43
3. Form of Request.....................................................45
Signatories....................................................................
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THIS AGREEMENT is dated 31st July, 1997 between:-
(1) YORKSHIRE POWER GROUP LIMITED (the "Borrower"); and
(2) UNION BANK OF SWITZERLAND as lender (the "Bank").
IT IS AGREED as follows:-
1. INTERPRETATION
1.1 Definitions
In this Agreement:-
"Adjusted Share Capital and Reserves"
means the aggregate of:
(a) the amount paid up or credited as paid up on the issued share capital
of the Borrower; and
(b) the amounts standing to the credit of the consolidated capital and
revenue reserves of the Group after adding back an amount equal to all
windfall tax paid or provided for by the Group
adjusted, to the extent that the following items have not already been
added, deducted or excluded in arriving at the figures referred to in
paragraph (a) or (b) above:
(i) by adding Subordinated Debt;
(ii) by deducting the amounts standing to the debit of the consolidated
reserves of the Group;
(iii) by deducting any amounts attributable to interests of non-Group
members in Group subsidiaries;
(iv) by deducting any reserves set aside for deferred taxation;
(v) by deducting the amount by which the net book value of any fixed asset
has been written up after the date of this Agreement (or, in the case
of a person becoming a member of the Group after that date, the date
on which it becomes a member of the Group) by way of revaluation or on
its transfer from one member of the Group to another (but no such
deduction shall be made in respect of any amount if supported by, and
not exceeding the amount shown by, an independent written valuation),
but so that no amount to be added, deducted or excluded as a result of any
of the above shall be added, deducted or excluded more than once in the
same calculation.
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"Affiliate"
means a Subsidiary or a holding company (as defined in Section 736 of the
Companies Act 1985) of the Bank or any other Subsidiary of that Holding
Company.
"Anticipated Refinancing"
means each of:
(a) each sterling bond issue to be arranged for the Borrower by the Bank
pursuant to a mandate letter dated on or about the date of this
Agreement;
(b) any syndicated loan agreement to be arranged for the Borrower by the
Bank referred to in the Fee Letter;
(c) any securitisation or "yankee" bond arranged for the Borrower;
(d) any tax deductible preference share issue; or
(e) any other appropriate funding outside the banking markets,
in each case for the purposes of reducing or repaying the obligations of
the Borrower under this Agreement.
"Applicable Rate"
means the rate quoted by the Bank to the Borrower to be that at which money
can be deposited in the London interbank market on the earliest available
day, provided that the applicable rate shall not be less than LIBID nor
more than LIBOR.
"Balance Sheet"
means, at any time, the then most recent audited consolidated annual or
unaudited consolidated half yearly balance sheet of the Group delivered to
the Bank by the Borrower under Clause 16.2 (Financial information).
"Borrowings"
means indebtedness in respect of:
(a) moneys borrowed or raised including (except for the purposes of Clause
17.5 (Cross default)) the recourse element of any asset securitisation
or other factoring excluding any amounts owing for assets purchased or
services obtained on trade credit terms in the ordinary course of
business;
(b) amounts raised by means of acceptances under any acceptance credit
facility or otherwise (not being acceptances in relation to the
purchase of assets or services in the ordinary course of business);
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(c) the deferred purchase price of assets or services the payment of which
is deferred for a period in excess of ninety days (other than assets
or services obtained on trade credit terms normal in the business
concerned);
(d) the principal amount and any premium payable by the relevant company
from time to time owing in respect of any loan notes, debentures,
bonds or other similar instruments;
(e) the capital value of any financial lease, hire purchase arrangements
or any arrangement treated as a financial lease required to be
capitalised and treated as a borrowing in the consolidated balance
sheet of the Group;
(f) for the purposes of Clause 17.5 (Cross default) (only) net
indebtedness under any currency or interest cap, swap or collar; and
(g) any guarantee or assurance against financial loss or indemnity in
respect of the borrowings of any other person not being a member of
the Group of a type referred to in paragraphs (a) to (f) (inclusive)
above (but excluding any such guarantee or assurance in respect of the
performance of any contract or service not involving financial loss or
indemnity in respect of borrowings),
but shall exclude:
(A) liabilities in respect of the Pooling and Settlement Agreement; and
(B) Project Finance Borrowings.
"Business Day"
means a day (other than a Saturday or a Sunday) on which banks are open for
business in London.
"Capitalisation"
means, at any time, the aggregate of Adjusted Share Capital and Reserves
and Debt.
"Commitment"
means each of the Facility A Commitment and the Facility B Commitment.
"Commitment Period"
means each of the Facility A Commitment Period and the Facility B
Commitment Period.
"Company"
means Yorkshire Electricity Group plc.
"Debt"
means Borrowings (excluding Subordinated Debt) less Investments.
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"Default"
means an Event of Default or an event which, with the giving of notice or
lapse of time provided for in Clause 17 (Default) (or any combination of
the foregoing), would constitute an Event of Default.
"Director General"
means the person from time to time appointed by the Secretary of State to
hold office as Director General of Electricity Supply for the purposes of
the Electricity Act 1989.
"Drawdown Date"
means the date of the advance of a Loan.
"EBITDA"
means, in respect of any Relevant Period, the total operating profit for
continuing operations, acquisitions (as a component of continuing
operations) and discontinued operations of the Group before taking into
account:
(a) Interest Payable and Interest Receivable;
(b) all amounts provided for depreciation and amortisation (including,
without limitation, amortisation of any goodwill);
(c) all exceptional and extraordinary items; and
(d) all taxes including (without limitation, the windfall tax),
in each case for that Relevant Period but after:
(A) deducting any gain over book value arising in favour of the Group on
the sale, lease or other disposal of any asset (other than on the sale
of trading stock) during the Relevant Period and any gain arising on
revaluation of any asset during that Relevant Period, in each case to
the extent that it would otherwise be taken into account, whether as
an exceptional item or otherwise; and
(B) excluding the earnings or profit before interest, tax depreciation and
amortisation (as determined in accordance with the preceding
paragraphs of this definition) and excluding all exceptional and
extraordinary items of any company referred to in paragraph (a) of the
definition of Project Finance Borrowings,
(all calculated on a consolidated basis disregarding any portion of any
item taken into account in that calculation which is attributable to any
minority interests in Subsidiaries).
"Environmental Law"
means any applicable law (including, without limitation, common law),
regulation, directing code of practice, circular, guidance notice or the
like concerning pollution or the protection
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of human health, the environment, the conditions of the work place or the
manufacture, processing, generation, transportation, storage, treatment or
disposal of dangerous substances, pollutants, contaminants, chemicals or
toxic or hazardous substances or waste.
"Environmental Licence"
means any consent required by any Environmental Law.
"Event of Default"
means an event specified as such in Clause 17.1 (Events of Default).
"Existing Facility"
means the (pound)1,140,000,000 term loan and revolving facility agreement
dated 24th February, 1997 between the Borrower as borrower, Yorkshire
Holdings PLC as Guarantor and Merill Lynch & Co. as Arranger and
Syndication Agent.
"Facility A"
means the sterling term loan facility so designated, the terms of which are
set out in this Agreement.
"Facility A Commitment"
means (pound)1,035,000,000 to the extent not cancelled or reduced under
this Agreement.
"Facility A Commitment Period"
means the period from the date of this Agreement to the Term Date (both
dates inclusive).
"Facility A Loan"
means a Loan drawn down or to be drawn down under Facility A.
"Facility B"
means the sterling revolving credit facility so designated, the terms of
which are set out in this Agreement.
"Facility B Commitment"
means (pound)50,000,000 to the extent not cancelled or reduced under this
Agreement.
"Facility B Commitment Period"
means the period from the date of this Agreement to the Repayment Date
(both dates inclusive).
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"Facility B Loan"
means a Loan drawn down or to be drawn down under Facility B.
"Fee Letter"
means a letter dated the date of this Agreement between the Bank and the
Borrower setting out, amongst other things, the amount of the fee referred
to in Clause 18 (Fees).
"Finance Document"
means this Agreement or any other document designated as such by the Bank
and the Borrower.
"Group"
means the Borrower and its Subsidiaries.
"Holdings"
means Yorkshire Holdings PLC.
"Interest Payable"
means, in respect of any Relevant Period, all interest payable and similar
charges as shown in (or in the notes to) the financial statements of the
Group (calculated on a consolidated basis) for the Relevant Period but
excluding interest payable on Project Finance Borrowings by companies
referred to in paragraph (a) of that definition.
"Interest Period"
means each period determined in accordance with Clause 8 (Interest
Periods).
"Interest Receivable"
means, in respect of any Relevant Period, all interest receivable and
similar income as shown in (or in the notes to) the financial statements of
the Group (calculated on a consolidated basis) for that Relevant Period but
excluding interest receivable by a company of the type referred to in
paragraph (a) of the definition of Project Finance Borrowings.
"Investments"
means, as at any date, the aggregate (calculated on a consolidated basis)
of:
(a) cash in hand in a jurisdiction where such amounts are freely
transferable out of that jurisdiction and convertible into currencies
dealt in on the London foreign exchange market;
(b) money at call in a jurisdiction, and freely convertible into
currencies, referred to in (a) above;
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(c) deposits and certificates of deposit the term of which has twelve
months or less remaining to maturity in a jurisdiction, and freely
convertible into currencies, referred to in (a) above;
(d) United Kingdom gilts;
(e) deposits made with the Commissioners of Inland Revenue in respect of
which certificates of tax deposit have been issued by Her Majesty's
Treasury;
(f) sterling bills of exchange eligible for rediscount at the Bank of
England;
(g) bonds rated AA- (or the equivalent) or above by Standard & Poor's
Ratings Group, IBCA Limited or Moody's Investors Service Limited; and
(h) any other negotiable money market instrument issued by an issuer in a
jurisdiction, and convertible into currencies, referred to in (a)
above with a maximum maturity of twelve months or less, excluding
commercial paper (unless it is rated at least A1 by Standard & Poor's
Ratings Group or IBCA Limited or P1 by Moody's Investors Service
Limited),
provided that, when the aggregate amount of Investments required to be
taken into account for the purposes of this definition on any particular
day is being ascertained, any such Investments denominated or repayable or
in respect of which monies are payable in a currency other than sterling
shall be taken into account at their sterling equivalent at the rate of
exchange prevailing on that day in London using the Bank's spot rate as of
11.00 a.m. on such date for the purchase of such currency with sterling.
"LIBID"
means, in relation to an amount received by the Bank referred to in Clause
21.2(b) (Other indemnities), the rate quoted by the Bank to leading banks
in the London interbank market at or about 11.00 a.m. on the relevant day
for the taking of deposits in sterling and in an amount approximately equal
to the amount so received from the Borrower for the period from and
including the date that payment is received by the Bank to but excluding
the last day of the Interest Period of the relevant Loan or amount.
"LIBOR"
means, in relation to an Interest Period:
(a) the rate appearing on the Telerate Screen page 3750 or any equivalent
successor to such page or other page as appropriate on the Telerate
Service or such other service as may, from time to time, display the
British Bankers' Association Interest Settlement Rates for deposits in
the relevant currency (as agreed between the relevant Borrower and the
Bank (acting reasonably)) (the "Telerate Screen"); or
(b) (in the absence of manifest error, if no such offered rate for
quotation appears on the Telerate Screen) the rate quoted by the Bank
to leading banks in the London interbank market,
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(in each case) at 11.00 a.m. on the first day of that Interest Period, as
being the interest rate(s) quoted in the London interbank market for the
offering of deposits in sterling for a period equal to that Interest Period
of that Loan.
"Licence"
means the public electricity supply licence granted by the Secretary of
State to the Company under Section 6(I)(c) of the Electricity Act 1989.
"Loan"
means, subject to Clause 8 (Interest Periods), the principal amount of each
borrowing by the Borrower under this Agreement or the principal amount
outstanding of that borrowing.
"Margin"
means:
(a) for the period from the date of this Agreement to the date falling 3
months after the date of this Agreement (both dates inclusive) 0.125
per cent. per annum;
(b) thereafter to and including the date falling six months after the date
of this Agreement, 0.20 per cent. per annum;
(c) thereafter to and including the date falling nine months after the
date of this Agreement, 0.30 per cent. per annum; and
(d) thereafter 0.50 per cent. per annum.
"MLA Cost"
means the cost imputed to the Bank of compliance with the Mandatory Liquid
Assets requirements of the Bank of England during an Interest Period,
expressed as a rate per annum and determined in accordance with Schedule 2.
"Net Interest Payable"
means, in respect of any Relevant Period, Interest Payable less Interest
Receivable for that Relevant Period.
"Party"
means a party to this Agreement.
"Permitted Security Interest"
means any Security Interest:
(a) arising pursuant to an order of attachment or injunction restraining
disposal of assets or similar legal process which is contested by the
Borrower or any of its Subsidiaries in good faith or created in favour
of a plaintiff or defendant in any action of the court
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or tribunal before whom such action is brought as security for costs
or expenses where the Borrower or one of its Subsidiaries is
prosecuting or defending such action in the bona fide interests of the
Group;
(b) arising by operation of law or contained in a contract for the sale of
goods or supply of services entered into in the ordinary course of
business of the company creating the same or which is a pledge over or
assignment of documents of title, insurance policies and sale
contracts in relation to commercial goods created or made in the
ordinary course of business to secure the purchase price of goods or
indebtedness to finance such purchase price;
(c) over or affecting any asset acquired by a member of the Group after
the date hereof and subject to which such asset is acquired provided
that the principal amount secured by such Security Interest is not
increased either as a result of such acquisition or thereafter;
(d) over or affecting any asset of any company which becomes a member of
the Group after the date hereof, where such Security Interest is
created prior to the date on which such company becomes a member of
the Group and provided that the principal amount secured by such
Security Interest is not increased either as a result of such company
becoming a member of the Group or thereafter;
(e) created or granted in favour of the European Investment Bank or any
successor institution or in respect of any financial indebtedness
originally specified to mature no earlier than the [tenth] anniversary
of the date of the agreement originally evidencing such financial
indebtedness;
(f) which is a Security Interest (a "Substitute Security Interest") which
replaces any Permitted Security Interest and which secures an amount
not exceeding the principal amount secured by such Permitted Security
Interest together with any interest accruing on such amounts from the
date such Substitute Security Interest is created or arises and any
fees or expenses incurred in relation thereto and in such
circumstances when such Permitted Security Interest will be released
as a consequence of such Substitute Security Interest being granted;
(g) over or affecting an asset where such Security Interest was granted in
connection with the acquisition or development for the sole purpose of
financing or refinancing that acquisition or development;
(h) arising in connection with any cash management or netting arrangements
made between any banks or financial institutions and any member or
members of the Group;
(i) created prior to the date of this Agreement provided the principal
amount secured by such Security Interest shall not be increased after
the date of this Agreement;
(j) arising out of title retention provisions in a supplier's standard
conditions of supply of goods acquired by any member of the Group in
the ordinary course of business;
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(k) over assets and/or (where such assets comprise substantially the whole
of the assets of the owner thereof) shares or the like in the owner of
such assets securing borrowings incurred to finance the cost of
developing (or acquiring and developing) such assets (and/or securing
any indebtedness in respect of hedging actual or projected exposure in
respect of these borrowings) where such borrowings are Project Finance
Borrowings;
(l) created under or pursuant to, or in accordance or connection with, the
terms of any pooling and settlement agreement (including, without
limitation, the Pooling and Settlement Agreement) or pooling and
settling arrangements of the electricity supply industry or any
transactions or arrangements entered into in connection with the
management of risks relating thereto;
(m) securing indebtedness not otherwise permitted to be secured by
Security Interests provided that the aggregate principal amount of the
indebtedness so secured under this paragraph (m) shall not at any time
exceed (pound)10,000,000 or (if higher) 2 per cent. of Adjusted Share
Capital and Reserves; or
(n) to the creation or subsistence of which the Bank at any time consents
in writing.
"Pooling and Settlement Agreement"
means an agreement dated 30 March 1990 (as amended and restated at 22 April
1994), made by the Company with The National Grid Company plc and others
setting out the rules and procedures for the operation of an electricity
trading pool and of a settlement system and, while the same has effect, the
Initial Settlement Agreement dated 30 March 1990;
"Principal Subsidiary"
means Holdings, the Company or a Subsidiary of the Borrower (not being a
Subsidiary falling within category (a) of the definition of Project Finance
Borrowings or any other Subsidiary of the Borrower whose only Borrowings
are Project Finance Borrowings):
(a) whose (i) net assets or (ii) turnover represent 10 per cent. or more
of the net assets of the Group or consolidated turnover 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
(b) to which is transferred all or substantially all of the business,
undertaking and assets of a Subsidiary of the Borrower 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 (b)
(but without prejudice to the provisions of sub-paragraph (a) above),
upon publication of its next audited financial statements; or
(c) which is a holder of any public electricity supply licence granted by
the Secretary of State.
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"Project Finance Borrowings"
means any Borrowings to finance the ownership, acquisition, construction,
development and/or operation of an asset:
(a) made by a single purpose company (whether or not a member of the
Group) whose principal assets and business are constituted by the
ownership, acquisition, construction, development and/or operation of
an asset and whose liabilities in respect of the relevant financing
are not directly or indirectly the subject of a guarantee, indemnity
or any other form of assurance, undertaking or support from any member
of the Group except as expressly referred to in paragraph (b)(iii)
below; or
(b) in respect of which the person or persons to whom such Borrowings are
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 for the repayment of or payment of any sum relating to such
Borrowings other than:
(i) recourse to the relevant borrower for amounts limited to the
aggregate cash flow or net cash flow (other than historic cash
flow or historic net cash flow) from such asset; and/or
(ii) recourse to such borrower for the purpose only of enabling
amounts to be claimed in respect of those Borrowings in an
enforcement of any Security Interest given by such borrower over
such asset or the income, cash flow or other proceeds arising
therefrom (or given by any shareholder or the like in the
borrower over its shares or the like in the capital of the
relevant borrower) to secure those Borrowings or any recourse
referred to in (iii) below, provided that (A) the extent of such
recourse to such borrower is limited solely to the amount of any
recoveries made on any such enforcement, and (B) such person or
persons are not entitled, by virtue of any right or claim arising
out of or in connection with such Borrowings, 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 Security
Interest); and/or
(iii) recourse to such borrower generally, or directly or indirectly
to a member of the Group under any form of assurance, 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 any obligation to procure payment
by another or an obligation to comply or to procure compliance by
another with any financial ratios or other tests of financial
condition) by the person against whom such recourse is available;
or
(c) which the Bank shall have agreed (acting reasonably) in writing to
treat as a Project Finance Borrowing for the purposes of this
Agreement.
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"Qualifying Bank"
means a bank which:
(a) is a bank within the meaning of Section 840A of the Income and
Corporation Taxes Act 1988;
(b) will be beneficially entitled to any interest to be paid to it (as the
Bank) under this Agreement; and
(c) is within the charge to United Kingdom corporation tax as respects
such interest.
"Relevant Period"
means each period of 12 months ending on the date of the audited
consolidated accounts for each of the Borrower's financial years and on the
date of the Borrower's unaudited consolidated accounts for the first half
of each of the Borrower's financial years.
"Repayment Date"
means the date falling 364 days after the date of this Agreement.
"Request"
means a request made by the Borrower for a Loan, substantially in the form
of Schedule 3.
"Rollover Loan"
means, in relation to a particular date, one or more Facility B Loans:
(a) whose proposed Drawdown Date is the same as the last day of the
Interest Period of one or more existing Facility B Loans; and
(b) whose aggregate principal amount does not exceed the aggregate
outstanding principal amount of all existing Facility B Loans whose
Interest Period ends on that Drawdown Date.
"Secretary of State"
means the person from time to time holding office as the Secretary of State
for Trade and Industry or any successor office thereto;
"Security Interest"
means any mortgage, pledge, lien (other than a lien arising by operation of
law), charge or other security interest.
"Subordinated Debt"
means, at any time, the outstanding amount (including capitalised interest)
of Borrowings which is:
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(a) owing by the Borrower to any of its shareholders or a wholly-owned
subsidiary (other than a member of the Group) of any of them; and
(b) fully subordinated to the indebtedness of the Borrower under this
Agreement by a subordination agreement in an agreed form.
"Subsidiary"
means:-
(a) a subsidiary within the meaning of Section 736 of the Companies Act
1985 as amended by Section 144 of the Companies Act 1989; and
(b) unless the context otherwise requires, a subsidiary undertaking within
the meaning of Section 21 of the Companies Act 1989.
"Term Date"
means the date falling 10 Business Days after the date of this Agreement.
1.2 Construction
(a) In this Agreement, unless the contrary intention appears, a reference to:-
(i) an "agreed form" means, in the case of a document, the form of that
document agreed between the Borrower and the Bank as evidenced by the
initialling of that document (or other written confirmation of the
same) by the Borrower and the Bank or their respective legal advisers;
"assets" includes properties, revenues and rights of every
description;
an "authorisation" includes an authorisation, consent, approval,
resolution, licence, exemption, filing and registration;
a "month" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
calendar month, except that, if there is no numerically corresponding
day in the month in which that period ends, that period shall end on
the last day in that calendar month;
a "regulation" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law) of any
governmental body, agency, department or regulatory, self-regulatory
or other authority or organisation;
"tax" includes any present or future tax, levy, impost, duty, charge,
fee deduction or withholding of any nature and whatever called by
whomsoever and wherever imposed, levied, collected, withheld or
assessed;
the "windfall tax" is a reference to any tax substantially similar to
the windfall tax provided for by Part I and Schedules 1 and 2 of the
Finance Bill ordered to be printed by the House of Commons on 7th
July, 1997.
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(ii) a provision of law is a reference to that provision as amended or
re-enacted;
(iii) a Clause or a Schedule is a reference to a clause of or a schedule to
this Agreement;
(iv) a person includes its successors and assigns;
(v) a Finance Document or another document is a reference to that Finance
Document or other document as amended, novated or supplemented; and
(vi) a time of day is a reference to London time.
(b) Unless the contrary intention appears, a term used in any other Finance
Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in this
Agreement.
(c) The index to and the headings in this Agreement are for convenience only
and are to be ignored in construing this Agreement.
1.3 Financial definitions
In this Agreement Adjusted Share Capital and Reserves as at the end of a
Relevant Period, and EBITDA, Interest Payable and Interest Receivable for
any Relevant Period shall be determined or calculated by reference to the
financial statements of the Borrower for that Relevant Period delivered to
the Bank under Clause 16.2 (Financial information).
2. THE FACILITY
(a) Subject to the terms of this Agreement, the Bank agrees:
(i) to make Facility A Loans available during the Facility A Commitment
Period up to an aggregate principal amount not exceeding the Facility
A Commitment; and
(ii) to make Facility B Loans available during the Facility B Commitment
Period up to an aggregate principal amount not exceeding at any time
the Facility B Commitment.
(b) No more than 10 Loans shall be outstanding at any time.
3. PURPOSE
The Borrower shall apply each Loan towards its general corporate purposes
including (without limitation) prepayment of the Existing Facility. Without
affecting the obligations of the Borrower in any way, the Bank is not bound
to monitor or verify the application of any Loan.
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4. CONDITIONS PRECEDENT
4.1 Documentary conditions precedent
The obligations of the Bank to the Borrower under this Agreement are
subject to the condition precedent that it has received all of the
documents set out in Schedule 1 in the agreed form.
4.2 Further conditions precedent
The obligation of the Bank to make any Loan is subject to the further
conditions precedent that on both the date of the Request and the Drawdown
Date:-
(a) the representations and warranties in Clause 15 (Representations and
warranties) to be repeated on those dates are correct in all material
respects and will be correct in all material respects immediately
after the Loan is made; and
(b) (i) (in the case of a Loan other than a Rollover Loan) no Default
(ii) in the case of a Rollover Loan, no Event of Default
is outstanding or would result from the making of the Loan.
5. DRAWDOWN
5.1 Commitment Period
(a) The Borrower may borrow a Loan during the relevant Commitment Period if the
Bank receives, not later than:
(i) 4.00 p.m. on the Business Day before the proposed Drawdown Date (in
the case of Facility A); or;
(ii) 10.00 a.m. on the proposed Drawdown Date (in the case of Facility B),
a duly completed Request.
(b) The undrawn amount (if any) of the Facility A Commitment shall
automatically be cancelled at close of business on the Term Date and the
Facility B Commitment shall automatically be cancelled in full on the
Repayment Date.
5.2 Completion of Requests
A Request will not be regarded as having been duly completed unless:-
(a) the Drawdown Date is a Business Day (which, in the case of Facility A,
must fall on or before the Term Date);
(b) the Facility under which the Loan is to be made is specified;
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(c) the principal amount of the Loan is a minimum of (pound)25,000,000 (in
the case of Facility A) or (pound)1,000,000 (in the case of Facility
B) and (in each case) an integral multiple of (pound)1,000,000 or the
balance of the relevant undrawn Commitment;
(d) the first Interest Period selected complies with Clause 8 (Interest
Periods); and
(e) the payment instructions comply with Clause 10 (Payments).
Each Request must specify one Loan only, but the Borrower may, subject to
the other terms of this Agreement, deliver more than one Request on any one
day.
5.3 Advance of Loan
Subject to the terms of this Agreement, the Bank shall make the Loan
available to the Borrower on the relevant Drawdown Date.
6. REPAYMENT
6.1 Facility A
The Borrower shall repay each Facility A Loan in full on the Repayment
Date.
6.2 Facility B
The Borrower shall repay each Facility B Loan in full on the last day of
the Interest Period for that Facility B Loan.
6.3 Reborrowing
(a) Amounts repaid under Facility B may be re-borrowed, in accordance with the
terms of this Agreement, prior to the Repayment Date.
(b) Subject to paragraph (a) above, no amount repaid under this Agreement may
be re-borrowed.
7. PREPAYMENT AND CANCELLATION
7.1 Voluntary prepayment
The Borrower may at any time, by giving not less than 7 days' prior notice
to the Bank, prepay any Loan in whole or in part (but, if in part, in a
minimum amount of (pound)10,000,000 and an integral multiple of
(pound)1,000,000).
7.2 Voluntary cancellation
The Borrower may, by giving not less than 7 days' prior notice to the Bank,
cancel the undrawn amount of either Commitment in whole or in part (but, if
in part, in a minimum amount of (pound)10,000,000 and an integral multiple
of (pound)1,000,000).
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7.3 Additional right of prepayment and cancellation
If:-
(a) the Borrower is required to pay to the Bank any additional amounts
under Clause 11 (Taxes); or
(b) the Borrower is required to pay to the Bank any amount under Clause 13
(Increased costs); or
(c) interest on a Loan is being calculated in accordance with Clause 12.2
(Alternative basis),
then, without prejudice to the obligations of the Borrower under those
Clauses, the Borrower may, whilst the circumstances continue, serve a
notice of prepayment and cancellation on the Bank. On the date falling 5
Business Days after the date of service of the notice:-
(i) the Borrower shall prepay all the Loans; and
(ii) the undrawn Commitment shall be cancelled.
7.4 Miscellaneous provisions
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable.
(b) All prepayments under this Agreement shall be made together with accrued
interest on the amount prepaid.
(c) No prepayment or cancellation is permitted except in accordance with the
express terms of this Agreement.
(d) No amount prepaid under Facility A may subsequently be re-borrowed. Subject
to the terms of this Agreement amounts prepaid under Facility B may be
reborrowed. No amount of a Commitment cancelled under this Agreement may
subsequently be reinstated.
8. INTEREST PERIODS
8.1 General
(a) Each Facility A Loan shall have successive Interest Periods.
(b) Each Facility B Loan shall have one Interest Period only.
(c) Any Interest period which would otherwise end during the week preceding, or
extend beyond the Repayment Date shall be of such duration that it shall
end on the Repayment Date.
8.2 Selection
(a) The Borrower may select an Interest Period for a Loan in either the
relevant Request or, if (in the case of a Facility A Loan) the Loan has
been borrowed, a notice received by the Bank not later than 4.00 p.m. on
the Business Day before the commencement of that Interest Period.
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Each Interest Period for a Loan will commence on its Drawdown Date or (in
the case of a Facility A Loan) the expiry of its preceding Interest Period.
(b) Subject to the following provisions of this Clause 8, each Interest Period
will be either an approved duration or an optional duration as so selected
under paragraph (a) above.
In this Clause 8:-
"approved duration" means 1 or 2 weeks or 1, 2, 3 or 6 months; and
"optional duration" means any other period agreed by the Bank.
(c) If the Borrower fails to select an Interest Period for an outstanding
Facility A Loan in accordance with paragraph (a) above, that Interest
Period will, subject to the other provisions of this Clause 8, be one
month.
(d) No Interest Period for a Facility B Loan may extend beyond the Repayment
Date.
8.3 Selection of an optional duration
(a) If the Borrower selects an Interest Period of an optional duration, it may
also select an Interest Period of an approved duration to apply if the
selection of an optional duration becomes ineffective in accordance with
paragraph (b) below.
(b) If:-
(i) the Borrower requests an Interest Period of an optional duration; and
(ii) the Bank notifies the Borrower not later than 10.30 a.m. on the first
Business Day of that Interest Period that matching deposits are not
available to it in the London interbank market to fund the Loan for
that Interest Period,
the Interest Period for that Loan shall be the alternative period so
specified or, in the absence of any alternative selection, one month.
8.4 Non-Business Days
If an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period shall instead end on the next Business Day in
that calendar month (if there is one) or the preceding Business Day (if
there is not).
8.5 Consolidation and splitting
(a) Notwithstanding Clause 8.2 (Selection), the first Interest Period for each
Facility A Loan shall end on the same day as the current Interest Period
for any other Facility A Loan. On the last day of those Interest Periods,
those Loans shall be consolidated and treated as one Loan.
(b) The Borrower may, subject to Clause 2(b), in any notice selecting an
Interest Period for an outstanding Facility A Loan under Clause 8.2
(Selection), direct that the Facility A Loan in question shall, at the
beginning of that Interest Period be divided into (and thereafter be
treated for all purposes under this Agreement as) two Facility A Loans in
such amount each
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being a minimum of (pound)25,000,000 and an integral multiple of
(pound)1,000,000 as the Borrower shall specify and on the first day of the
Interest Period to which that notice relates those Facility A Loans shall
be so divided.
8.6 Other adjustments
The Bank and the Borrower may enter into such other arrangements as they
may agree for the adjustment of Interest Periods and the consolidation
and/or splitting of Loans.
9. INTEREST
9.1 Interest rate
The rate of interest on each Loan for each of its Interest Periods is the
rate per annum determined by the Bank to be the aggregate of the
applicable:-
(a) Margin;
(b) LIBOR; and
(c) MLA Cost.
9.2 Due dates
Except as otherwise provided in this Agreement, accrued interest on each
Loan is payable by the Borrower on the last day of each Interest Period for
that Loan and also, if the Interest Period is longer than 6 months, on the
date falling 6 months after the first day of that Interest Period.
9.3 Default interest
(a) If the Borrower fails to pay any amount payable by it under this Agreement,
it shall forthwith on demand by the Bank pay interest on the overdue amount
from the due date up to the date of actual payment, as well after as before
judgment, at a rate (the "default rate") determined by the Bank to be 1 per
cent. per annum above the rate which would have been payable if the overdue
amount had, during the period of non-payment, constituted a Loan in the
currency of the overdue amount for such successive Interest Periods of such
duration as the Bank may determine (each a "Designated Interest Period").
(b) The default rate will be determined by the Bank on each Business Day or the
first day of, or two Business Days before the first day of, the relevant
Designated Interest Period, as appropriate.
(c) If deposits in the currency of the overdue amount are not at the relevant
time being made available by the Bank to leading banks in the London
interbank market, the default rate will be determined by reference to the
cost of funds to the Bank from whatever sources it may select.
(d) Default interest will be compounded at the end of each Designated Interest
Period.
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10. PAYMENTS
10.1 Place
All payments under this Agreement shall be made to the relevant Party to
its account at such office or bank in the U.K. as it may notify to the
other Party for this purpose.
10.2 Funds
Payments under this Agreement shall be made for value on the due date at
such times and in such funds as the Bank may specify as being customary at
the time for the settlement of transactions in sterling.
10.3 Currency
(a) Amounts payable in respect of costs, expenses and taxes and the like are
payable in the currency in which they are incurred.
(b) Any other amount payable under this Agreement is, except as otherwise
provided in this Agreement, payable in sterling.
10.4 Set-off and counterclaim
All payments made by the Borrower under this Agreement shall be made
without set-off or counterclaim.
10.5 Non-Business Days
(a) If a payment under this Agreement is due on a day which is not a Business
Day, the due date for that payment shall instead be the next Business Day
in the same calendar month (if there is one) or the preceding Business Day
(if there is not).
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on that principal at the rate payable on
the original due date.
11. TAXES
11.1 Gross-up
Subject to Clause 11.4 (Exceptions from gross-up), each payment to be made
by the Borrower under this Agreement shall be made free and clear of and
without deduction or withholding (whether for or on account of tax or
otherwise) unless the Borrower is required by law to make such a payment
subject to such deduction or withholding in respect of any taxes imposed by
laws of the United Kingdom or any federation or association of sovereign
states of which the United Kingdom is a member, in which case the sum
payable by the Borrower in respect of which such deduction or withholding
is required to be made shall (subject as provided in this Clause) be
increased to the extent necessary to ensure that, after the making of such
deduction or withholding, the Bank receives and retains (free from any
liability in respect of any such deduction or withholding) a net sum equal
to the sum which it would have received and so retained had no such
deduction or withholding been made or required to be made.
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11.2 Tax receipts
Within 30 days after paying any sum from which it is required by law to
make any deduction or withholding, the Borrower shall deliver to the Bank
evidence satisfactory to the Bank of that deduction, withholding or payment
and (where remittance is required) of the remittance thereof to the
relevant taxing or other authority (a receipt by the relevant taxing or
other authority being deemed to be such evidence).
11.3 Tax credits
If the Borrower makes a payment under Clause 11.1 (Gross-up) for the
account of the Bank and the Bank determines that it has received or been
granted a credit against or relief or remission for, or repayment of, any
tax paid or payable by it in respect of or calculated with reference to the
deduction or withholding under Clause 11.1 (Gross-up) the Bank shall, to
the extent that it can do so without prejudice to the retention of the
amount of such credit, relief, remission or repayment, pay to the Borrower
such amount as the Bank determines is attributable to such deduction or
withholding under Clause 11.1 (Gross-up) and which will leave the Bank
(after such payment) in no better or worse position than it would have been
in if the Borrower had not been required to make such deduction or
withholding under Clause 11.1 (Gross-up). Nothing in this Clause 11.3 shall
interfere with the right of the Bank to arrange its tax affairs in whatever
manner it thinks fit nor oblige the Bank to disclose any information
relating to its tax affairs or any computations in respect thereof.
11.4 Exceptions from gross-up
(a) If:
(i) the Bank is not or ceases to be a Qualifying Bank; and
(ii) as a result the Borrower is required to deduct or withhold United
Kingdom income tax in respect of payments of interest to be made by
the Borrower to the Bank under this Agreement,
then the Borrower shall not be liable to pay under Clause 11.1 (Gross-up)
in respect of any such payment of interest any amount in excess of the
amount it would have been obliged to pay if the Bank were a Qualifying Bank
provided that this Clause 11.4 shall not apply if, after the date of this
Agreement any change occurs in, or in the official interpretation or
application of, any relevant law or the practice of the United Kingdom
Inland Revenue and as a result thereof the Bank is not or ceases to be a
Qualifying Bank.
(b) The obligation of the Borrower to pay an additional amount under Clause
11.1 (Gross-up) shall not apply to the extent that the tax deducted is tax
on the overall net income of the Bank save to the extent that such tax is
in respect of the relevant payment from which the deduction must be made.
11.5 Notification
If at any time after the date of this Agreement the Bank is aware that it
is not or will cease to be a Qualifying Bank (for whatever reason), it
shall promptly notify the Borrower.
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12. MARKET DISRUPTION
12.1 Market disruption
If, by reason of circumstances affecting the London interbank market
generally, the Bank is unable to make any determination of LIBOR, the Bank
shall promptly notify the Borrower of the fact and that this Clause 12
(Market disruption) is in operation.
12.2 Alternative basis
(a) If a notification under Clause 12.1 (Market disruption) applies to a Loan
which has not been made:
(i) that Loan shall still be made;
(ii) the first Interest Period of that Loan shall be one month; and
(iii) interest in respect of that Loan shall be calculated in accordance
with paragraph (b) below.
(b) If a notification under Clause 12.1 (Market disruption) applies to a Loan
then, notwithstanding any other provision of this Agreement:
(i) within 5 Business Days of receipt of the notification, the Borrower
and the Bank shall enter into negotiations for a period of not more
than 30 days with a view to agreeing an alternative basis for
determining the rate of interest and/or funding applicable to that
Loan and/or any other Loans;
(ii) if no alternative basis is agreed, the Bank shall certify on or before
the last day of the Interest Period to which the notification relates
an alternative basis for maintaining that Loan, which shall be binding
on the Borrower; and
(iii) any such alternative basis may include an alternative method of
fixing the interest rate, alternative Interest Periods or alternative
currencies but it must reflect the cost to the Bank of funding the
Loan from whatever sources it may select plus the Margin plus any MLA
Cost.
(c) The Bank shall consult with the Borrower at least once every 14 days after
the occurrence and during the continuance of the circumstances specified in
the foregoing provisions of this Clause 12 with a view to reverting to the
normal provisions for the determination of the rates of interest applicable
to any Loan under this Agreement.
13. INCREASED COSTS
13.1 Increased costs
(a) Subject to Clause 13.2 (Exceptions), the Borrower shall within 5 Business
Days of a demand by the Bank pay to the Bank the amount of any increased
cost incurred by it as a result of any change in or change in the
interpretation or application of any law or regulation (including any law
or regulation relating to taxation, or reserve asset, special deposit, cash
ratio, liquidity or capital adequacy requirements or any other form of
banking or monetary
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control). Any such demand shall set out in reasonable detail the
calculation and the cause of the amounts claimed and contain confirmation
that the Bank is taking the same approach in relation to the majority of
its other facilities of a similar nature.
(b) In this Agreement "increased cost" means:
(i) an additional cost incurred by the Bank as a result of it having
entered into, or performing, maintaining or funding its obligations
under, this Agreement; or
(ii) that portion of an additional cost incurred by the Bank in making,
funding or maintaining all or any advances comprised in a class of
advances formed by or including the Loans made or to be made under
this Agreement as is attributable to it making, funding or maintaining
the Loans; or
(iii) a reduction in any amount payable to the Bank or the effective return
to the Bank under this Agreement or on its capital; or
(iv) the amount of any payment made by the Bank, or the amount of any
interest or other return foregone by the Bank, calculated by reference
to any amount received or receivable by the Bank under this Agreement.
13.2 Exceptions
Clause 13.1 (Increased costs) does not apply to any increased cost:-
(a) compensated for by the payment of the MLA Cost;
(b) compensated for by the operation of Clause 11 (Taxes) or which would
have been compensated under that Clause but for the operation of
Clause 11.4 (Exceptions from gross-up);
(c) attributable to any change in the rate of tax on the overall net
income of the Bank;
(d) occurring as a result of any negligence or default of the Bank,
including, without limitation, a breach by the Bank of any fiscal,
monetary or capital adequacy limit imposed on it by any law or
regulation; or
(e) any increased cost attributable to any implementation of the proposals
contained in any of:-
(i) the statement of the Basle Committee on Banking Regulations and
Supervisory Practices dated July 1988 and entitled "International
Convergence of Capital Measurement and Capital Standards"; or
(ii) the EC Solvency Ratio Directive, EC Own Funds Directive, or EC
Capital Adequacy Directive or any law, regulation, rule, official
directive, request or guideline (whether or not having the force
of law) of any governmental body, central bank, agency,
department, regulatory, self-regulatory or other authority in any
jurisdiction, implementing, applying or supplementing any of them
with which the Bank complies or is required to comply,
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in each case as published before the date of this Agreement unless it
results from any change in, or change in the interpretation of or
application of, that statement, Directive, law, regulation, rule,
official directive, request or guideline after the date of this
Agreement.
14. ILLEGALITY AND MITIGATION
14.1 Illegality
If it is or becomes unlawful in any jurisdiction for the Bank to give
effect to any of its obligations as contemplated by this Agreement or to
fund or maintain any Loan, then:-
(a) the Bank may notify the Borrower accordingly; and
(b) (i) the Borrower shall forthwith prepay all or part of the Loans to
the extent necessary to avoid the relevant illegality together
with accrued interest on that portion of the Loan; and
(ii) the undrawn Commitments shall be reduced to such amount as would
be lawful or (if no such amount would be lawful) to zero,
in each case, on the last day before the relevant unlawfulness takes
effect.
14.2 Mitigation
If circumstances arise which would, or would on the giving of notice,
result in:-
(a) any additional amounts becoming payable under Clause 11 (Taxes); or
(b) any amount becoming payable under Clause 13 (Increased costs); or
(c) any prepayment, early payment or cancellation under Clause 14.1
(Illegality),
then, without limiting the obligations of the Borrower under this Agreement
and without prejudice to the terms of Clauses 11 (Taxes), 13 (Increased
costs) and 14.1 (Illegality), the Bank shall, in consultation with the
Borrower, take such steps as may be open to it to mitigate or remove such
circumstance, including (without limitation) the transfer of its rights and
obligations under this Agreement to another branch or another bank or
financial institution acceptable to the Borrower, unless to do so would (in
the opinion of the Bank) be prejudicial to it.
15. REPRESENTATIONS AND WARRANTIES
15.1 Representations and warranties
The Borrower makes the representations and warranties set out in this
Clause 15 (Representations and warranties) to the Bank.
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15.2 Status
(a) It is a limited liability company, duly incorporated and validly existing
under the laws of England;
(b) each member of the Group has the power to own its assets and carry on its
business as it is being conducted;
(c) (i) Holdings is the direct, wholly owned, Subsidiary of the Borrower; and
(ii) the Company is the direct, wholly owned, Subsidiary of Holdings; and
(d) the Company has been duly licensed by the Secretary of State under Section
6(I)(c) of the Electricity Act 1989.
15.3 Powers and authority
It has the power to enter into and perform, and has taken all necessary
action to authorise the entry into, performance and delivery of, the
Finance Documents to which it is or will be a party and the transactions
contemplated by those Finance Documents.
15.4 Legal validity
Each Finance Document to which it is or will be a party constitutes, or
when executed in accordance with its terms will constitute, its legal,
valid and binding obligation.
15.5 Non-conflict
The entry into and performance by it of, and the transactions contemplated
by, the Finance Documents do not and will not:-
(a) conflict with the Company's Licence or any law or regulation or
judicial or official order; or
(b) conflict with the constitutional documents of any member of the Group;
or
(c) conflict with any document which is binding upon any member of the
Group or any asset of any member of the Group,
in any such case to an extent or in a manner which would have a material
adverse effect on the ability of the Borrower to perform its payment
obligations under this Agreement or its ability to comply with Clause 16.17
(Financial covenants).
15.6 No default
No Event of Default or Default is outstanding which has not been remedied
or waived or would result from the making of any Loan.
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15.7 Authorisations
All authorisations required in connection with the entry into, performance
and validity of, and the transactions contemplated by, the Finance
Documents have been obtained or effected (as appropriate) and are in full
force and effect.
15.8 Accounts
(a) On and from the date that audited consolidated accounts of the Group are
first delivered to the Bank under Clause 16.2 (Financial information), the
audited consolidated accounts of the Group most recently delivered to the
Bank:-
(i) have been prepared in accordance with accounting principles and
practices generally accepted in the United Kingdom; and
(ii) (in conjunction with the notes thereto) give a true and fair view of
the consolidated financial condition of the Group as at the date to
which they were drawn up; and
(b) except as disclosed to the Bank, there has been no material adverse change
in the Borrower's ability to make payments as they fall due since the date
of the financial projections referred to in Clause 2.1.11 of the Existing
Facility.
15.9 Litigation
Save as disclosed in writing to the Bank prior to the date of this
Agreement no litigation or arbitration is current or, to its knowledge,
pending or has been threatened in writing, which are likely to be
determined adversely to it and, if so determined, might reasonably be
likely to have a material adverse effect on the ability of the Borrower to
perform its payment obligations under this Agreement or on its ability to
comply with Clause 16.17 (Financial covenants).
15.10 Licence
The Licence is in full force and effect, there exist no material breaches
of the terms of the Licence and there are no circumstances in existence
which would be likely to lead the Director General or the Secretary of
State to seek to revoke the Licence except in each case where the relevant
event or circumstances would not have a material adverse effect on the
ability of the Borrower to comply with its payment obligations under this
Agreement or on its ability to comply with Clause 16.17 (Financial
covenants).
15.11 Times for making representations and warranties
The representations and warranties set out in this Clause 15
(Representations and warranties):-
(a) are made on the date of this Agreement; and
(b) (other than the representations in Clauses 15.2(d) (Status), 15.8(b)
(Accounts) and 15.9 (Litigation)) are deemed to be repeated by the
Borrower on the date of each Request and the first day of each
Interest Period with reference to the facts and
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circumstances then existing but as if the words in Clause 15.6 (No
default) "or Default" had been deleted.
16. UNDERTAKINGS
16.1 Duration
The undertakings in this Clause 16 (Undertakings) remain in force from the
date of this Agreement for so long as any amount is or may be outstanding
under this Agreement or any Commitment is in force.
16.2 Financial information
The Borrower shall supply to the Bank:-
(a) as soon as the same are available (and in any event within 180 days of
the end of each of its financial years), the audited consolidated
accounts of the Group for that financial year;
(b) as soon as the same are available (and in any event within 90 days of
the end of the first half-year of each of its financial years), the
unaudited consolidated accounts of the Group for that half-year; and
(c) together with the accounts specified in paragraphs (a) and (b) above,
a certificate signed by two of its directors on its behalf setting out
in reasonable detail computations establishing compliance with Clause
16.17 (Financial covenants),
and all such accounts supplied under paragraphs (a) or (b) above shall be
prepared in accordance with accounting principles generally accepted in
England.
16.3 Information - Miscellaneous
The Borrower shall supply to the Bank:-
(a) all documents despatched by it to its creditors generally or (if it is
not a close company within the meaning of Section 414 of the Income
and Corporation Taxes Act, 1988) to its shareholders generally (or any
class of its shareholders generally) at the same time as they are
despatched; and
(b) promptly upon becoming aware of them, details of any litigation,
arbitration or administrative proceedings which are current,
threatened in writing or pending, and which if they had been current
or threatened in writing on the date of this Agreement would have
resulted in the representation in Clause 15.9 (Litigation) being
incorrect in any material respect.
16.4 Notification of Default
The Borrower shall notify the Bank of any Event of Default (and the steps,
if any, being taken to remedy it) promptly upon its occurrence.
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16.5 Compliance certificates
The Borrower shall supply to the Bank:-
(a) together with the accounts specified in Clause 16.2(a) (Financial
information); and
(b) promptly if the Bank so requests (but no more often than twice in a
calendar year (excluding the certificate under paragraph (a) above)),
a certificate signed by two of its directors on its behalf certifying that
no Default is outstanding or, if a Default is outstanding, specifying the
Default and the steps, if any, being taken to remedy it.
16.6 Authorisations
The Borrower shall:-
(a) use all reasonable endeavours to obtain, maintain and comply in all
material respects with the terms of; and
(b) (if requested) supply certified copies to the Bank of,
any authorisation required under any law or regulation to enable it to
perform its obligations under, or for the validity or admissibility in
evidence of, any Finance Document.
16.7 Pari passu ranking
The Borrower shall procure that its obligations under the Finance Documents
do and will rank at least pari passu with all its other present and future
unsecured obligations, except for taxes, national insurance contributions,
local or water authority rates and employee remuneration and benefits which
are mandatorily preferred by law applying to companies generally or by the
Electricity Act 1989.
16.8 Negative pledge
(a) The Borrower shall not, and shall procure that neither Holdings, the
Company nor any other Principal Subsidiary will, create or permit to
subsist any Security Interest on any of its assets.
(b) (i) The Borrower shall not create or permit to subsist any Security
Interest on any of its shares in or loans to Holdings; and
(ii) the Borrower shall procure that Holdings will not create or permit to
subsist any Security Interest in any of its shares in or loans to the
Company.
(c) Paragraph (a) does not apply to Permitted Security Interests or to Security
Interests arising under the Electricity Act 1989.
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16.9 Transactions similar to security
The Borrower shall not, and shall procure that Holdings will not:-
(a) sell, transfer or otherwise dispose of any of its assets on terms
whereby it is or may be leased to or re-acquired or acquired by a
member of the Group or any of its related entities; or
(b) (except as permitted under Clause 16.10 (Disposals)) sell, transfer or
otherwise dispose of any of its receivables on recourse terms, except
for the discounting of bills or notes in the ordinary course of
trading,
in circumstances where the transaction is entered into primarily as a
method of raising finance or of financing the acquisition of an asset.
16.10 Disposals
(a) The Borrower will not sell, transfer or otherwise dispose of or cease to
exercise direct control over any of its shares in Holdings.
(b) The Borrower will procure that Holdings does not sell, transfer or
otherwise dispose of or cease to exercise direct control over any of the
shares in the Company owned by Holdings.
(c) The Borrower will not, and will procure that Holdings does not dispose of
all or any material part of its assets other than those referred to in
paragraphs (a) and (b) above.
(d) The Borrower shall procure that neither the Company nor any other Principal
Subsidiary (other than Holdings) shall either in a single transaction or in
a series of transactions, whether related or not and whether voluntarily or
involuntarily sell, transfer, grant or lease or otherwise dispose of all or
any substantial part of its assets if the relevant disposal would have a
material adverse effect on the ability of the Borrower to perform its
payment obligations under this Agreement or its ability to comply with
Clause 16.17 (Financial covenants).
Paragraphs (c) and (d) above do not apply to:
(i) sales, conveyances, transfers or other disposals in the ordinary
course of business on arm's length terms or otherwise at market value;
or
(ii) sales, conveyances, transfers or other disposals the aggregate book
value of which is at the time of the final such disposal in any
financial year 7.5% or less of Adjusted Share Capital and Reserves; or
(iii) disposals to another member of the Group; or
(iv) disposals of assets in exchange for other assets similar as to type
and value or where all or a substantial part of the net proceeds of
such disposal are used within 60 days of the disposal (or such longer
period as the Bank may agree) in the acquisition of such assets; or
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(v) disposals of cash raised or borrowed or temporary investments
representing surplus funds; or
(vi) the expenditure of cash in the ordinary course of business including,
without limitation, for the repayment of any debt or the acquisition
of any asset; or
(vii) the payment of any dividend or distribution whatsoever and whether
extraordinary or special in nature or otherwise, in each case, in cash
or in specie; or
(viii) disposals on normal commercial terms of old and/or obsolete plant or
equipment; or
(ix) any distribution of the surplus assets of a Subsidiary (not being a
Principal Subsidiary) in a liquidation or winding up not involving
insolvency; or
(x) any disposal, transfer or distribution arising out of or in connection
with a scheme of arrangement or other reorganisation of the Borrower
and/or any of its Subsidiaries; or
(xi) disposals (with or without recourse) of receivables at arm's length
and on normal commercial terms (or by way of securitisation or
monetisation); or
(xii) the sale at arm's length of any of the shares in Ionica PLC owned by
the Company; or
(xiii) with the prior written consent of the Bank.
16.11 Change of business
Unless the Bank otherwise agrees or the change arises by operation of law,
the Borrower shall not permit the Group as a whole to make any substantial
change in the nature of its business as a distributor and/or supplier of
electricity within its authorised area which would adversely affect the
Borrower's ability to comply with its payment obligations under this
Agreement or its ability to comply with Clause 16.17 (Financial covenants).
16.12 Restriction on Borrowings
None of the Borrower, Holdings and the Company will incur or have
outstanding any Borrowings other than:
(a) under the Finance Documents;
(b) for the purpose of refinancing the Facility in full on the date on
which such Borrowings are first utilised;
(c) for the purpose of refinancing part of the Facility so long as all
utilisations of such Borrowings shall be applied first to repay
outstanding Facility A Loans (and if any portion of the Borrowings
referred to above remains unused after the Facility A Loans have been
repaid or prepaid in full, an amount of the Facility B Commitments
equal to the amount of that portion shall be cancelled);
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(d) in the case of the Company, Borrowings not exceeding, in aggregate
(pound)250,000,000 provided that the documents evidencing such
Borrowings do not contain any prohibition or restriction on the
ability of the Company to pay dividends or make distributions or make
other payments to Holdings;
(e) Borrowings owing to another member of the Group;
(f) Subordinated Debt;
(g) in the case of the Company and its Subsidiaries, Borrowings existing
at the time the Company became a subsidiary of Holdings and any
replacement of such Borrowings in the same or a lower amount;
(h) in the case of the Borrower and its Subsidiaries, Borrowings secured
by Permitted Security Interests;
(i) in the case of the Borrower and its Subsidiaries, Borrowings under any
recourse disposal of receivables;
(j) Project Finance Borrowings;
(k) with the prior written consent of the Bank; or
(l) any other Borrowings in an amount not exceeding (pound)15,000,000.
16.13 Environmental Matters
The Borrower will ensure that each member of the Group will:
(a) obtain all necessary Environmental Licences and comply in all material
respects with (i) the terms and conditions of all Environmental
Licences applicable to it and (ii) all other applicable Environmental
Laws in each case where failure to do so would have a material adverse
effect on the ability of the Borrower to comply with its payment
obligations under this Agreement or its ability to comply with Clause
16.17 (Financial covenants);
(b) promptly upon receipt of the same, notify the Bank of any claim,
notice or other communication served on it in respect of any alleged
breach of or corrective or remedial obligation or liability under any
Environmental Law which would or would be likely to or (in the case of
an alleged breach), if substantiated, would have a material adverse
effect on the ability of the Borrower to comply with its payment
obligations under this Agreement or its ability to comply with Clause
16.17 (Financial covenants).
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16.14 Company distributions etc.
Subject to:
(a) compliance with all applicable laws, directives and consents
(including, without limitation, the Electricity Act, 1989 and the
conditions of the Licence) by the Company or, as the case may be, the
relevant Subsidiary; and
(b) retention of cash by the Company or, as the case may be, the relevant
Subsidiary to meet its projected cash requirements,
the Borrower will procure that the Company does not enter into any
agreement prohibiting it from, and will use all reasonable endeavours to
procure that the Company and/or each other member of the Group does
distribute, lend or otherwise transfer so as to be received directly or
indirectly by the Borrower, such cash from time to time as may be required
from time to time to meet and provide for the Borrower's payment
obligations under the Finance Documents, save to the extent to which funds
for that purpose are provided from another source.
16.15 Clear Market
There will not (without the prior written consent of the Bank (not to be
unreasonably withheld)) be any public or private financing in the domestic
(whether in the United Kingdom or the United States) or international bank
or capital markets for the Borrower or Holdings other than:
(a) an Anticipated Refinancing; or
(b) short term financings entered into in the ordinary course of business
of the Group.
16.16 Licence
(a) To the extent that the Borrower's ability to perform its payment
obligations under this Agreement or its ability to comply with Clause 16.17
(Financial covenants) would otherwise be materially adversely affected, the
Borrower will procure that the Company complies with all terms and
conditions of the Licence and with the requirements of all laws, rules,
regulations, orders and other requirements for the time being of the
Secretary of State and the Director General applicable to the Company with
which it is obliged to comply; and
(b) the Borrower will promptly notify the Bank of any significant amendments to
the Licence occurring after the date of this Agreement.
16.17 Financial covenants
The Borrower shall procure that:
(a) the ratio of Debt to Capitalisation does not at any time exceed 79%;
and
(b) EBITDA of the Group for any Relevant Period shall not be less than
2.00 times Net Interest Payable for that Relevant Period.
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17. DEFAULT
17.1 Events of Default
Each of the events set out in Clauses 17.2 (Non-payment) to 17.14
(Ownership of the Company) (inclusive) is an Event of Default (whether or
not caused by any reason whatsoever outside the control of the Borrower or
any other person).
17.2 Non-payment
The Borrower does not pay any amount payable by it under the Finance
Documents on the due date at the place at and in the currency in which it
is expressed to be payable and, but only if such failure is due solely to
administrative error or technical difficulties, such non payment is not
remedied within 5 Business Days.
17.3 Breach of other obligations
(a) The Borrower does not comply with the provisions of Clause 16.17 (Financial
covenants).
(b) The Borrower does not comply with any provision of the Finance Documents
(other than those referred to in paragraph (a) above or Clause 17.2
(Non-Payment)) and such default, if capable of remedy, is not remedied
within 25 days after the earlier of the date upon which the Borrower became
aware of the same and the date on which the Borrower receives notice from
the Bank requiring remedy.
17.4 Misrepresentation
A representation, warranty or statement made or repeated in or in
connection with any Finance Document or in any document delivered by or on
behalf of the Borrower under or in connection with any Finance Document is
incorrect in any material respect when made or deemed to be made or
repeated.
17.5 Cross-default
(a) Any Borrowings of a member of the Group are not paid when due; or
(b) an event of default howsoever described occurs under any document relating
to Borrowings of a member of the Group and any financier to which those
Borrowings are owed takes any step to improve its commercial position,
whether by charging a fee not provided for in the original document
evidencing those Borrowings, or seeking more onerous provisions in that
document; or
(c) Any Borrowings of a member of the Group become prematurely due and payable
or are placed on demand as a result of an event of default under the
document relating to those Borrowings,
and the aggregate principal amount of Borrowings or amounts referred to in
paragraphs (a) to (c) (inclusive) above exceeds (pound)10,000,000 or its
equivalent in any other currency.
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17.6 Administration
(a) The Borrower or any Principal Subsidiary passes an effective resolution to
present an application for an administration order; or
(b) an application for an administration order in relation to the Borrower or a
Principal Subsidiary is presented to the court unless the application is
being contested in good faith on reasonable grounds by appropriate
proceedings; or
(c) an administration order is made in relation to the Borrower or any
Principal Subsidiary.
17.7 Insolvency
The Borrower or any Principal Subsidiary has any voluntary arrangement
proposed in relation to it under Section 1 of the Insolvency Act 1986, or
enters into any other composition, scheme of arrangement, compromise or
arrangement involving such company and its respective creditors generally
(other than for the purposes of reconstruction or amalgamation or other
similar arrangement).
17.8 Insolvency proceedings
(a) The Borrower or any Principal Subsidiary passes an effective resolution for
its winding up other than a resolution previously approved in writing by
the Bank, such approval not to be unreasonably withheld or delayed; or
(b) a petition for the winding up of the Borrower or any Principal Subsidiary
is presented to the court and either:
(i) such company does not apply to the court within 30 days after the
presentation of such petition requesting the court to refuse such
petition; or
(ii) it does so apply but such petition is not refused by such court within
60 days after such application for the refusal of such petition or any
such company becomes subject to a winding up order,
provided that nothing in this Clause 17.8 shall apply to a solvent
reconstruction, amalgamation or reorganisation of a Principal Subsidiary
or, subject to the prior approval of the Bank (not to be unreasonably
withheld or delayed), the Borrower.
17.9 Appointment of receivers and managers
Any liquidator, trustee in bankruptcy, compulsory manager, receiver,
administrative receiver, administrator or the like is appointed in respect
of the Borrower or any Principal Subsidiary or any material part of its
assets or undertaking or the directors of the Borrower or a Principal
Subsidiary request the appointment of a liquidator, trustee in bankruptcy,
compulsory manager, receiver, administrative receiver, administrator or the
like (other than an appointment to which the Bank has approved pursuant to
Clause 17.8 (Insolvency proceedings)).
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17.10 Unlawfulness
It is or becomes unlawful for the Borrower to perform any of its
obligations under the Finance Documents.
17.11 Licence
(a) Any modification (other than a modification which is of a formal, minor or
technical nature) is made to the terms and conditions of the Company's
Licence and such modification would be expected to have a material adverse
effect on the Borrower's ability to perform its payment obligations under
this Agreement or its ability to comply with Clause 16.17 (Financial
covenants); or
(b) the Company's Licence (excluding any second tier supply licence) is
surrendered by the Company or revoked by the Secretary of State (and not
replaced on substantially similar terms) in accordance with the terms of
the Licence except where such revocation has been agreed between the
Company and the Secretary of State and consented to by the Bank and
provided that the giving of notice pursuant to paragraph 3 of Part 1 of the
Licence shall not be deemed to constitute the revocation of the Licence.
17.12 Pooling and Settlement Agreement
Any notice requiring the Company to cease to be a party to the Pooling and
Settlement Agreement is given to the Company under clause 66.1.3 or 66.2.2
of the Pooling and Settlement Agreement, or the Company otherwise ceases to
be a party to that agreement and the same has a material adverse effect on
the Borrower's ability to comply with its payment obligations under this
Agreement or its ability to comply with Clause 16.17 (Financial covenants).
17.13 Ownership of the Borrower
At least 50% of the ordinary voting shares in the capital of the Borrower
cease to be owned, directly or indirectly, by American Electric Power
Company Inc. or Public Supply Company of Colorado (or their respective
wholly owned Subsidiaries) taken together.
17.14 Ownership of the Company
The Company is not or ceases to be a direct or indirect wholly owned
Subsidiary of the Borrower.
17.15 Acceleration
On and at any time after the occurrence of an Event of Default while the
same is continuing, unremedied or unwaived the Bank may, by notice to the
Borrower:
(a) cancel the Commitment; and/or
(b) demand that all or part of the Loans, together with accrued interest
and all other amounts accrued under this Agreement be immediately due
and payable, whereupon they shall become immediately due and payable;
and/or
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(c) demand that all or part of the Loans be payable on demand, whereupon
they shall immediately become payable on demand.
18. FEES
18.1 Front-end fee
The Borrower shall pay to the Bank a front-end fee in the amount agreed in
the Fee Letter. The front end fee is payable on the Term Date or (if
earlier) the First Drawdown Date under this Agreement.
18.2 Commitment fee
(a) From close of business on the Term Date to and including the Repayment
Date, the Borrower shall pay to the Bank a commitment fee on the undrawn,
uncancelled amount of the Commitments during the Commitment Period computed
at the rates set out below:
(i) for the period from the Term Date to and including the date falling
three months after the date of this Agreement, 0.0625 per cent. per
annum;
(ii) thereafter, to and including the date falling six months after the
date of this Agreement, 0.10 per cent. per annum; and
(iii) thereafter 0.15 per cent. per annum.
(b) Accrued commitment fee is payable quarterly in arrear from the date of this
Agreement and on the earlier of the Repayment Date and the date of
cancellation of the Commitments in full. Accrued commitment fee is also
payable to the Bank on the cancelled amount of the Commitment at the time
the cancellation takes effect.
18.3 VAT
Any fee referred to in this Clause 18 (Fees) is exclusive of any value
added tax or any other tax which might be chargeable in connection with
that fee. If any value added tax or other tax is so chargeable, it shall be
paid by the Borrower at the same time as it pays the relevant fee.
19. EXPENSES
Each Party shall within 30 Business Days of a demand pay to the other (the
"claiming party") the amount of all costs and expenses (including legal
fees) properly incurred by the claiming party in connection with the
enforcement of, or the preservation of any rights under, any Finance
Document.
20. STAMP DUTIES
The Borrower shall within 10 Business Days of a demand pay to the Bank the
amount of any liability it incurs in respect of any United Kingdom stamp,
registration and similar tax which is or becomes payable in connection with
the entry into, performance or enforcement of any Finance Document.
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21. INDEMNITIES
21.1 Currency indemnity
(a) If the Bank receives an amount in respect of the Borrower's liability under
the Finance Documents or if that liability is converted into a claim,
proof, judgment or order in a currency other than the currency (the
"contractual currency") in which the amount is expressed to be payable
under the relevant Finance Document:
(i) the Borrower shall indemnify the Bank as an independent obligation
against any loss or liability arising out of or as a result of the
conversion;
(ii) if the amount received by the Bank, when converted into the
contractual currency at a market rate in the usual course of its
business is less than the amount owed in the contractual currency, the
Borrower shall forthwith on demand pay to the Bank an amount in the
contractual currency equal to the deficit; and
(iii) the Borrower shall pay to the Bank forthwith on demand any exchange
costs and taxes payable in connection with any such conversion.
(b) The Borrower waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency other than that in which
it is expressed to be payable.
21.2 Other indemnities
(a) The Borrower shall within 10 Business Days of a demand pay to the Bank the
amount of any loss or liability which the Bank incurs as a consequence of:
(i) the occurrence of any Default;
(ii) the operation of Clause 17.15 (Acceleration); or
(iii) (other than by reason of negligence or default by the Bank) a Loan
not being made after the Borrower has delivered a Request or a Loan
(or part of a Loan) not being prepaid in accordance with a notice of
prepayment.
The Borrower's liability in each case includes any loss or expense on
account of funds borrowed, contracted for or utilised to fund any amount
payable under any Finance Document, any amount repaid or prepaid or any
Loan but excludes any loss of margin.
(b) If the Bank receives or recovers any payment of principal of a Loan or of
an overdue amount other than on the last day of the Interest Period
relative to that Loan or amount so received or recovered, the Bank shall
calculate the difference between:
(i) the additional interest (excluding the Margin and MLA Costs) which
would have been payable on the principal so received or recovered had
it been received or recovered on the last day of the relevant Interest
Period; and
(ii) the amount of interest which would have been payable to the Bank on
the last day of that Interest Period in respect of the principal so
received or recovered if the principal so received or recovered had
been placed on deposit by the Bank earning
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interest at the Applicable Rate from (and including) the Business Day
of receipt of that amount up to (but excluding) the last day of
applicable Interest Period.
If (i) is greater than (ii) then the Borrower shall, within five Business
Days of a demand from the Bank, pay to the Bank an amount equal to the
difference.
22. EVIDENCE AND CALCULATIONS
22.1 Accounts
Accounts maintained by the Bank in connection with this Agreement are prima
facie evidence of the matters to which they relate.
22.2 Certificates and determinations
Any certification or determination by the Bank of a rate or amount under
this Agreement is prima facie evidence of the matters to which it relates.
22.3 Calculations
Interest (including any applicable MLA Cost) and the fee payable under
Clause 18.2 (Commitment fee) accrue from day to day and are calculated on
the basis of the actual number of days elapsed and a year of 365 days.
23. WAIVERS AND REMEDIES CUMULATIVE
The rights of the Bank under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general law;
and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of
that right.
24. CHANGES TO THE PARTIES
24.1 Transfers by the Borrower
The Borrower may not assign, transfer, novate or dispose of any of, or any
interest in, its rights and/or obligations under this Agreement.
24.2 Transfers by the Bank
(a) The Bank may at any time assign or transfer any of its rights and/or
obligations under this Agreement to another bank or financial institution
(the "New Bank"). The prior consent of the Borrower is required for any
such assignment or transfer and for any sub-participation of the Borrower's
obligations under this Agreement.
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(b) A transfer of obligations will be effective only if the New Bank confirms
to the Borrower that it undertakes to be bound by the terms of this
Agreement as the Bank in form and substance satisfactory to the Borrower.
On the transfer becoming effective in this manner the Bank shall be
relieved of its obligations under this Agreement to the extent that they
are transferred to the New Bank.
(c) Subject to paragraph (a), nothing in this Agreement restricts the ability
of the Bank to sub-contract an obligation if it remains liable under this
Agreement for that obligation.
25. DISCLOSURE OF INFORMATION
Any information supplied to the Bank pursuant to or in connection with this
Agreement shall be held in confidence and shall not be disclosed by it to
any person without the prior written consent of the Borrower except to its
legal or other professional advisers to the extent required for the
purposes of protecting its rights hereunder or by law or regulation or
pursuant to applicable reporting requirements or any order of any court or
to bank supervisory authorities or examining authorities unless it is or
becomes a matter of public knowledge otherwise than as a result of a breach
by it of its obligations hereunder.
26. SET-OFF
The Bank may set off any matured obligation owed by the Borrower under this
Agreement (to the extent beneficially owned by the Bank) against any
matured obligation owed by the Bank to the Borrower, regardless of the
place of payment, booking branch or currency of either obligation. If the
obligations are in different currencies, the Bank may convert either
obligation at a market rate of exchange in its usual course of business for
the purpose of the set-off.
27. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the validity or enforceability in that jurisdiction of any other
provision of the Finance Documents; or
(b) the validity or enforceability in other jurisdictions of that or any
other provision of the Finance Documents.
28. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and this has
the same effect as if the signatures on the counterparts were on a single
copy of this Agreement.
29. NOTICES
29.1 Giving of notices
All notices or other communications under or in connection with this
Agreement shall be given in writing or by telex or facsimile. Any such
notice will be deemed to be given as follows:
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(a) if in writing, when delivered;
(b) if by telex, when despatched, but only if, at the time of
transmission, the correct answerback appears at the start and at the
end of the sender's copy of the notice; and
(c) if by facsimile, when received,
provided that any notice or communication to be made hereunder shall only
be effective when received and then only if the same is expressly marked
for the attention of the department or office identified in Clause 29.2
(Addresses for notices) below.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will only
be deemed to be given on the next working day in that place.
29.2 Addresses for notices
(a) The address, telex number and facsimile number of the Borrower are:
Yorkshire Power Group Limited
Wetherby Road
Scarcroft
Leeds LS14 3HS
Telex: 55128
Facsimile: 0113 289 5682
Telephone: 0113 289 5602
Attention: Nick Dahlgreen
(b) The address, telex number and facsimile number of the Bank are:
Union Bank of Switzerland
PO Box 428
100 Liverpool Street
London EC2M 2RH,
Telex: 941 3848/941 3944 UBSCORG
Facsimile: 0171 901 3703
Telephone: 0171 901 3773/0171 901 1774
Attention: Peter Davis/Paul Saunders
or such other as the Bank may notify to the Borrower by not less than 5
Business Days' notice.
30. GOVERNING LAW
This Agreement is governed by English law.
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This Agreement has been entered into on the date stated at the beginning of this
Agreement.
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SCHEDULE 1
CONDITIONS PRECEDENT DOCUMENTS
1. A copy of the memorandum and articles of association and certificate of
incorporation of the Borrower.
2. A copy of a resolution of the board of directors of the Borrower:
(i) approving the terms of, and the transactions contemplated by, this
Agreement and resolving that it execute this Agreement;
(ii) authorising a specified person or persons to execute this Agreement on
its behalf; and
(iii) authorising a specified person or persons, on its behalf, to sign
and/or despatch all documents and notices to be signed and/or
despatched by it under or in connection with this Agreement.
3. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 2 above.
4. A certificate of a director of the Borrower confirming that the borrowing
of the Commitment in full would not cause any borrowing limit binding on
the Borrower to be exceeded.
5. A certificate of an Authorised Signatory of the Borrower certifying that
each copy document specified in this Schedule 1 is correct, complete and in
full force and effect as at a date no earlier than the date of this
Agreement.
6. A copy of a notice of prepayment in respect of the Existing Facility
addressed to National Westminster Bank Plc as agent under the Existing
Facility.
7. Confirmation from National Westminster Bank Plc that all of the security
constituted by the Debenture executed by the Borrower and Holdings in
favour of the banks party to the Existing Facility will be released
immediately on receipt by National Westminster Bank Plc of repayment of the
outstandings under the Existing Facility in full.
8. A legal opinion of Clifford Chance, legal advisers to the Bank.
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SCHEDULE 2
CALCULATION OF THE MLA COST
(a) The MLA Cost for a Loan for each of its Interest Periods is calculated in
accordance with the following formula:
BY+L(Y-X)+S(Y-Z)
---------------- % per annum = MLA Cost
100-(B+S)
where on the day of application of the formula:
B is the percentage of the Bank's eligible liabilities which the Bank of
England requires the Bank to hold on a non-interest-bearing deposit
account in accordance with its cash ratio requirements;
Y is the rate at which sterling deposits are offered by the Bank to
leading banks in the London interbank market at or about 11.00 a.m. on
that day for the relevant period;
L is the percentage of eligible liabilities which the Bank of England
requires the Bank to maintain as secured money with members of the
London Discount Market Association and/or as secured call money with
certain money brokers and gilt-edged primary market makers;
X is the rate at which secured sterling deposits may be placed by the
Bank with members of the London Discount Market Association and/or as
secured call money with certain money brokers and gilt-edged primary
market makers at or about 11.00 a.m. on that day for the relevant
period;
S is the percentage of the Bank's eligible liabilities which the Bank of
England requires the Bank to place as a special deposit; and
Z is the interest rate per annum allowed by the Bank of England on
special deposits.
(b) For the purposes of this Schedule 3:
(i) "eligible liabilities" and "special deposits" have the meanings given
to them at the time of application of the formula by the Bank of
England; and
(ii) "relevant period" in relation to each Interest Period, means:
(A) if it is 3 months or less, that Interest Period; or
(B) if it is more than 3 months, each successive period of 3 months
and any necessary shorter period comprised in that Interest
Period.
(c) In the application of the formula, B, Y, L, X, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y = 15%, BY
is calculated as 0.5 x 15.
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(d) (i) The formula is applied on the first day of each relevant period
comprised in the relevant Interest Period.
(ii) Each rate calculated in accordance with the formula is, if necessary,
rounded upward to four decimal places.
(e) If the Bank determines that a change in circumstances has rendered, or will
render, the formula inappropriate, the Bank shall notify the Borrower of
the manner in which the MLA Cost will subsequently be calculated which
shall (so far as practicable) leave the Bank and the Borrower in no better
or worse position than they would have been in if the relevant change in
circumstances had not occurred. The manner of calculation so notified by
the Bank shall, in the absence of manifest error, be binding on the
Borrower.
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SCHEDULE 3
FORM OF REQUEST
To: UNION BANK OF SWITZERLAND
From: YORKSHIRE POWER GROUP LIMITED
Date: [_______________]
YORKSHIRE POWER GROUP LIMITED - (pound)1,085,000,000
Credit Agreement dated [___________________________], 1997
1. We wish to borrow a Loan as follows:
(a) Drawdown Date: [_______________]
(b) Facility: [A/B]*
(c) Amount: (pound)[_______________]
(d) First Interest Period: [_______________]/
alternative Interest Period: [_______________]**
(e) Payment Instructions: [_______________].
2. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Request.
By:
YORKSHIRE POWER GROUP LIMITED
Authorised Signatory
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* Delete as appropriate.
** Complete only if the requested Interest Period is of an optional duration.
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SIGNATORIES
Borrower
YORKSHIRE POWER GROUP LIMITED
By: ARMANDO A. PENA RICHARD C. KELLY
Bank
UNION BANK OF SWITZERLAND
By: MICHAEL J. ROWLINSON SEAN MALONE
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