EXHBIIT 10.76
CLIFFORD LIMITED LIABILITY PARTNERSHIP
CHANCE
CONFORMED COPY
DATED 1 OCTOBER 2001
YORKSHIRE ELECTRICITY DISTRIBUTION plc
as Substituted Issuer as of 1 October 2001
- and -
YORKSHIRE ELECTRICITY GROUP PLC
as Former Issuer and Guarantor
- and -
BANKERS TRUSTEE COMPANY LIMITED
as Trustee
THIRD SUPPLEMENTAL TRUST DEED
relating to (pound)200,000,000 9 1/4 per cent.
Bonds due 2020
CONTENTS
Clause Page
1. Definitions And Interpretation.............................................1
2. Representations And Warranties.............................................2
3. Amendments To The Principal Trust Deed.....................................2
4. Substituted Issuer And Guarantor...........................................3
5. Conditions Precedent.......................................................3
6. Costs, Expenses And Indemnification........................................4
7. Further Assurance..........................................................4
8. Counterparts...............................................................4
9. Governing Law And Jurisdiction.............................................5
10. Third Party Rights........................................................5
Schedule 1 AMENDED AND RESTATED TRUST DEED FOR 2020 BONDS.....................6
Schedule 2 LEGAL OPINION AS TO ENGLISH LAW...................................86
Schedule 3 FORM OF DIRECTOR'S CERTIFICATE....................................91
Schedule 4 FORM OF NOTICE TO BONDHOLDERS.....................................92
THIS THIRD SUPPLEMENTAL TRUST DEED is made on 1 October 2001
BETWEEN:
(1) YORKSHIRE ELECTRICITY DISTRIBUTION plc as substituted issuer as of 1
October 2001 (the "Substituted Issuer");
(2) YORKSHIRE ELECTRICITY GROUP plc as former issuer (in such capacity, the
"Former Issuer") and as guarantor (in such capacity, the "Guarantor");
and
(3) BANKERS TRUSTEE COMPANY LIMITED (the "Trustee" which expression where
the context so admits, includes all persons for the time being the
trustee or trustees of this Third Supplemental Trust Deed).
WHEREAS:
(A) The Former Issuer has issued Original Bonds constituted by a trust deed
(the "Principal Trust Deed") dated 17 January 1995 made between the
Former Issuer and the Trustee.
(B) This Third Supplemental Trust Deed is supplemental to the Principal
Trust Deed as modified by a first supplemental trust deed (the "First
Supplemental Trust Deed") dated 27 July 1995 amending the terms of the
Principal Trust Deed for the purposes of issuing further Bonds and for
such purposes the Principal Trust Deed and the First Supplemental Trust
Deed should be read and construed in conjunction as one deed. The
parties to the Principal Trust Deed and the First Supplemental Trust
Deed entered into a Second Supplemental Trust Deed (the "Second
Supplemental Trust Deed") dated 19 September 1996 for the purposes of
making certain amendments to the Principal Trust Deed.
(C) The parties hereto have agreed to amend and restate the Principal Trust
Deed on the terms of this Third Supplemental trust deed (the "Third
Supplemental Trust Deed") Set out in Schedule 1 hereof, (i) so as to
incorporate all the amendments made by the Second Supplemental Trust
Deed, (ii) as a consequence of changes in the UK regulatory regime for
the electricity sector under the Utilities Act 2000, to provide for the
substitution of the Substituted Issuer for the Former Issuer as issuer
and the addition of the Guarantor pursuant to Condition 14 and Clause
20 of the Principal Trust and to make various other amendments (the
"Regulatory Changes") and (iii) to make various miscellaneous
amendments to the Conditions, pursuant to Condition 16(b) and Clause
18(B)(i) of the Principal Trust Deed.
NOW THIS DEED WITNESSETH and it is hereby agreed and declared as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Third Supplemental Trust Deed the following expressions have
the following meanings:
"IFA" means an independent financial advisor, appointed pursuant to an
engagement letter dated 28 September 2001; and
"Completion Date" means 1 October 2001 or such other date as the
Trustee may agree by notice to the other parties hereto.
1.2 Principles of interpretation
In this Third Supplemental Trust Deed:
1.2.1 Clauses and Schedules: any reference to a Schedule or a Clause or
sub-clause is, unless otherwise stated, to a schedule hereto or a
clause or sub-clause hereof respectively; and
1.2.2 Principal Trust Deed: save as herein otherwise provided, all Words and
expressions defined in the Principal Trust Deed shall where the context
so requires and admits have the same meaning in this Third Supplemental
Trust Deed and the principles of interpretation specified in Clause
1(B) of the Principal Trust Deed shall where the context so requires
and admits also apply to this Third Supplemental Trust Deed.
2. REPRESENTATIONS AND WARRANTIES
The Former Issuer, the Substituted Issuer and the Guarantor, represent
and warrant to the Trustee as follows:
2.1 Each of the Former Issuer, the Substituted Issuer and the Guarantor is
duly incorporated under the laws of England and has full power and
capacity to execute and deliver this Third Supplemental Trust Deed and
to undertake and perform the Obligations expressed to be assumed by it
herein and has taken all necessary action to approve and authorise the
same;
2.2.1 All authorisations, consents and approvals required by each of the
Former Issuer, the Substituted Issuer and the Guarantor, for or in
connection with the execution of this Third Supplemental Trust Deed and
the performance by the Former Issuer, the Substituted Issuer and the
Guarantor of the respective obligations expressed to be undertaken by
them herein have been obtained and are in full force and effect;
2.3 No Event of Default, and no condition, event, or act which, with the
lapse of time and/or the giving of a notice and/or the issuing of any
certificate, would be an Event of Default, has occurred or will occur
on the Completion Date.
3. AMENDMENTS TO THE PRINCIPAL TRUST DEED
3.1 The Principal Trust Deed, as supplemented by the Second Supplemental
Trust Deed, with effect from the Completion Date, shall stand amended
and restated in the form set out in Schedule 1.
3.2 The Principal Trust Deed, the Second Supplemental Trust Deed and this
Third Supplemental Trust Deed shall be read and construed as one
document.
3.3 The Trustee agrees, pursuant to Clause 18(b)(i) and Clause 20 of the
Principal Trust Deed, and based, in respect of the amendments
consequent on the Regulatory Changes, on expert advice received from
the IFA, that the amendments made by this Third Supplemental Trust Deed
are not materially prejudicial to the Holders and Couponholders and
concurs with the amendments.
4. SUBSTITUTED ISSUER AND GUARANTOR
4.1 With effect as from the Completion Date, the Substituted Issuer shall
observe and perform the obligations of the Former Issuer as issuer
under the Principal Trust Deed and the Securities (including the
Conditions endorsed thereon) as if it were and had been named as a
party to the Principal Trust Deed and referred to in the Securities in
place of the Former Issuer as issuer.
4.2 With effect as from the Completion Date, all the terms, provisions and
conditions of the Principal Trust Deed and the Securities shall apply
to the Substituted Issuer in all respects as if the Substituted Issuer
had been the Issuer under the Principal Trust Deed and the Securities
in place of the Former Issuer as issuer.
4.3 The Substituted Issuer hereby covenants with the Trustee that as from
the Completion Date it will comply with, perform and observe all the
provisions of the Principal Trust Deed and the Securities which are
expressed to be binding on the Former Issuer as issuer.
4.4 The Guarantor hereby covenants with the Trustee that as from the
Completion Date, in relation to the Securities, it will comply with and
perform and observe all the obligations of the Third Supplemental Trust
Deed and the Securities which are expressed to be binding on the
Guarantor (as that term is defined in the Amended and Restated Trust
Deed in Schedule 1).
5. CONDITIONS PRECEDENT
5.1 Conditions Precedent
5.1.1 This Third Supplemental Trust Deed shall only take effect on the
Completion Date upon the delivery to the Trustee of the following
documents in a form satisfactory to the Trustee:
(a) Legal Opinion: opinion of Allen & Overy as to English law
substantially in the form set out in Schedule 2;
(b) Supplemental Agency Agreement: a duly executed supplemental
agency agreement where the Substituted Issuer agrees to be
bound by the Agency Agreement insofar as it relates to the
Original Bonds as if it had been a party thereto in place of
the Former Issuer and the Guarantor agrees to be bound by the
Agency Agreements insofar as it relates to the Original Bonds;
(c) IFA`s Certificate: a certificate dated on or before the
Completion Date from the IFA;
(d) Directors' Certificate: a certificate from two directors of
the Substituted Issuer substantially in the form set out in
Schedule 3; and
(e) Notice to Bondholders: the notice to Bondholders substantially
in the form set out in Schedule 4 ("Notice to Bondholders").
5.1.2 The Substituted Issuer shall procure the publication of the Notice to
Bondholders in accordance with the Third Supplemental Trust Deed as
soon as practicable after the Completion Date.
5.2 The Trustee may in its discretion waive the delivery, or the form, of
any of the documents referred to in Clause 5.1.1 of this Third
Supplemental Trust Deed or any part of them.
6. COSTS, EXPENSES AND INDEMNIFICATION
6.1 The Substituted Issuer and the Guarantor shall, from time to time on
demand of the Trustee, reimburse the Trustee for all proper costs and
expenses (including legal fees) incurred by it in connection with the
negotiation, preparation and execution or purported execution of this
Third Supplemental Trust Deed and the completion of the matters herein
contemplated.
6.2 The Substituted Issuer and the Guarantor shall jointly and severally
indemnify the Trustee and every attorney, manager, agent, delegate or
other person properly appointed by it hereunder against any and all
losses, liabilities, costs, claims, actions or demands incurred by it
or him or which may be made against it or him as a result of or in
connection with the execution or purported execution of this Third
Supplemental Trust Deed, the substitution of the Issuer, the addition
of the Guarantor and the other amendments hereby effected.
7. FURTHER ASSURANCE
Each of the Former Issuer, the Substituted Issuer and the Guarantor
undertake to the Trustee to execute all such other documents and comply
with all such other requirements to effect the substitution of the
Substituted Issuer for the Former Issuer as issuer in relation to the
Bonds and this Third Supplemental Trust Deed, the giving of the
guarantee by the Guarantor, the other amendments contemplated hereby
and any other matter incidental thereto as the Trustee may direct in
the interests of the Holders.
8. COUNTERPARTS
This Third Supplemental Trust Deed may be executed in counterparts (and
in engrossment, photocopy or facsimile form) and the executed documents
shall, from the date on which all parties hereto have executed a
counterpart hereof, be construed and have effect as though all such
counterparts were one document executed by the parties hereto.
9. GOVERNING LAW AND JURISDICTION
9.1 This Third Supplemental Trust Deed is governed by, and shall be
construed in accordance with, the laws of England.
9.2 Each of the Issuer, the Substituted Issuer and the Guarantor agrees for
the benefit of the Trustee and the Holders that the courts of England
shall have jurisdiction to hear and determine any suit, action or
proceedings, and to settle any disputes, which may arise out of or in
connection with this Third Supplemental Trust Deed or the Securities
(respectively, "Proceedings" and "Disputes") and for such purposes,
irrevocably submits to the jurisdiction of such courts. Each of the
Former Issuer, the Substituted Issuer and the Guarantor irrevocably
waives any objection which it might now or hereafter have to the courts
of England being nominated as the forum to hear and determine any
Proceedings and to settle any Disputes and agrees not to claim that any
such court is not a convenient or appropriate forum. The submission to
the jurisdiction of the courts of England shall not (and shall not be
construed so as to) limit the right of the Trustee or any of the
Holders to take Proceedings in any other court of competent
jurisdiction nor shall the taking of Proceedings in any one or more
jurisdictions preclude the taking of Proceedings in any other
jurisdiction (whether concurrently or not) if and to the extent
permitted by applicable law.
10. THIRD PARTY RIGHTS
A person who is not party to this Third Supplemental Trust Deed may not
enforce any terms of this Third Supplemental Trust Deed under the
Contracts (Rights of Third Parties) Act 1999, but this does not affect
any right or remedy of any third party which exists or is available
apart from that Act.
IN WITNESS WHEREOF this Third Supplemental Trust Deed has been executed as a
deed by the parties hereto and is intended to be and is hereby delivered on the
day first before written.
SCHEDULE 1
AMENDED AND RESTATED TRUST DEED FOR 2020 BONDS
DATED 17TH JANUARY, 1995,
AS AMENDED AND RESTATED ON 1ST OCTOBER, 2001
YORKSHIRE ELECTRICITY DISTRIBUTION PLC
- and -
YORKSHIRE ELECTRICITY GROUP plc
- and -
BANKERS TRUSTEE COMPANY LIMITED
TRUST DEED
constituting
(pound)200,000,000
9 1/4 percent. Guaranteed Bonds
due 2020
(with authority to issue further bonds or notes)
For the Issuer:
Allen & Overy
One New Change
London EC4M 9QQ
For the Trustee:
Clifford Chance
200 Aldersgate Street
London EC1A 7JJ
TABLE OF CONTENTS
Clause Page
1. Definitions .........................................................1
2. Covenant to Repay and to Pay Interest on Original Bonds..............8
3. Form and Issue of Original Bonds and Original Coupons...............11
4. Fees, Duties and Taxes..............................................12
5. Covenant of Compliance..............................................12
6. Cancellation of Securities and Records..............................13
7. Guarantee...........................................................14
8. Enforcement.........................................................16
9. Proceedings, Action and Indemnification.............................16
10. Application of Moneys...............................................16
11. Notice of Payments..................................................17
12. Investment by Trustee...............................................17
13 Partial Payments....................................................18
14 Covenants by the Issuer and the Guarantor...........................18
15 Remuneration and Indemnification of Trustee.........................22
16. Supplement of Trustee Acts..........................................23
17. Trustee's Liability.................................................26
18. Trustee Contracting with Issuer and the Guarantor...................26
19. Waiver, Authorisation and Determination.............................27
20. Holder of Definitive Bearer Security Assumed to be Couponholder.....27
21. Substitution........................................................28
22. Currency Indemnity..................................................29
23. New Trustee.........................................................29
24. Trustee's Retirement and Removal....................................30
25. Trustee's Powers to be Additional...................................30
26. Notices.............................................................31
27. Governing Law.......................................................31
28. Counterparts........................................................31
29. Contracts (Rights of Third Parties) Act 1999........................31
THE FIRST SCHEDULE...........................................................35
THE SECOND SCHEDULE..........................................................50
THE THIRD SCHEDULE...........................................................72
THE FOURTH SCHEDULE..........................................................74
THE FIFTH SCHEDULE...........................................................82
THIS TRUST DEED is made on 17th January, 1995 and amended and restated as of 1st
October, 2001 BETWEEN:
(1) YORKSHIRE ELECTRICITY DISTRIBUTION PLC, a company incorporated under
the laws of England, whose registered office is at Carliol House,
Market Street, Newcastle-upon-Tyne NEl 6NE (the "Issuer");
(2) YORKSHIRE ELECTRICITY GROUP plc, a company incorporated under the laws
of England, whose registered office is at Carliol House, Market Street,
Newcastle-upon-Tyne NEl 6NE ("YEG" or, in its capacity as guarantor,
the "Guarantor"); and
(3) BANKERS TRUSTEE COMPANY LIMITED, a company incorporated under the laws
of England, whose registered office is at Winchester House, 1 Great
Winchester Street, London EC2A 2DB (the "Trustee", which expression
shall, wherever the context so admits, include such company and all
other persons or companies for the time being the trustee or trustees
of these presents) as trustee for the Holders and Couponholders (each
as defined below).
WHEREAS:
(1) On 17th January, 1995 YEG issued(pound)200,000,000 9 1/4 per cent.
Bonds due 2020 (the "Bonds").
(2) The Bonds are constituted by a trust deed dated 17th January, 1995 (the
"Principal Trust Deed") as supplemented by a second supplemental trust
deed dated 19th September, 1996, both made between YEG and the Trustee,
and as further supplemented by a third supplemental trust deed made
between the parties hereto and dated the date of this Trust Deed.
(3) By a resolution of the Board of Directors of the Issuer passed on 28th
September, 2001 the Issuer agreed to become the principal debtor in
respect of the Bonds in substitution for YEG.
(4) By a resolution of the Board of Directors of the Guarantor passed on
4th June, 2001 the Guarantor agreed to guarantee the Bonds and to enter
into certain covenants as set out in this Trust Deed.
(5) The Bonds in definitive form will be either in bearer form with Coupons
attached or in registered form without Coupons but holders of
definitive Bonds in bearer form will have the option to exchange such
Bonds for definitive Bonds in registered form and vice versa, all upon
and subject to the terms and conditions of these presents.
(6) The Trustee has agreed to act as trustee of these presents for the
benefit of the Holders and Couponholders upon and subject to the terms
and conditions of these presents.
1
NOW THIS TRUST DEED WITNESSES AND IT IS AGREED AND DECLARED as follows:
1. DEFINITIONS
(A) In these presents unless there is anything in the subject or context
inconsistent therewith the following expressions shall have the
following meanings:
"Agency Agreement" means, in relation to the Securities of any series,
the agreement appointing the initial Paying Agents and, if applicable,
Registrar and Transfer Agents in relation to such Securities and any
other agreement for the time being in force appointing Successor paying
agents and, if applicable, registrars or transfer agents in relation to
such Securities, or in connection with their duties, the terms of which
have previously been approved in writing by the Trustee, together with
any agreement for the time being in force amending or modifying with
the prior written approval of the Trustee any of the aforesaid
agreements in relation to such Securities;
"Agent Bank" means, in relation to the Securities of any relevant
series, the bank initially appointed as agent bank in relation to such
Securities by the Issuer and the Guarantor pursuant to the relative
Agent Bank Agreement or, if applicable, any Successor agent bank in
relation to such Securities;
"Agent Bank Agreement" means, in relation to the Securities of any
relevant series, the agreement (which may, but need not, be the
relative Agency Agreement) appointing the initial Agent Bank in
relation to such Securities and any other agreement for the time being
in force appointing any Successor agent bank in relation to such
Securities, or in connection with its duties, the terms of which have
previously been approved in writing by the Trustee, together with any
agreement for the time being in force amending or modifying with the
prior written approval of the Trustee any of the aforesaid agreements
in relation to such Securities;
"Appointee" means any attorney, manager, agent, delegate or other
person appointed by the Trustee under these presents;
"Auditors" means the auditors for the time being of the Issuer or of
the Guarantor (as the case may be) or, in the event of their being
unable or unwilling promptly to carry out any action requested of them
pursuant to the provisions of these presents, such other firm of
accountants as may be nominated or approved by the Trustee for the
purposes of these presents after consultation with the Issuer and the
Guarantor where, in the opinion of the Trustee, such consultation is
practicable;
"Bearer Securities" means those of the Securities which are for the
time being in bearer form;
"Capital and Reserves" has the meaning set out in Condition 5;
2
"Clearstream, Luxembourg" means Clearstream Banking, societe anonyme;
"Conditions" means:
(i) in relation to the Original Bonds, the Conditions to be
endorsed on the Original Bonds in definitive form in the form
or substantially in the form set out in the Second Schedule as
the same may from time to time be modified in accordance with
these presents and any reference in these presents to a
particular specified Condition or paragraph of a Condition
shall in relation to the Original Bonds be construed
accordingly; and
(ii) in relation to the Further Securities of any series, the
Conditions to be endorsed on such Further Securities in
definitive form in the form or substantially in the form set
out or referred to in the supplemental Trust Deed relating
thereto as the same may from time to time be modified in
accordance with these presents and any reference in these
presents to a particular specified Condition or paragraph of
a Condition shall in relation to the Further Securities of
any series, unless either referring specifically to a
particular specified Condition or paragraph of a Condition
of such Further Securities or the context otherwise
requires, be construed as a reference to the provisions (if
any) in the Conditions thereof which correspond to the
provisions of the particular specified Condition or
paragraph of a Condition of the Original Bonds;
"Couponholders" means the several persons who are for the time being
holders of the Coupons;
"Coupons" means the bearer interest coupons appertaining to the Bearer
Securities in definitive form or, as the context may require, a
specific number thereof and includes any replacements for Coupons
issued pursuant to Condition 15 and, where the context so permits, the
Talons;
"Distribution Licence" has the meaning set out in Condition 5;
"Distribution Subsidiary" has the meaning set out in Condition 5;
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System;
"Event of Default" means any of the conditions, events or acts provided
in Condition 12 to be events upon the happening of which the Securities
of any series would, subject only to notice by the Trustee as therein
provided, become immediately due and repayable;
"Excluded Subsidiary" has the meaning set out in Condition 5;
"Extraordinary Resolution" has the meaning set out in paragraph 20 of
the Fourth Schedule;
3
"Further Securities" means bonds or notes (whether in bearer or
registered form) of the Issuer constituted by a trust deed supplemental
to this Trust Deed pursuant to Clause 2(D) or the principal amount
thereof for the time being outstanding or as the context may require a
specific number thereof and includes any replacements for Further
Securities issued pursuant to Condition 15 and where applicable any
Global Security issued in respect thereof and, where the context
requires or admits, includes the Receipts issued in respect of any
Further Securities;
"Global Security" means the Original Global Bond and/or any other
global bond or note issued in respect of the Further Securities of any
series and includes any replacements for Global Securities issued
pursuant to Condition 15;
"Holders" means the several persons who are for the time being holders
of the Securities (being, in the case of Bearer Securities, the bearers
thereof and, in the case of Registered Securities, the several persons
whose names are entered in the register of holders of the Registered
Securities as the holders thereof) and the words "holder" and "holders"
and related expressions shall (where appropriate) be construed
accordingly;
"indebtedness for borrowed money" has the meaning set out in Condition
5;
"Liability" means any loss, damage, cost, charge, claim, demand,
expense, judgment, action, proceeding or other liability whatsoever
(including, without limitation, in respect of taxes, duties, levies,
imposts and other charges) and including any value added tax or similar
tax charged or chargeable in respect thereof and legal fees and
expenses on a full indemnity basis;
"London Stock Exchange" means the London Stock Exchange plc or any
successor thereto;
"Original Bearer Bonds" means those of the Original Bonds which are for
the time being in bearer form;
"Original Bondholders" means the several persons who are for the time
being holders of the Original Bonds and, where the context so requires
or admits, shall include the Original Receiptholders;
"Original Bonds" means the bonds (whether in bearer or registered form)
comprising the said (pound)200,000,000 9 1/4 per cent. Guaranteed Bonds
due 2020 hereby constituted or the principal amount thereof for the
time being outstanding or, as the context may require, a specific
number thereof and includes any replacements for Original Bonds issued
pursuant to Condition 15, where the context so requires or admits any
Original Receipts and (except for the purposes of Clause 3) the
Original Global Bond;
"Original Couponholders" means the several persons who are for the time
being holders of the Original Coupons;
4
"Original Coupons" means the Coupons appertaining to the Original
Bearer Bonds;
"Original Global Bond" means the global bond in respect of the Original
Bearer Bonds issued pursuant to Clause 3(A) in the form or
substantially in the form set out in the Part I of the First Schedule;
"Original Receiptholders" means the holders of the Original Receipts;
"Original Receipts" means the Receipts appertaining to the Original
Bonds;
"Original Registered Bonds" means those of the Original Bonds which are
for the time being in registered form;
"Original Talons" means the Talons appertaining to the Original Bearer
Bonds in definitive form;
"outstanding" means in relation to the Securities all the Securities
issued other than:
(a) those Securities which have been redeemed pursuant to these
presents;
(b) those Securities in respect of which the date for redemption
in accordance with the Conditions has occurred and the
redemption moneys (including premium (if any) and all interest
payable thereon) have been duly paid to the Trustee or to the
Principal Paying Agent in the manner provided in the Agency
Agreement (and where appropriate notice to that effect has
been given to the relative Holders in accordance with
Condition 16) and remain available for payment against
presentation of the relevant Securities and/or Coupons;
(c) those Securities which have been purchased and cancelled in
accordance with Condition 8;
(d) those Securities which have become void under Condition 11;
(e) those mutilated or defaced Securities which have been
surrendered and cancelled and in respect of which replacements
have been issued pursuant to Condition 15;
(f) (for the purpose only of ascertaining the principal amount of
the Securities outstanding and without prejudice to the status
for any other purpose of the relevant Securities) those
Securities which are alleged to have been lost, stolen or
destroyed and in respect of which replacements have been
issued pursuant to Condition 15;
(g) any Global Security to the extent that it shall have been
exchanged for another Global Security in respect of the
Securities of the relevant series or for the Securities of the
relevant series in definitive form pursuant to its provisions;
and
5
(h) those Bearer Securities which have been exchanged for
Registered Securities (and, where applicable, vice versa) and
which have been cancelled or, if permitted by the Conditions
of such Securities, are for the time being retained by or on
behalf of the Issuer, in each case pursuant to the provisions
of these presents;
PROVIDED THAT for each of the following purposes, namely:
(i) the right to attend and vote at any meeting of the Holders or
any of them;
(ii) the determination of how many and which Securities are for the
time being outstanding for the purposes of Clause 9(A),
Conditions 12, 13 and 17 and paragraphs 2, 5, 6 and 9 of the
Fourth Schedule;
(iii) any discretion, power or authority (whether contained in these
presents or vested by operation of law) which the Trustee is
required, expressly or impliedly, to exercise in or by
reference to the interests of the Holders or any of them; and
(iv) the determination by the Trustee whether any event,
circumstance, matter or thing is, in its opinion, materially
prejudicial to the interests of the Holders or any of them,
those Securities (if any) which are for the time being held by, for the
benefit of, or on behalf of, the Issuer, the Guarantor or any other
Subsidiary of the Guarantor, any holding company of the Guarantor or
any other Subsidiary of any such holding company shall (unless and
until ceasing to be so held) be deemed not to remain outstanding;
"Participating Securities" means Registered Securities comprised in or,
as the case may be, comprising any series of Securities which are, for
the time being, participating securities pursuant to the Regulations;
"Paying Agents" means, in relation to the Securities of any series, the
several institutions (including where the context permits the Principal
Paying Agent) at their respective specified offices initially appointed
as paying agents in relation to such Securities by the Issuer and the
Guarantor pursuant to the relative Agency Agreement and/or, if
applicable, any Successor paying agents in relation to such Securities;
"Potential Event of Default" means any condition, event or act which,
with the lapse of time and/or the issue, making or giving of any
notice, certification, declaration, demand, determination and/or
request and/or the taking of any similar action and/or the fulfilment
of any similar condition, would constitute an Event of Default;
"Principal Paying Agent" means, in relation to the Securities of any
series, the institution at its specified office initially appointed as
principal paying agent in relation to such Securities by the Issuer and
the Guarantor pursuant to the relative Agency Agreement or, if
applicable, any Successor principal paying agent in relation to such
Securities;
6
"Project Finance Indebtedness" has the meaning set out in Condition 5;
"Receiptholders" means the holders of the Receipts;
"Receipts" means the non-transferable receipts (if any) for Securities
to be issued by Paying Agents to the Holders pursuant to Condition
9(c);
"Redemption Date" means, in relation to Participating Securities, the
due date for the redemption (in whole or in part) of the Participating
Securities;
"Reference Banks" means, in relation to the Securities of any relevant
series, the several banks initially appointed as reference banks in
relation to such Securities by the Issuer and the Guarantor and
referred to in the Conditions of such Securities and/or, if applicable,
any Successor reference banks in relation to such Securities;
"Register" means, in relation to Participating Securities, the register
referred to in Condition 7;
"Registered Securities" means those of the Securities which are for the
time being in registered form;
"Registrar" means, in relation to the Securities of any relevant series
(being, or which are exchangeable for, Registered Securities), the
institution at its specified office initially appointed as registrar in
relation to such Securities by the Issuer and the Guarantor pursuant to
the relative Agency Agreement or, if applicable, any Successor
registrar in relation to such Securities;
"Regulations" means the Uncertificated Securities Regulations 1995 (SI
1995 No. 95/3272) including any modification thereof or any regulations
in substitution thereof made under Section 207 of the Companies Act
1989 and for the time being in force;
"Relevant Date" has the meaning set out in Condition 10;
"Relevant Indebtedness" has the meaning set out in Condition 5;
"repay", "redeem" and "pay" shall each include both the others and
cognate expressions shall be construed accordingly;
"Restructuring Event" has the meaning set out in Condition 9(d)(vi);
"Security Interest" has the meaning set out in Condition 5;
"Securities" means, as the context may require, the Original Bonds
and/or any Further Securities and/or any series thereof;
7
"Subsidiary" has the meaning set out in Condition 5;
"Successor" means, in relation to the Agent Bank, the Principal Paying
Agent, the other Paying Agents, the Reference Banks, the Registrar and
the Transfer Agents, any successor to any one or more of them in
relation to the Securities of the relevant series which shall become
such pursuant to the provisions of these presents, the relative Agent
Bank Agreement and/or the relative Agency Agreement (as the case may
be) and/or such other or further agent bank, principal paying agent,
paying agents, reference banks, registrar and/or transfer agents (as
the case may be) in relation to such Securities as may (with the prior
approval of, and on terms previously approved by, the Trustee in
writing) from time to time be appointed as such, and/or, if applicable,
such other or further specified offices (in the former case being
within the same city as those for which they are substituted) as may
from time to time be nominated, in each case by the Issuer and, if
applicable, the Guarantor, and (except in the case of the initial
appointments and specified offices made under and specified in the
Conditions, the relative Agent Bank Agreement and/or the relative
Agency Agreement, as the case may be) notice of whose appointment or,
as the case may be, nomination has been given to the relevant Holders
pursuant to Clause 14(xiii) in accordance with Condition 16;
"Talons" means the talons appertaining to, and exchangeable in
accordance with the provisions therein contained for further Coupons
appertaining to, the Bearer Securities of any relevant series in
definitive form and includes any replacements for Talons issued
pursuant to Condition 15;
"The Stock Exchange" means, in relation to the Securities of any
relevant series, the stock exchange or exchanges (if any) on which such
Securities are quoted or listed on the issue thereof;
"these presents" means this Trust Deed and the Schedules and any Trust
Deed supplemental hereto and the Schedules (if any) thereto and the
Securities, the Coupons and the Conditions, all as from time to time
modified in accordance with the provisions herein or therein contained;
"Transfer Agents" means, in relation to the Securities of any relevant
series (being, or which are exchangeable for, Registered Securities),
the institutions at their respective specified offices initially
appointed as transfer agents in relation to such Securities by the
Issuer and the Guarantor pursuant to the relative Agency Agreement
and/or, if applicable, any Successor transfer agents in relation to
such Securities;
"Trust Corporation" means a corporation entitled by rules made under
the Public Trustee Act 1906 of Great Britain or entitled pursuant to
any other comparable legislation applicable to a trustee in any other
jurisdiction to carry out the functions of a custodian trustee;
"UK Listing Authority" means the Financial Services Authority in its
capacity as competent authority under the Financial Services Act 1986;
8
words denoting the singular shall include the plural and vice versa;
words denoting one gender only shall include the other genders; and
words denoting persons only shall include firms and corporations and
vice versa.
(B) (i) All references in these presents to principal and/or
premium and/or interest in respect of the Securities or to any
moneys payable by the Issuer and/or the Guarantor under these
presents shall be deemed to include a reference to any
additional amounts which may be payable under Condition 10 or,
if applicable, under any undertaking or covenant given
pursuant to Clause 14(xv) or Clause 21 (A)(2)(ii).
(ii) All references in these presents to principal or principal
amount shall, unless the context otherwise requires, be deemed
to include the Redemption Price (as defined in Condition 8).
(iii) All references in these presents to "pounds", "sterling",
"pounds sterling" or the sign "(pound)" shall be construed as
references to the lawful currency for the time being of the
United Kingdom.
(iv) All references in these presents to any statute or any
provision of any statute shall be deemed also to refer to any
statutory modification or re-enactment thereof or any
statutory instrument, order or regulation made thereunder or
under any such modification or re-enactment.
(v) All references in these presents to guarantees or to an
obligation being guaranteed shall be deemed to include
respectively references to indemnities or to an indemnity
being given in respect thereof.
(vi) All references in these presents to any action, remedy or
method of proceeding for the enforcement of the rights of
creditors shall be deemed to include, in respect of any
jurisdiction other than England, references to such action,
remedy or method of proceeding for the enforcement of the
rights of creditors available or appropriate in such
jurisdiction as shall most nearly approximate to such action,
remedy or method of proceeding described or referred to in
these presents.
(vii) All references in these presents to taking proceedings against
the Issuer or the Guarantor shall be deemed to include
references to proving in the winding up of the Issuer and/or
the Guarantor.
(viii) Wherever in these presents the Issuer or the Guarantor is
required to give an opinion or make any determination, the
Issuer or, as the case may be, the Guarantor shall, in so
doing, be entitled to rely on advice from professional
advisers but so that, as between the Issuer, the Guarantor,
9
the Trustee, the Holders and the Couponholders, the Issuer or,
as the case may be, the Guarantor shall be liable as to the
validity of such opinion or determination.
(ix) Unless the context otherwise requires words or expressions
used in these presents hall bear the same meanings as in the
Companies Act 1985 of Great Britain.
(x) In this Trust Deed references to Schedules, Clauses,
sub-clauses, paragraphs and sub-paragraphs shall be construed
as references to the Schedules to this Trust Deed and to the
Clauses, sub-clauses, paragraphs and sub-paragraphs of this
Trust Deed respectively.
(xi) In these presents, tables of contents and Clause headings are
included for ease of reference and shall not affect the
construction of these presents.
(xii) In these presents, words and expressions defined in the
Regulations and not defined in these presents or in the
Companies Act 1985 of Great Britain shall when used in these
presents have the same meanings as are given to them in the
Regulations.
(xiii) In these presents, references to any Registered Securities
being in uncertificated form or in certificated form are
references to those Registered Securities being an
uncertificated unit or uncertificated units of the relevant
Securities or a certificated unit or certificated units of the
relevant Securities respectively.
(xiv) All references in these presents to Securities being "listed"
or "having a listing" shall, in relation to the London Stock
Exchange, be construed to mean that such Securities have been
admitted to the Official List by the UK Listing Authority and
to trading on the London Stock Exchange's market for listed
securities and all references in these presents to "listing"
or "listed" shall include references to "quotation" and
"quoted", respectively.
(xv) All references in these presents to Euroclear and/or
Clearstream, Luxembourg shall be deemed to include references
to any other clearing system as is approved by the Trustee.
2. COVENANT TO REPAY AND TO PAY INTEREST ON ORIGINAL BONDS
(A) THE aggregate principal amount of the Original Bonds is limited to
(pound)200,000,000.
(B) The Issuer covenants with the Trustee that it will, in
accordance with these presents, on the due date for the final
maturity of the Original Bonds provided for in the Conditions, or on
such earlier date as the same or any part thereof may become
immediately due and repayable thereunder, pay or procure to be paid
unconditionally to or to the order of the Trustee in pounds sterling in
London in immediately available funds the principal amount of the
Original Bonds repayable on that date and shall in the meantime and
until such date (both before and after any judgment or other
order of a court of competent jurisdiction) pay or procure to be paid
10
unconditionally to or to the order of the Trustee as aforesaid
interest (which shall accrue from day to day) on the principal amount
of the Original Bonds at the rate of 9 1/4 per cent. per annum payable
(less tax, if appropriate) annually in arrear on 17th January, the
first such payment to be made on 17th January, 1996 and to amount to a
full year's interest PROVIDED THAT:
(i) every payment of principal or interest in respect of the
Original Bearer Bonds and every payment of principal in
respect of the Original Registered Bonds to or to the account
of the Principal Paying Agent in the manner provided in the
Agency Agreement shall operate in satisfaction pro tanto of
the relative covenant by the Issuer in this Clause except to
the extent that there is default in the subsequent payment
thereof in accordance with the Conditions to the relevant
Original Bondholders or Original Couponholders (as the case
may be);
(ii) every payment of interest in respect of the Original
Registered Bonds to the relevant Original Bondholders as
provided in the Conditions (whether by the Issuer or the
Registrar) shall operate in satisfaction pro tanto of the
relative covenant by the Issuer in this Clause;
(iii) in any case where payment of principal is not made to the
Trustee or the Principal Paying Agent on or before the due
date, interest shall continue to accrue on the principal
amount of the Original Bonds (both before and after any
judgment or other order of a court of competent
jurisdiction) at the rate aforesaid (or, if higher, the rate
of interest on judgment debts for the time being provided by
English law) up to and including the date which the Trustee
determines to be the date on and after which payment is to
be made to the Original Bondholders in respect thereof as
stated in a notice given to the Original Bondholders in
accordance with Condition 16 (such date to be not later than
30 days after the day on which the whole of such
principal amount, together with an amount equal to the
interest which has accrued and is to accrue pursuant to
this proviso up to and including that date, has been
received by the Trustee or the Principal Paying Agent);
(iv) in any case where payment of the whole or any part
of the principal amount of any Original Bond is improperly
withheld or refused upon due presentation thereof (other
than in circumstances contemplated by proviso (iii) above)
interest shall accrue on that principal amount payment of
which has been so withheld or refused (both before and after
any judgment or other order of a court of competent
jurisdiction) at the rate aforesaid (or, if higher, the rate
of interest on judgment debts for the time being provided by
English law) from and including the date of such withholding
or refusal up to and including the date on which, upon
further presentation of the relevant Original Bond, payment
of the full amount (including interest as aforesaid) in
pounds sterling payable in respect of such Original Bond is
made or (if earlier) the seventh day after notice is given
to the relevant Original Bondholder (either individually or
in accordance with Condition 16) that the full amount
(including interest as aforesaid) in pounds sterling payable
in provided that, upon further presentation thereof being
duly made, such payment is made.
11
The Trustee will hold the benefit of this covenant on trust for the Original
Bondholders and the Original Couponholders in accordance with these presents.
TRUSTEE'S REQUIREMENTS REGARDING PAYING AGENTS, REGISTRAR
AND TRANSFER AGENTS
(C) At any time after an Event of Default or a Potential Event of Default
shall have occurred or the Securities shall otherwise have become due
and repayable or the Trustee shall have received any money which it
proposes to pay under Clause 10 to the Holders and/or Couponholders,
the Trustee may:
(i) by notice in writing to the Issuer, the Guarantor, the
Principal Paying Agent, the other Paying Agents, the Registrar
and the Transfer Agents require the Principal Paying Agent,
the other Paying Agents, the Registrar and the Transfer Agents
pursuant to the Agency Agreement:
(a) to act thereafter as Principal Paying Agent, Paying
Agents, Registrar and Transfer Agents respectively of
the Trustee in relation to payments to be made by or on
behalf of the Trustee under the provisions of these
presents mutatis mutandis on the terms provided in the
Agency Agreement (save that the Trustee's liability
under any provisions thereof for the indemnification,
remuneration and payment of out-of-pocket expenses of
the Paying Agents, the Registrar and the Transfer
Agents shall be limited to the amounts for the time
being held by the Trustee on the trusts of these
presents relating to the relative Securities) and
thereafter to hold all Securities and Coupons and all
sums, documents and records held by them in respect of
Securities and Coupons on behalf of the Trustee; or
(b) to deliver up all Securities and Coupons and all sums,
documents and records held by them in respect of
Securities and Coupons to the Trustee or as the Trustee
shall direct in such notice provided that such notice
shall be deemed not to apply to any documents or
records which the relative Paying Agent, the Registrar
or the relative Transfer Agent, as the case may be, is
obliged not to release by any law or regulation; and
(ii) by notice in writing to the Issuer and the Guarantor require
each of them to make all subsequent payments in respect of the
Securities and Coupons to or to the order of the Trustee and
not to the Principal Paying Agent; with effect from the issue
of any such notice to the Issuer and the Guarantor and until
such notice is withdrawn provisos (i) and (ii) to sub-clause
(B) of this Clause relating to the Original Bonds and any
similar provisos relating to any Further Securities shall
cease to have effect.
FURTHER ISSUES
12
(D) (i) The Issuer shall be at liberty from time to time (but
subject always to the provisions of these presents) without
the consent of the Holders or Couponholders to create and
issue further bonds or notes (whether in bearer or registered
form) either (a) ranking pari passu in all respects (or in all
respects save for the first payment of interest thereon), and
so that the same shall be consolidated and form a single
series, with the Original Bonds and/or the Further Securities
of any series or (b) upon such terms as to ranking, interest,
conversion, redemption and otherwise as the Issuer may at the
time of issue thereof determine.
(ii) Any further bonds or notes which are to be created and
issued pursuant to the provisions of paragraph (i) above so
as to form a single series with the Original Bonds and/or
the Further Securities of any series shall be constituted by
a trust deed supplemental to this Trust Deed and any other
further bonds or notes which are to be created and issued
pursuant to the provisions of paragraph (i) above may
(subject to the consent of the Trustee) be constituted by a
trust deed supplemental to this Trust Deed. In any such case
the Issuer and the Guarantor shall prior to the issue of any
further bonds or notes to be so constituted (being Further
Securities) execute and deliver to the Trustee a trust deed
supplemental to this Trust Deed (in relation to which all
applicable stamp duties or other documentation fees, duties
or taxes have been paid and, if applicable, duly stamped or
denoted accordingly) and containing a covenant by the Issuer
in the form mutatis mutandis of Clause 2(B) in relation to
the principal, premium (if any) and interest in respect of
such Further Securities and such other provisions (whether
or not corresponding to any of the provisions contained in
this Trust Deed) as the Trustee shall require.
(iii) A memorandum of every such supplemental Trust Deed shall be
endorsed by the Trustee on this Trust Deed and by the Issuer
and the Guarantor on their duplicates of this Trust Deed.
(iv) Whenever it is proposed to create and issue any Further
Securities the Issuer shall give to the Trustee not less than
14 days' notice in writing of its intention so to do stating
the amount of further bonds or notes proposed to be created
and issued.
(E) Any Further Securities not forming a single series with the Original
Bonds or Further Securities of any series shall form a separate series
and accordingly, unless for any purpose the Trustee in its absolute
discretion shall otherwise determine, the provisions of sub-clause (C)
of this Clause and of Clauses 4 to 22 (both inclusive) and 23(B) and
the Third and Fourth Schedules shall apply mutatis mutandis separately
and independently to each series of the Securities and in such Clauses
and Schedules the expressions "Securities", "Holders", "Coupons",
"Couponholders", "Receipts", "Receiptholders" and "Talons" shall be
construed accordingly.
3. FORM AND ISSUE OF ORIGINAL BONDS AND ORIGINAL COUPONS
(A) THE Original Bearer Bonds were represented initially by the Original
Global Bond which the Issuer issued to a bank depositary common to
both Euroclear and Clearstream, Luxembourg on terms that such
13
depositary held the same for the account of the persons who would
otherwise be entitled to receive the Original Bearer Bonds in
definitive form ("Definitive Original Bearer Bonds") (as notified
to such depositary by UBS Limited on behalf of the managers of the
issue of the Original Bonds) and the successors in title to such
persons as appearing in the records of Euroclear and Clearstream,
Luxembourg for the time being. The Original Global Bond was in
the aggregate principal amount of (pound)187,500,000 and was
exchangeable for Definitive Original Bearer Bonds in accordance with
the provisions of the Original Global Bond.
(B) The Original Global Bond was printed or typed in the form or substan-
tially in the form set out in Part I of the First Schedule. The
Original Global Bond was signed manually by a person duly authorised
by YEG on behalf of YEG and was authenticated by or on behalf of the
Principal Paying Agent. The Original Global Bond so executed and
authenticated shall be a binding and valid obligation of the Issuer.
(C) YEG issued the Definitive Original Bearer Bonds (together with the
unmatured Original Coupons attached) in exchange for the Original
Global Bond in accordance with the provisions thereof.
(D) (i) The Definitive Original Bearer Bonds and the Original
Coupons are to bearer in the respective forms or substantially
in the respective forms set out in Part I of the Second
Schedule to the Principal Trust Deed (subject to sub-clause
3(D)(iii) below) and the Definitive Original Bearer Bonds are
issued in the denominations of (pound)1,000, (pound)10,000 and
(pound)100,000 each (serially numbered) and are endorsed with
the Conditions. Title to the Definitive Original Bearer Bonds
and the Original Coupons shall pass by delivery.
(ii) The Original Registered Bonds are in definitive registered
form, are in the form or substantially in the form set out in
Part II of the Second Schedule to the Principal Trust Deed
(subject to sub-clause 3(D)(iii) below), are in the
denomination and transferable in units of (pound)1 each or
integral multiples thereof and are endorsed with the
Conditions. Title to the Original Registered Bonds shall pass
upon the registration of transfers in respect thereof in
accordance with the provisions of these presents.
14
(iii) Definitive Original Bearer Bonds or Original Registered Bonds
in issue at 1st October, 2001, as well as any Definitive
Original Bearer Bonds or Original Registered Bonds issued in
replacement thereof pursuant to Condition 15, shall be deemed
to be in the form of, and shall bear the rights and
obligations set out in Part II or III, as the case may be, of
the First Schedule and the Conditions set out in the Second
Schedule, notwithstanding that the Definitive Original Bearer
Bonds or Original Registered Bonds may be in the forms of Part
I or Part II, as the case may be, of the Second Schedule to
the Principal Trust Deed and may have endorsed thereon the
Conditions in the form set out in Part III of the Second
Schedule to the Principal Trust Deed.
(E) The Definitive Original Bearer Bonds and the Original Registered Bonds
are signed manually or in facsimile by a Director of the issuer
thereof on its behalf and, in the case of the Definitive Original
Bearer Bonds, shall be authenticated by or on behalf of the Principal
Paying Agent. The issuer may use the facsimile signature of any person
who at the date such signature is affixed is a Director of the issuer
notwithstanding that at the time of issue of any of the Definitive
Original Bearer Bonds or the Original Registered Bonds he may have
ceased for any reason to be the holder of such office. The Definitive
Original Bearer Bonds so executed and authenticated, the Original
Registered Bonds so executed, and the Original Coupons, upon execution
and authentication of the relevant Definitive Original Bearer Bonds,
are binding and valid obligations of the Issuer. The Original Coupons
shall not be signed.
4. FEES, DUTIES AND TAXES
THE Issuer will pay any stamp, issue, registration, documentary and
other fees, duties and taxes, including interest and penalties, payable
on or in connection with (i) the execution and delivery of these
presents, (ii) the constitution and original issue of the Securities
and the Coupons and (iii) any action taken by or on behalf of the
Trustee or (where permitted under these presents so to do) any Holder
or Couponholder to enforce, or to resolve any doubt concerning, or for
any other purpose in relation to, these presents.
5. COVENANT OF COMPLIANCE
EACH of the Issuer and the Guarantor severally covenants with the
Trustee that it will comply with and perform and observe all the
provisions of these presents which are expressed to be binding on it.
The Conditions shall be binding on the Issuer, the Guarantor, the
Holders and the Couponholders. The Trustee shall be entitled to enforce
the obligations of the Issuer and the Guarantor under the Securities
and the Coupons as if the same were set out and contained in the trust
deeds constituting the same, which shall be read and construed as one
document with the Securities and the Coupons.
The Trustee shall hold the benefit of this covenant upon trust for
itself and the Holders and Couponholders according to its and their
respective interests.
6. CANCELLATION OF SECURITIES AND RECORDS
(A) THE Issuer shall procure that all Securities (i) redeemed or (ii)
purchased by or on behalf of the Issuer, the Guarantor or any other
Subsidiary of the Guarantor and surrendered for cancellation or (iii)
which, being mutilated or defaced, have been surrendered and replaced
pursuant to Condition 15 or (iv) exchanged as provided in these
presents (together in each case with all unmatured Coupons attached
thereto or delivered therewith) and all Coupons paid in accordance with
the Conditions or which, being mutilated or defaced, have been
surrendered and replaced pursuant to Condition 15 and all Talons
exchanged in accordance with the Conditions for further Coupons shall
forthwith be cancelled by or on behalf of the Issuer and a certificate
stating:
15
(a) the aggregate principal amount of Securities which have been
redeemed and the aggregate amounts in respect of Coupons which
have been paid;
(b) the serial numbers of such Bearer Securities in definitive
form;
(c) the total numbers (where applicable, of each denomination) by
maturity date of such Coupons;
(d) the aggregate amount of interest paid (and the due dates of
such payments) on Global Securities and/or on Registered
Securities;
(e) the aggregate principal amount of Securities (if any) which
have been purchased by or on behalf of the Issuer, the
Guarantor or any other Subsidiary of the Guarantor and
cancelled and the serial numbers of such Bearer Securities in
definitive form and the total number (where applicable, of
each denomination) by maturity date of the Coupons attached
thereto or surrendered therewith;
(f) the aggregate principal amounts of Securities and the
aggregate amounts in respect of Coupons which have been so
exchanged or surrendered and replaced and the serial numbers
of such Bearer Securities in definitive form and the total
number (where applicable, of each denomination) by maturity
date of such Coupons;
(g) the total number (where applicable, of each denomination) by
maturity date of unmatured Coupons missing from Securities in
definitive form bearing interest at a fixed rate which have
been redeemed or exchanged or surrendered and replaced and the
serial numbers of the Bearer Securities in definitive form to
which such missing unmatured Coupons appertained; and
(h) the total number (where applicable, of each denomination) by
maturity date of Talons which have been exchanged for further
Coupons
shall be given to the Trustee by or on behalf of the Issuer as soon as
possible and in any event within four months after the date of such
redemption, purchase, payment, exchange or replacement (as the case may
be). The Trustee may accept such certificate as conclusive evidence of
redemption, purchase, exchange or replacement pro tanto of the
Securities or payment of interest thereon or exchange of the Talons
respectively and of cancellation of the relative
(B) The Issuer shall procure (i) that the Principal Paying Agent shall
keep a full and complete record of all Securities and Coupons (other
than serial numbers of Coupons) and of their redemption, purchase by
or on behalf of the Issuer, the Guarantor or any other Subsidiary of
the Guarantor, cancellation, payment or exchange (as the case may be)
and of all replacement securities or coupons or talons issued in
substitution for lost, stolen, mutilated, defaced or destroyed
Securities or Coupons (ii) that the Principal Paying Agent shall in
respect of the Coupons of each maturity retain (in the case of Coupons
16
other than Talons) until the expiry of 10 years from the Relevant Date
in respect of such Coupons and (in the case of Talons) indefinitely
either all paid or exchanged Coupons of that maturity or a list of the
serial numbers of Coupons of that maturity still remaining unpaid or
unexchanged and (iii) that such records and Coupons (if any) shall be
made available to the Trustee at all reasonable times.
7. GUARANTEE
(A) THE Guarantor hereby irrevocably and unconditionally guarantees to the
Trustee:
(1) the due and punctual payment in accordance with the provisions
of these presents of the principal of and premium (if any) and
interest on the Securities and of any other amounts payable by
the Issuer under these presents; and
(2) the due and punctual performance and observance by the Issuer
of each of the other provisions of these presents on the
Issuer's part to be performed or observed.
(B) If the Issuer fails for any reason whatsoever punctually to pay any
such principal, premium, interest or other amount, the Guarantor shall
cause each and every such payment to be made as if the Guarantor
instead of the Issuer were expressed to be the primary obligor under
these presents and not merely as surety (but without affecting the
nature of the Issuer's obligations) to the intent that the holder of
the relevant Security or Coupon or the Trustee (as the case may be)
shall receive the same amounts in respect of principal, premium,
interest or such other amount as would have been receivable had such
payments been made by the Issuer.
(C) If any payment received by the Trustee or any Holder or Couponholder
under the provisions of these presents shall (whether on the
subsequent bankruptcy, insolvency or corporate reorganisation of the
Issuer or, without limitation, on any other event) be avoided or set
aside for any reason, such payment shall not be considered as
discharging or diminishing the liability of the Guarantor and this
guarantee shall continue to apply as if such payment had at all times
remained owing by the Issuer and the Guarantor shall indemnify the
Trustee and the Holders and/or Couponholders (as the case may be) in
respect thereof PROVIDED THAT the obligations of the Issuer and/or the
Guarantor under this sub-clause shall, as regards each payment made to
the Trustee or any Holder or Couponholder which is avoided or set
aside, be contingent upon such payment being reimbursed to the Issuer
or other persons entitled through the Issuer.
(D) The Guarantor hereby agrees that its obligations under this Clause
shall be unconditional and that the Guarantor shall be fully liable
irrespective of the validity, regularity, legality or enforceability
against the Issuer of, or of any defence or counter-claim whatsoever
available to the Issuer in relation to, its obligations under these
presents, whether or not any action has been taken to enforce the same
or any judgment obtained against the Issuer, whether or not any of the
17
other provisions of these presents have been modified, whether or not
any time, indulgence, waiver, authorisation or consent has been
granted to the Issuer by or on behalf of the Holders or the
Couponholders or the Trustee, whether or not any determination has
been made by the Trustee pursuant to Clause 19(A), whether or not
there have been any dealings or transactions between the Issuer, any
of the Holders or Couponholders or the Trustee, whether or not the
Issuer has been dissolved, liquidated, merged, consolidated,
bankrupted or has changed its status, functions, control or ownership,
whether or not the Issuer has been prevented from making payment by
foreign exchange provisions applicable at its place of registration or
incorporation and whether or not any other circumstances have occurred
which might otherwise constitute a legal or equitable discharge of or
defence to a guarantor. Accordingly the validity of this guarantee
shall not be affected by reason of any invalidity, irregularity,
illegality or unenforceability of all or any of the obligations of the
Issuer under these presents and this guarantee shall not be discharged
nor shall the liability of the Guarantor under these presents be
affected by any act, thing or omission or means whatever whereby its
liability would not have been discharged if it had been the principal
debtor.
(E) Without prejudice to the provisions of Clause 9(A) the Trustee may
determine from time to time whether or not it will enforce this
guarantee which it may do without making any demand of or taking any
proceedings against the Issuer and may from time to time make any
arrangement or compromise with the Guarantor in relation to this
guarantee which the Trustee may consider expedient in the interests of
the Holders.
(F) The Guarantor waives diligence, presentment, demand of payment, filing
of claims with a court in the event of dissolution, liquidation, merger
or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, protest or notice with respect to these presents or
the indebtedness evidenced thereby and all demands whatsoever and
covenants that this guarantee shall be a continuing guarantee, shall
extend to the ultimate balance of all sums payable and obligations owed
by the Issuer under these presents, shall not be discharged except by
complete performance of the obligations in these presents and is
additional to, and not instead of, any security or other guarantee or
indemnity at any time existing in favour of any person, whether from
the Guarantor or otherwise.
(G) If any moneys shall become payable by the Guarantor under this
guarantee the Guarantor shall not, so long as the same remain unpaid,
without the prior written consent of the Trustee:
(i) in respect of any amounts paid by it under this guarantee,
exercise any rights of subrogation or contribution or, without
limitation, any other right or remedy which may accrue to it
in respect of or as a result of any such payment; or
(ii) in respect of any other moneys for the time being due to the
Guarantor by the Issuer, claim payment thereof or exercise any
other right or remedy;
(including in either case claiming the benefit of any security or right
of set-off or, on the liquidation of the Issuer, proving in competition
with the Trustee). If, notwithstanding the foregoing, upon the
bankruptcy, insolvency or liquidation of the Issuer, any payment or
distribution of assets of the Issuer of any kind or character, whether
in cash, property or securities, shall be received by the Guarantor
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before payment in full of all amounts payable under these presents
shall have been made to the Holders, the Couponholders and the Trustee,
such payment or distribution shall be received by the Guarantor on
trust to pay the same over immediately to the Trustee for application
in or towards the payment of all sums due and unpaid under these
presents in accordance with Clause 10.
(H) Until all amounts which may be or become payable by the Issuer under
these presents have been irrevocably paid in full, the Trustee may:
(i) refrain from applying or enforcing any other moneys, security
or rights held or received by the Trustee in respect of those
amounts, or apply and enforce the same in such manner and
order as it sees fit (whether against those amounts or
otherwise), and the Guarantor shall not be entitled to the
benefit of the same; and
(ii) hold in a suspense account any moneys received from the
Guarantor or on account of the Guarantor's liability under
this guarantee, without liability to pay interest on those
moneys.
(I) The obligations of the Guarantor under these presents constitute
direct, unconditional and (subject to the provisions of Condition 5)
unsecured obligations of the Guarantor and (subject as aforesaid) rank
and will rank pari passu with all other outstanding unsecured and
unsubordinated obligations of the Guarantor, present and future, but,
in the event of insolvency, only to the extent permitted by applicable
laws relating to creditors' rights.
(J) As separate, independent and alternative stipulations, the Guarantor
unconditionally and irrevocably agrees (1) that any sum which,
although expressed to be payable by the Issuer under this Trust Deed,
the Securities or the Coupons, is for any reason (whether or not now
existing and whether or not now known or becoming known to the Issuer,
the Guarantor, the Trustee or any holder or Couponholder) not
recoverable from the Guarantor on the basis of a guarantee will
nevertheless be recoverable from it as if it were the sole principal
debtor and will be paid by it to the Trustee on demand and (2) as a
primary obligation to indemnify the Trustee, each Holder and each
Couponholder against any loss suffered by it as a result of any sum
expressed to be payable by the Issuer under this Trust Deed, the
Securities or the Coupons not being paid on the date and otherwise in
the manner specified in this Trust Deed or any payment obligation of
the Issuer under this Trust Deed, the Securities or the Coupons being
or becoming void, voidable or unenforceable for any reason (whether or
not now existing and whether or not now known or becoming known to the
Trustee, any Holder or any Couponholder), the amount of any such loss
being the amount expressed to be payable by the Issuer in respect of
the relevant sum.
8. ENFORCEMENT
(A) THE Trustee may at any time, at its discretion and without notice, take
such proceedings and/or other action as it may think fit against or in
relation to each of the Issuer and the Guarantor to enforce their
respective obligations under these presents.
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(B) Proof that as regards any specified Security or Coupon the Issuer or
the Guarantor (as the case may be) has made default in paying any
amount due in respect of such Security or Coupon shall (unless the
contrary be proved) be sufficient evidence that the same default has
been made as regards all other Securities or Coupons (as the case may
be) in respect of which the relevant amount is due and payable.
(C) References in the provisions of any trust deed supplemental to this
Trust Deed corresponding to provisos (iii) and (iv) to Clause 2(B) to
"the rate aforesaid" shall, in respect of any Securities bearing
interest at a floating or variable rate, in the event of such
Securities having become due and repayable, with effect from the expiry
of the interest period during which such Securities become due and
repayable, be construed as references to a rate of interest calculated
mutatis mutandis in accordance with the Conditions except that no
notices need be published in respect thereof.
9. PROCEEDINGS, ACTION AND INDEMNIFICATION
(A) THE Trustee shall not be bound to take any proceedings mentioned in
Clause 8(A) or any other action in relation to these presents unless
respectively directed or requested to do so (i) by an Extraordinary
Resolution or (ii) in writing by the holders of at least one-quarter in
principal amount of the Securities then outstanding and in either case
then only if it shall be indemnified to its satisfaction against all
Liabilities to which it may thereby render itself liable or which it
may incur by so doing.
(B) Only the Trustee may enforce the provisions of these presents. No
Holder or Couponholder shall be entitled to proceed directly against
the Issuer or the Guarantor to enforce the performance of any of the
provisions of these presents unless the Trustee having become bound as
aforesaid to take proceedings fails to do so within a reasonable period
and such failure is continuing.
10. APPLICATION OF MONEYS
ALL moneys received by the Trustee under these presents shall, unless
and to the extent attributable in the opinion of the Trustee to a
particular series of the Securities, be apportioned pari passu and
rateably between each series of the Securities, and all moneys received
by the Trustee under these presents to the extent attributable in the
opinion of the Trustee to a particular series of the Securities or
which are apportioned to such series as aforesaid (including any moneys
which represent principal, premium or interest in respect of Securities
or Coupons which have become void under Condition 11) shall be held by
the Trustee upon trust to apply them (subject to Clause 12):
FIRST in payment or satisfaction of all amounts then due and unpaid
under Clauses 15 and/or 16(J) to the Trustee and/or any Appointee;
SECONDLY in or towards payment pari passu and rateably of all
principal, premium (if any) and interest then due and unpaid in respect
of the Securities of that series;
20
THIRDLY in or towards payment pari passu and rateably of all principal,
premium (if any) and interest then due and unpaid in respect of the
Securities of each other series; and
FOURTHLY in payment of the balance (if any) to the Issuer (without
prejudice to, or liability in respect of, any question as to how such
payment to the Issuer shall be dealt with as between the Issuer, the
Guarantor and any other person).
Without prejudice to this Clause 10, if the Trustee holds any moneys
which represent principal, premium (if any) and interest in respect of
the Securities which have become void or in respect of which claims
have been prescribed under Condition 11, the Trustee will hold such
moneys on the above trusts.
11. NOTICE OF PAYMENTS
THE Trustee shall give notice to the relevant Holders in accordance
with Condition 16 of the day fixed for any payment to them under Clause
10. Such payment may be made in accordance with Condition 6 and any
payment so made shall be a good discharge to the Trustee.
12. INVESTMENT BY TRUSTEE
(A) IF the amount of the moneys at any time available for the payment of
principal, premium (if any) and interest in respect of the Securities
under Clause 10 shall be less than 10 per cent. of the principal amount
of the Securities then outstanding the Trustee may at its discretion
invest such moneys in some or one of the investments authorised below.
The Trustee at its discretion may vary such investments and may
accumulate such investments and the resulting income until the
accumulations, together with any other funds for the time being under
the control of the Trustee and available for such purpose, amount to at
least 10 per cent. of the principal amount of the Securities then
outstanding and then such accumulations and funds shall be applied
under Clause 10.
(B) Any moneys which under the trusts of these presents ought to or may be
invested by the Trustee may be invested in the name or under the
control of the Trustee in any investments or other assets in any part
of the world whether or not they produce income or by placing the same
on deposit in the name or under the control of the Trustee at such
bank or other financial institution and in such currency as the
Trustee may think fit. If such bank or financial institution is the
Trustee or a subsidiary, holding or associated company of the Trustee
it need only account for an amount of interest equal to the largest
amount of interest payable by it on such a deposit to an independent
customer. The Trustee may at any time vary any such investments for or
into other investments or convert any moneys so deposited into any
other currency and shall not be responsible for any loss resulting
from any such investments or deposits, whether due to depreciation in
value, fluctuations in exchange rates or otherwise.
13. PARTIAL PAYMENTS
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UPON any payment under Clause 10 (other than payment in full against
surrender of a Security or Coupon) the Security or Coupon in respect of
which such payment is made shall be produced to the Trustee or the
Paying Agent by or through whom such payment is made and the Trustee
shall or shall cause such Paying Agent to enface thereon a memorandum
of the amount and the date of payment but the Trustee may in any
particular case or generally in relation to Registered Securities
dispense with such production and enfacement upon such indemnity being
given as it shall think sufficient.
14. COVENANTS BY THE ISSUER AND THE GUARANTOR
SO long as any of the Securities remains outstanding (or, in the case
of paragraphs (viii), (ix), (xiii) to (xvi) inclusive and (xviii), so
long as any of the Securities or Coupons remains liable to
prescription) each of the Issuer and the Guarantor severally covenants
with the Trustee that it shall:
(i) at all times carry on and conduct its affairs and procure its
Subsidiaries to carry on and conduct their respective affairs
in a proper and efficient manner;
(ii) give or procure to be given to the Trustee such opinions,
certificates, information and evidence as it shall properly
require and in such form as it shall properly require
(including without limitation the procurement by the Issuer
and/or the Guarantor of all such certificates called for by
the Trustee pursuant to Clause 16(C)) for the purpose of the
proper discharge or exercise of the duties, trusts, powers,
authorities and discretions vested in it under these presents
or by operation of law;
(iii) cause to be prepared and certified by the Auditors in respect
of each financial accounting period accounts in such form as
will comply with all relevant legal and accounting
requirements and all applicable requirements for the time
being of The Stock Exchange;
(iv) at all times keep and procure its Subsidiaries to keep proper
books of account and following the occurrence of an Event of
Default or a Potential Event of Default or if the Trustee has
grounds to believe that an Event of Default or a Potential
Event of Default has occurred or is likely to occur allow and
procure its Subsidiaries to allow the Trustee and any person
appointed by the Trustee to whom the Issuer, the Guarantor or
the relevant Subsidiary (as the case may be) shall have no
reasonable objection free access to such books of account at
all reasonable times during normal business hours;
(v) send to the Trustee (in addition to any copies to which it may
be entitled as a holder of any securities of the Issuer or the
Guarantor) two copies in English of every balance sheet,
profit and loss account, report, circular and notice of
general meeting and every other document issued or sent to its
shareholders together with any of the foregoing, and every
document issued or sent to holders of securities other than
22
its shareholders (including the Holders) as soon as reasonably
practicable after the issue or publication thereof
(vi) forthwith give notice in writing to the Trustee of the coming
into existence of any Security Interest which would require
any security to be given to any series of the Securities
pursuant to Condition 5 or of the occurrence of any Event of
Default or any Potential Event of Default or any Restructuring
Event;
(vii) give to the Trustee (a) within seven days after demand by
the Trustee therefore and (b) (without the necessity for
any such demand) promptly after the publication of its audited
accounts in respect of each financial period commencing
with the financial period ending 31st March, 1995 and in
any event not later than 180 days after the end of each
such financial period a certificate of the Issuer signed
by two Directors of the Issuer and two Directors of the
Guarantor to the effect that as at a date not more than seven
days before delivering such certificate (the "relevant
date") there did not exist and had not existed since the
relevant date of the previous certificate any Event of
Default or any Potential Event of Default or any
Restructuring Event (or if such exists or existed specifying
the same) and that during the period from and including the
relevant date of the last such certificate to and including
the relevant date of such certificate each of the Issuer and
the Guarantor has complied with all its obligations
contained in these presents or (if such is not the case)
specifying the respects in which it has not complied;
(viii) at all times execute and do all such further documents, acts
and things as may be necessary at any time or times in the
opinion of the Trustee to give effect to these presents;
(ix) at all times maintain an Agent Bank, Reference Banks, Paying
Agents, a Registrar and Transfer Agents in accordance with the
Conditions;
(x) procure the Principal Paying Agent to notify the Trustee
forthwith in the event that it does not, on or before the due
date for any payment in respect of the Securities or any of
them or any of the Coupons, receive unconditionally pursuant
to the Agency Agreement payment of the full amount in the
requisite currency of the moneys payable on such due date on
all such Securities or Coupons as the case may be;
(xi) in the event of the unconditional payment to the Principal
Paying Agent of any sum due in respect of the Securities or
any of them or any of the Coupons being made after the due
date for payment thereof forthwith give or procure to be given
notice to the relevant Holders in accordance with Condition 16
that such payment has been made;
(xii) use all reasonable endeavours to maintain the listing of the
Securities on The Stock Exchange or, if it is unable to do so
having used all reasonable endeavours, use all reasonable
endeavours to obtain and maintain a quotation or listing of
23
the Securities on such other stock exchange or exchanges or
securities market or markets as the Issuer may (with the prior
written approval of the Trustee) decide and shall also upon
obtaining a quotation or listing of the Securities on such
other stock exchange or exchanges or securities market or
markets enter into a trust deed supplemental to this Trust
Deed to effect such consequential amendments to these presents
as the Trustee may require or as shall be requisite to comply
with the requirements of any such stock exchange or securities
market;
(xiii) give notice to the Holders in accordance with Condition 16
of any appointment, resignation or removal of any Agent
Bank, Reference Bank, Paying Agent, Registrar or Transfer
Agent (other than the appointment of the initial Agent Bank,
Reference Banks, Paying Agents, Registrar and Transfer
Agents) after having obtained the prior written approval of
the Trustee thereto or any change of any Paying Agent's,
Registrar's or Transfer Agent's specified office and
(except as provided by the Agent Bank Agreement or the
Agency Agreement or the Conditions) at least 30 days prior to
such event taking effect; PROVIDED ALWAYS THAT so long as
any of the Securities remains outstanding in the case of
the termination of the appointment of the Agent Bank,
the Registrar or a Transfer Agent or so long as any of the
Securities or Coupons remains liable to prescription in
the case of the termination of the appointment of the
Principal Paying Agent no such termination shall take
effect until a new Agent Bank, Registrar, Transfer Agent
or Principal Paying Agent (as the case may be) has been
appointed on terms previously approved in writing by the
Trustee;
(xiv) obtain the prior written approval of the Trustee to, and
promptly give to the Trustee two copies of, the form of every
notice given to the Holders in accordance with Condition 16
(such approval, unless so expressed, not to constitute
approval for the purposes of Section 57 of the Financial
Services Act 1986 of the United Kingdom of any such notice
which is an investment advertisement (as therein defined));
(xv) if payments of principal, premium or interest in
respect of the Securities or the Coupons by the Issuer or
the Guarantor shall become subject generally to the taxing
jurisdiction of any territory or any political sub-division
thereof or any authority therein or thereof having power to
tax other than or in addition to the United Kingdom or any
such political sub-division thereof or any such authority
therein or thereof, as soon as reasonably practicable after
having become aware thereof notify the Trustee of such event
and (unless the Trustee otherwise agrees) enter forthwith
into a trust deed supplemental to this Trust Deed, giving to
the Trustee an undertaking or covenant in form and manner
satisfactory to the Trustee in terms corresponding to the
terms of Condition 10 with the substitution for (or, as the
case may be, the addition to) the references therein to the
United Kingdom or any political sub-division thereof or any
authority therein or thereof having power to tax of
references to that other or additional territory or any
political sub-division thereof or any authority therein or
thereof having power to tax to whose taxing jurisdiction
such payments shall have become subject as aforesaid such
24
trust deed also (where applicable) to modify Condition 8(c)
so that such Condition shall make reference to the other or
additional territory, any political sub-division thereof and
any authority therein or thereof having power to tax;
(xvi) comply with and perform all its obligations under the Agent
Bank Agreement and the Agency Agreement and use all reasonable
endeavours to procure that the Agent Bank, the Paying Agents,
the Registrar and the Transfer Agents comply with and perform
all their respective obligations thereunder and (in the case
of the Paying Agents) any notice given by the Trustee pursuant
to Clause 2(C)(i) and not make any amendment or modification
to either of such agreements without the prior written
approval of the Trustee;
(xvii) in order to enable the Trustee to ascertain the principal
amount of Securities of each series for the time being
outstanding for any of the purposes referred to in the proviso
to the definition of "outstanding" in Clause 1, deliver to the
Trustee forthwith upon being so requested in writing by the
Trustee a certificate in writing signed by two Directors of
the Issuer or of the Guarantor (as appropriate) setting out
the total number and aggregate principal amount of Securities
of each series which:
(a) up to and including the date of such certificate have
been purchased by the Issuer, the Guarantor or any
other Subsidiary of the Guarantor and cancelled; and
(b) are at the date of such certificate held by, for the
benefit of, or on behalf of, the Issuer, the
Guarantor, any other Subsidiary of the Guarantor, any
holding company of the Guarantor or any other
Subsidiary of any such holding company;
(xviii) procure its Subsidiaries to comply with all (if any)
applicable provisions of Condition 8(d);
(xix) procure that each of the Paying Agents makes available for
inspection by Holders and Couponholders at its specified
office copies of these presents, the Agency Agreement, the
Agent Bank Agreement and the then latest audited balance sheet
and profit and loss account (consolidated if applicable) of
the Issuer and of the Guarantor;
(xx) if, in accordance with the provisions of the Conditions,
interest in respect of Bearer Securities denominated in U.S.
dollars becomes payable at the specified office of any Paying
Agent in the United States of America promptly give notice
thereof to the Holders in accordance with Condition 16;
(xxiii) upon due surrender in accordance with the Conditions, pay the
face value of all Coupons (including Coupons issued in
exchange for Talons) appertaining to all Securities purchased
by the Issuer or the Guarantor or any other Subsidiary of the
Guarantor;
25
(xxiv) give to the Trustee a certificate of the Auditors of the
Guarantor:
(a) specifying the amount of the Capital and Reserves for
the purposes of Condition 5, such certificate to be
provided before the Issuer, the Guarantor or any
Distribution Subsidiary creates or has outstanding a
Security Interest in respect of any Relevant
Indebtedness and/or guarantees within Condition 5;
(b) specifying that a Subsidiary of the Guarantor
satisfies the provisions of Condition 5(D)(i) and
(ii), such certificate to be provided before or at
the same time as any written notice given to the
Trustee by the Guarantor under Condition 5(D)(iii)
that a Subsidiary of the Guarantor is an Excluded
Subsidiary; and
(c) specifying the amount of the Capital and Reserves for
the purposes of Condition 12(c) (and, for the
avoidance of doubt, using the definition of "Capital
and Reserves" as set out in Condition 12(c)), such
certificate to be provided within 10 days of any
request by the Trustee for its provision;
(xxv) give to the Trustee a certificate of two Directors of the
Issuer or of the Guarantor (as appropriate):
(a) specifying the aggregate amount of any Relevant
Indebtedness of the Issuer, the Guarantor or any
Distribution Subsidiary or guaranteed by the Issuer,
the Guarantor or any Distribution Subsidiary and in
respect of which a Security Interest or Security
Interests has or have been created or is or are
outstanding, such certificate to be provided before
the Issuer, the Guarantor or any Distribution
Subsidiary creates or has outstanding any new
Security Interest;
(b) specifying details of any modification to the terms
and conditions of the Distribution Licence, such
certificate to be provided promptly upon any such
modification being made; and
(c) specifying any higher figure determined by the Gas
and Electricity Markets Authority as is mentioned in
Condition 12, such certificate to be provided within
5 days of the Gas and Electricity Markets Authority
determining such figure by notice in writing to the
Secretary of State for Trade and Industry; and
(xxvi) give notice to the Trustee as soon as practicable after its
Directors or the Directors of any Distribution Subsidiary have
resolved to give any Security Interest in respect of any
Relevant Indebtedness or guarantee as described in Condition
5.
15. REMUNERATION AND INDEMNIFICATION OF TRUSTEE
26
(A) THE Issuer shall pay to the Trustee remuneration for its services
as trustee as from the date of this Trust Deed, such remuneration to
be at such rate as may from time to time be agreed between the Issuer
and the Trustee. Such remuneration shall be payable in advance on 17th
January in each year. Upon the issue of any Further Securities the
rate of remuneration in force immediately prior thereto shall be
increased by such amount as shall be agreed between the Issuer and the
Trustee, such increased remuneration to be calculated from such date
as shall be agreed as aforesaid. The rate of remuneration in force
from time to time may upon the final redemption of the whole of the
Securities of any series be reduced by such amount as shall be agreed
between the Issuer and the Trustee, such reduced remuneration to be
calculated from such date as shall be agreed as aforesaid. Such
remuneration shall accrue from day to day and be payable (in priority
to payments to the Holders and Couponholders) up to and including the
date when, all the Securities having become due for redemption, the
redemption moneys and interest thereon to the date of redemption have
been paid to the Principal Paying Agent or the Trustee PROVIDED THAT
if upon due presentation of any Security or Coupon or any cheque
payment of the moneys due in respect thereof is improperly withheld or
refused, remuneration will commence again to accrue.
(B) In the event of the occurrence of an Event of Default or a Potential
Event of Default or the Trustee considering it expedient or necessary
or being requested by the Issuer or the Guarantor to undertake duties
which the Trustee and the Issuer or, as the case may be, the Guarantor
agree to be of an exceptional nature or otherwise outside the scope of
the normal duties of the Trustee under these presents the Issuer shall
pay to the Trustee such additional remuneration as shall be agreed
between them.
(C) The Issuer shall in addition pay to the Trustee an amount equal to the
amount of any value added tax or similar tax chargeable in respect of
its remuneration under these presents.
(D) In the event of the Trustee and the Issuer or, as the case may be, the
Guarantor failing to agree:
(1) (in a case to which sub-clause (A) above applies) upon the
amount of the remuneration; or
(2) (in a case to which sub-clause (B) above applies) upon whether
such duties shall be of an exceptional nature or otherwise
outside the scope of the. normal duties of the Trustee under
these presents, or upon such additional remuneration, such
matters shall be determined by a merchant bank (acting as an
expert and not as an arbitrator) selected by the Trustee and
approved by the Issuer or, failing such approval, nominated
(on the application of the Trustee) by the President for the
time being of The Law Society of England and Wales (the
expenses involved in such nomination and the fees of such
merchant bank being payable by the Issuer) and the
determination of any such merchant bank shall be final and
binding upon the Trustee, the Issuer and the Guarantor.
27
(E) The Issuer shall also pay or discharge all Liabilities incurred by the
Trustee in relation to the preparation and execution of, the exercise
of its powers and the performance of its duties under, and in any other
manner in relation to, these presents, including but not limited to
travelling expenses and any stamp, issue, registration, documentary and
other taxes or duties paid or payable by the Trustee in connection with
any action taken or contemplated by or on behalf of the Trustee for
enforcing, or resolving any doubt concerning, or for any other purpose
in relation to, these presents.
(F) All amounts payable pursuant to sub-clause (E) above and/or Clause
16(J) shall be payable by the Issuer on the date specified in a demand
by the Trustee and in the case of payments actually made by the Trustee
prior to such demand shall (if not paid within three days after such
demand and the Trustee so requires) carry interest at the rate of two
per cent. per annum above the Base Rate from time to time of National
Westminster Bank Plc from the date specified in such demand, and in all
other cases shall (if not paid on the date specified in such demand or,
if later, within three days after such demand and, in either case, the
Trustee so requires) carry interest at such rate from the date
specified in such demand. All remuneration payable to the Trustee shall
carry interest at such rate from the due date therefor.
(G) Unless otherwise specifically stated in any discharge of these presents
the provisions of this Clause and Clause 16(J) shall continue in full
force and effect notwithstanding such discharge.
(H) The Trustee shall be entitled in its absolute discretion to determine
in respect of which series of Securities any Liabilities incurred under
these presents have been incurred or to allocate any such Liabilities
between the Original Bonds and any Further Securities of any series.
16. SUPPLEMENT TO TRUSTEE ACTS
THE Trustee shall have all the powers conferred upon trustees by the Trustee Act
1925 and the Trustee Act 2000 of England and Wales (together the "Trustee Acts")
and by way of supplement thereto it is expressly declared as follows:
(A) The Trustee may in relation to these presents act on the advice or
opinion of or any information obtained from any lawyer, valuer,
accountant, surveyor, banker, broker, auctioneer or other expert
whether obtained by the Issuer, the Guarantor, the Trustee or otherwise
and shall not be responsible for any Liability occasioned by so acting.
(B) Any such advice, opinion or information may be sent or obtained by
letter, telex, telegram, facsimile transmission or cable and the
Trustee shall not be liable for acting on any advice, opinion or
information purporting to be conveyed by any such letter, telex,
telegram, facsimile transmission or cable although the same shall
contain some error or shall not be authentic.
28
(C) The Trustee may call for and shall be at liberty to accept as
sufficient evidence of any fact or matter or the expediency of any
transaction or thing a certificate signed by any two Directors of the
Issuer and/or by any two Directors of the Guarantor and the Trustee
shall not be bound in any such case to call for further evidence or be
responsible for any Liability that may be occasioned by it or any other
person acting on such certificate.
(D) The Trustee may appoint and pay any person to act as a custodian or
nominee on any terms in relation to such assets of the trust as the
Trustee may determine, including for the purpose of depositing with a
custodian these presents or any document relating thereto and the
Trustee shall not be responsible for any loss, liability, expense,
demand, cost, claim or proceedings incurred by reason of the
misconduct, omission or default on the part of any person appointed by
it hereunder or to be bound to supervise the proceedings or acts of any
such person; the Trustee is not obliged to appoint a custodian if the
Trustee invests in securities payable to the bearer.
(E) The Trustee shall not be responsible for the receipt or application of
the proceeds of the issue of any of the Securities by the Issuer, the
exchange of any Global Security for another Global Security or
definitive Securities or the delivery of any Global Security or
definitive Securities to the person(s) entitled to it or them.
(F) The Trustee shall not be bound to give notice to any person of the
execution of any documents comprised or referred to in these presents
or to take any steps to ascertain whether any Event of Default,
Potential Event of Default, Negative Rating Event, any Restructuring
Event or any event which could lead to the occurrence of or could
constitute a Restructuring Event has occurred and, until it shall have
actual knowledge or express notice pursuant to these presents to the
contrary, the Trustee shall be entitled to assume that no Event of
Default, Potential Event of Default, Negative Rating Event, any
Restructuring Event or any other such event has occurred and that each
of the Issuer and the Guarantor is observing and performing all its
obligations under these presents.
(G) Save as expressly otherwise provided in these presents, the Trustee
shall have absolute and uncontrolled discretion as to the exercise of
its trusts, powers, authorities and discretions under these presents
(the exercise of which as between the Trustee and the Holders and
Couponholders shall be conclusive and binding on the Holders and
Couponholders) and shall not be responsible for any Liability which may
result from their exercise or non-exercise.
(H) The Trustee shall not be liable to any person by reason of having acted
upon any resolution purporting to have been passed at any meeting of
the Holders of Securities of all or any series in respect whereof
minutes have been made and signed even though subsequent to its acting
it may be found that there was some defect in the constitution of the
meeting or the passing of the resolution or that for any reason the
resolution was not valid or binding upon such Holders and the relative
Couponholders.
29
(I) The Trustee shall not be liable to any person by reason of having
accepted as valid or not having rejected any Security or Coupon
purporting to be such and subsequently found to be forged or not
authentic.
(J) Without prejudice to the right of indemnity by law given to trustees,
each of the Issuer and the Guarantor shall severally indemnify the
Trustee and every Appointee and keep it or him indemnified against all
Liabilities to which it or he may be or become subject or which may be
incurred by it or him in the execution or purported execution of any of
its trusts, powers, authorities and discretions under these presents or
its or his functions under any such appointment or in respect of any
other matter or thing done or omitted in any way relating to these
presents or any such appointment.
(K) Any consent or approval given by the Trustee for the purposes of these
presents may be given on such terms and subject to such conditions (if
any) as the Trustee thinks fit and notwithstanding anything to the
contrary in these presents may be given retrospectively.
(L) The Trustee shall not (unless and to the extent ordered so to do by a
court of competent jurisdiction) be required to disclose to any Holder
or Couponholder any information (including, without limitation,
information of a confidential, financial or price sensitive nature)
made available to the Trustee by the Issuer or the Guarantor or any
other person in connection with these presents and no Holder or
Couponholder shall be entitled to take any action to obtain from the
Trustee any such information.
(M) Where it is necessary or desirable for any purpose in connection with
these presents to convert any sum from one currency to another it shall
(unless otherwise provided by these presents or required by law) be
converted at such rate or rates, in accordance with such method and as
at such date for the determination of such rate of exchange, as may be
agreed by the Trustee in consultation with the Issuer or the Guarantor
as relevant and any rate, method and date so agreed shall be binding on
the Issuer, the Guarantor, the Holders and the Couponholders.
(N) The Trustee may certify whether or not any of the conditions, events
and acts set out in sub-paragraphs (b), (c), (e), (f) and (g) of
Condition 12 (each of which conditions, events and acts shall, unless
in any case the Trustee in its absolute discretion shall otherwise
determine, for all the purposes of these presents be deemed to include
the circumstances resulting therein and the consequences resulting
therefrom) is in its opinion materially prejudicial to the interests of
the Holders and any such certificate shall be conclusive and binding
upon the Issuer, the Guarantor, the Holders and the Couponholders.
(O) The Trustee as between itself and the Holders and Couponholders may
determine all questions and doubts arising in relation to any of the
provisions of these presents. Every such determination, whether or not
relating in whole or in part to the acts or proceedings of the Trustee,
shall be conclusive and shall bind the Trustee and the Holders and
Couponholders.
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(P) In connection with the exercise by it of any of its trusts,
powers, authorities and discretions under these presents (including,
without limitation, any modification, waiver, authorisation,
determination or substitution), the Trustee shall have regard to the
interests of the Holders as a class and, in particular but without
limitation, shall not have regard to the consequences of such exercise
for individual Holders or Couponholders resulting from their being for
any purpose domiciled or resident in, or otherwise connected with, or
subject to the jurisdiction of, any particular territory or any
political sub-division thereof and the Trustee shall not be entitled
to require, nor shall any Holder or Couponholder be entitled to claim,
from the Issuer, the Guarantor, the Trustee or any other person any
indemnification or payment in respect of any tax consequence of any
such exercise upon individual Holders or Couponholders except to the
extent already provided for in Condition 10 and/or any undertaking
given in addition thereto or in substitution therefor under these
presents.
(Q) Any trustee of these presents being a lawyer, accountant, broker or
other person engaged in any profession or business shall be entitled to
charge and be paid all usual professional and other charges for
business transacted and acts done by him or his firm in connection with
the trusts of these presents and also his reasonable charges in
addition to disbursements for all other work and business done and all
time spent by him or his firm in connection with matters arising in
connection with these presents.
(R) The Trustee may whenever it thinks fit delegate by power of attorney
or otherwise to any person or persons or fluctuating body of persons
(whether being a joint trustee of these presents or not) all or any of
its trusts, powers, authorities and discretions under these presents.
Such delegation may be made upon such terms (including power to
sub-delegate) and subject to such conditions and regulations as the
Trustee may in the interests of the Holders think fit. The Trustee
shall not be under any obligation to supervise the proceedings or acts
of any such delegate or sub-delegate or be in any way responsible for
any Liability incurred by reason of any misconduct or default on the
part of any such delegate or sub-delegate. The Trustee shall within a
reasonable time after any such delegation or any renewal, extension or
termination thereof give notice thereof to the Issuer.
(S) The Trustee may in the conduct of the trusts of these presents instead
of acting personally employ and pay an agent on any terms (whether
being a lawyer or other professional person) to transact or conduct, or
concur in transacting or conducting, any business and to do, or concur
in doing, all acts required to be done in connection with these
presents (including the receipt and payment of money). The Trustee
shall not be in any way responsible for any Liability incurred by
reason of any misconduct or default on the part of any such agent or be
bound to supervise the proceedings or acts of any such agent.
(T) The Trustee shall not be responsible for the execution, delivery,
legality, effectiveness, adequacy, genuineness, validity,
enforceability or admissibility in evidence of these presents or any
other document relating thereto and shall not be liable for any failure
to obtain any licence, consent or other authority for the execution,
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delivery, legality, effectiveness, adequacy, genuineness, validity,
performance, enforceability or admissibility in evidence of these
presents or any other document relating thereto.
(U) Section 1 of the Trustee Act 2000 shall not apply to the duties of the
Trustee in relation to the trusts constituted by these presents. Where
there are any inconsistencies between the Trustee Acts and these
presents, this Trust Deed shall, to the extent allowed by law, prevail
and, in the case of any such inconsistency with the Trustee Act 2000,
these presents shall constitute a restriction or exclusion for the
purposes of the Trustee Act 2000.
17. TRUSTEE'S LIABILITY
NOTHING in these presents shall in any case in which the Trustee has failed to
show the degree of care and diligence required of it as trustee having regard to
the provisions of these presents conferring on it any trusts, powers,
authorities or discretions exempt the Trustee from or indemnify it against any
liability for breach of trust or any Liability which by virtue of any rule of
law would otherwise attach to it in respect of any negligence, default, breach
of duty or breach of trust of which it may be guilty in relation to its duties
under these presents.
18. TRUSTEE CONTRACTING WITH ISSUER AND THE GUARANTOR
NEITHER the Trustee nor any director or officer of a corporation acting as a
trustee under these presents shall by reason of its or his fiduciary position be
in any way precluded from:
(i) entering into or being interested in any contract or financial or
other transaction or arrangement with the Issuer or the Guarantor
or any person or body corporate associated with the Issuer or the
Guarantor (including without limitation any contract, transaction
or arrangement of a banking or insurance nature or any contract,
transaction or arrangement in relation to the making of loans or
the provision of financial facilities to, or the purchase,
placing or underwriting of or the subscribing or procuring
subscriptions for or otherwise acquiring, holding or dealing with
the Securities or any other bonds, notes, stocks, shares,
debenture stock, debentures or other securities of, the Issuer or
the Guarantor or any person or body corporate associated as
aforesaid); or
(ii) accepting or holding the trusteeship of any other trust deed
constituting or securing any other securities issued by or
relating to the Issuer or the Guarantor or any such person or
body corporate so associated or any other office of profit under
the Issuer or the Guarantor or any such person or body corporate
so associated and shall be entitled to retain and shall not be in
any way liable to account for any profit made or share of
brokerage or commission or remuneration or other benefit received
thereby or in connection therewith.
19. WAIVER, AUTHORISATION AND DETERMINATION
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(A) THE Trustee may without prejudice to its rights in respect of any
subsequent breach, Event of Default or Potential Event of Default
from time to time and at any time but only if and in so far as in
its opinion the interests of the Holders shall not be materially
prejudiced thereby waive or authorise any breach or proposed
breach by the Issuer or the Guarantor of any of the covenants or
provisions contained in these presents or determine that any
Event of Default or Potential Event of Default shall not be
treated as such for the purposes of these presents PROVIDED
ALWAYS THAT the Trustee shall not exercise any powers conferred
on it by this Clause in contravention of any express direction
given by Extraordinary Resolution or by a request under Condition
12 but so that no such direction or request shall affect any
waiver, authorisation or determination previously given or made.
Any such waiver, authorisation or determination may be given or
made on such terms and subject to such conditions (if any) as the
Trustee may determine, shall be binding on the Holders and the
Couponholders and, if, but only if, the Trustee shall so require,
shall be notified by the Issuer to the Holders in accordance with
Condition 16 as soon as practicable thereafter.
MODIFICATION
(B) The Trustee may without the consent of the Holders or
Couponholders at any time and from time to time concur with the
Issuer and the Guarantor in making any modification (i) to these
presents (other than the proviso to paragraph 5 of the Fourth
Schedule or any of the matters referred to in that proviso) which
in the opinion of the Trustee it may be proper to make PROVIDED
THAT the Trustee is of the opinion that such modification will
not be materially prejudicial to the interests of the Holders or
(ii) to these presents if in the opinion of the Trustee such
modification is of a formal, minor or technical nature or to
correct a manifest error. Any such modification may be made on
such terms and subject to such conditions (if any) as the Trustee
may determine, shall be binding upon the Holders and the
Couponholders and, unless the Trustee agrees otherwise, shall be
notified by the Issuer to the Holders in accordance with
Condition 16 as soon as practicable thereafter.
20. HOLDER OF DEFINITIVE BEARER SECURITY ASSUMED TO BE COUPONHOLDER
(A) WHEREVER in these presents the Trustee is required or entitled to
exercise a power, trust, authority or discretion under these
presents, except as ordered by a court of competent jurisdiction
or as required by applicable law, the Trustee shall,
notwithstanding that it may have express notice to the contrary,
assume that each Holder is the holder of all Coupons appertaining
to each Bearer Security in definitive form of which he is the
holder.
NO NOTICE TO COUPONHOLDERS
(B) Neither the Trustee nor the Issuer nor the Guarantor shall be
required to give any notice to the Couponholders for any purpose
under these presents and the Couponholders shall be deemed for
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all purposes to have notice of the contents of any notice given
to the Holders in accordance with Condition 16.
ENTITLEMENT TO TREAT HOLDER AS ABSOLUTE OWNER
(C) The Issuer, the Guarantor, the Trustee, the Paying Agents, the
Registrar and the Transfer Agents may (to the fullest extent
permitted by applicable laws) deem and treat the holder of any
Security and the holder of any Coupon as the absolute owner of
such Security or Coupon, as the case may be, for all purposes
(whether or not such Security or Coupon shall be overdue and
notwithstanding any notice of ownership thereof, any notice of
loss or theft thereof or any writing thereon), and the Issuer,
the Guarantor, the Trustee, the Paying Agents, the Registrar and
the Transfer Agents shall not be affected by any notice to the
contrary. All payments made to any such holder shall be valid
and, to the extent of the sums so paid, effective to satisfy and
discharge the liability for the moneys payable in respect of such
Security or Coupon, as the case may be.
21. SUBSTITUTION
(A) (1) The Trustee may without the consent of the Holders or
Couponholders at any time agree with the Issuer and the Guarantor
to the substitution in place of the Issuer or the Guarantor (or,
in either case, of any previous substitute under this Clause) as
the principal debtor under, or, as the case may be, guarantor in
respect of, these presents of any Subsidiary of the Issuer,
including a Relevant Subsidiary (as defined in Condition
9(d)(vi)), or the Guarantor (such substituted company being
hereinafter called the "New Company") provided that a trust deed
is executed or some other form of undertaking is given by the New
Company in form and manner satisfactory to the Trustee, agreeing
to be bound by the provisions of these presents with any
consequential amendments which the Trustee may deem appropriate
as fully as if the New Company had been named in these presents
as the principal debtor in place of the Issuer or as the
guarantor in place of the Guarantor (or, in either case, of the
previous substitute under this Clause) and provided further that
the Issuer or the Guarantor unconditionally and irrevocably
guarantee all amounts payable under these presents, except where
(a) the Issuer has transferred the Distribution Licence to the
New Company, in which only the Guarantor may act as guarantor or
(b) the New Company is the Guarantor, in which case no guarantee
shall be necessary.
(2) The following further conditions shall apply to sub-clause (A)(1)
above:
(i) the Issuer, the Guarantor and the New Company shall comply
with such other requirements as the Trustee may direct in
the interests of the Holders;
(ii) where the New Company is incorporated, domiciled or resident
in, or subject generally to the taxing jurisdiction of, a
territory other than or in addition to the United Kingdom or
any political sub-division thereof or any authority therein
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or thereof having power to tax, undertakings or covenants
shall be given by the New Company in terms corresponding to
the provisions of Condition 10 with the substitution for
(or, as the case may be, the addition to) the references to
the United Kingdom of references to that other or additional
territory in which the New Company is incorporated,
domiciled or resident or to whose taxing jurisdiction it is
subject and (where applicable) Condition 8(c) shall be
modified accordingly;
(iii) without prejudice to the rights of reliance of the Trustee
under the immediately following paragraph (iv), the Trustee
is satisfied that the relevant transaction is not materially
prejudicial to the interests of the Holders; and
(iv) if two Directors of the New Company (or other officers
acceptable to the Trustee) shall certify that the New
Company is solvent at the time at which the relevant
transaction is proposed to be effected (which certificate
the Trustee may rely upon absolutely) the Trustee shall not
be under any duty to have regard to the financial condition,
profits or prospects of the New Company or to compare the
same with those of the Issuer or the previous substitute
under this Clause as applicable.
(B) Any such trust deed or undertaking shall, if so expressed, operate to
release the Issuer, the Guarantor or the previous substitute as aforesaid
from all of its obligations under these presents. Not later than 14 days
after the execution of such documents and compliance with such
requirements, the New Company shall give notice thereof in a form
previously approved by the Trustee to the Holders in the manner provided in
Condition 16. Upon the execution of such documents and compliance with such
requirements, the New Company shall be deemed to be named in these presents
as the principal debtor in place of the Issuer or as the guarantor in place
of the Guarantor (or, in either case, in place of the previous substitute
under this Clause) under these presents and these presents shall be deemed
to be amended in such manner as shall be necessary to give effect to the
above provisions and, without limitation, references in these presents to
the Issuer and/or the Guarantor (as the case may be) shall, where the
context so requires, be deemed to be or include references to the New
Company.
22. CURRENCY INDEMNITY
EACH of the Issuer and the Guarantor shall severally indemnify the Trustee,
every Appointee, the Holders and the Couponholders and keep them
indemnified against:
(a) any Liability incurred by any of them arising from the non-payment by
the Issuer or the Guarantor of any amount due to the Trustee or the
Holders or Couponholders under these presents by reason of any
variation in the rates of exchange between those used for the purposes
35
of calculating the amount due under a judgment or order in respect
thereof and those prevailing at the date of actual payment by the
Issuer or the Guarantor; and
(b) any deficiency arising or resulting from any variation in rates of
exchange between (i) the date as of which the local currency
equivalent of the amounts due or contingently due under these presents
(other than this Clause) is calculated for the purposes of any
bankruptcy, insolvency or liquidation of the Issuer or the Guarantor
and (ii) the final date for ascertaining the amount of claims in such
bankruptcy, insolvency or liquidation. The amount of such deficiency
shall be deemed not to be reduced by any variation in rates of
exchange occurring between the said final date and the date of any
distribution of assets in connection with any such bankruptcy,
insolvency or liquidation.
The above indemnities shall constitute obligations of the Issuer and the
Guarantor separate and independent from their obligations under the other
provisions of these presents and shall apply irrespective of any indulgence
granted by the Trustee or the Holders or the Couponholders from time to
time and shall continue in full force and effect notwithstanding the
judgment or filing of any proof or proofs in any bankruptcy, insolvency or
liquidation of the Issuer or the Guarantor for a liquidated sum or sums in
respect of amounts due under these presents (other than this Clause). Any
such deficiency as aforesaid shall be deemed to constitute a loss suffered
by the Holders and Couponholders and no proof or evidence of any actual
loss shall be required by the Issuer or the Guarantor or their liquidator
or liquidators.
23. NEW TRUSTEE
(A) THE power to appoint a new trustee of these presents shall be vested in the
Issuer but no person shall be appointed who shall not previously have been
approved by an Extraordinary Resolution. One or more persons may hold
office as trustee or trustees of these presents but such trustee or
trustees shall be or include a Trust Corporation. Whenever there shall be
more than two trustees of these presents the majority of such trustees
shall be competent to execute and exercise all the duties, powers, trusts,
authorities and discretions vested in the Trustee by these presents
provided that a Trust Corporation shall be included in such majority. Any
appointment of a new trustee of these presents shall as soon as practicable
thereafter be notified by the Issuer to the Principal Paying Agent, the
Registrar, the Transfer Agents and the Holders.
SEPARATE AND CO-TRUSTEES
(B) Notwithstanding the provisions of sub-clause (A) above, the Trustee may,
upon giving prior notice to the Issuer and the Guarantor (but without the
consent of the Issuer, the Guarantor, the Holders or the Couponholders),
appoint any person established or resident in any jurisdiction (whether a
Trust Corporation or not) to act either as a separate trustee or as a
co-trustee jointly with the Trustee:
(i) if the Trustee considers such appointment to be in the interests of
the Holders;
36
(ii) for the purposes of conforming to any legal requirements, restrictions
or conditions in any jurisdiction in which any particular act or acts
is or are to be performed; or
(iii) for the purposes of obtaining a judgment in any jurisdiction or the
enforcement in any jurisdiction of either a judgment already obtained
or any of the provisions of these presents against the Issuer and/or
the Guarantor.
Each of the Issuer and the Guarantor irrevocably appoints the Trustee to be
its attorney in its name and on its behalf to execute any such instrument
of appointment. Such a person shall (subject always to the provisions of
these presents) have such trusts, powers, authorities and discretions (not
exceeding those conferred on the Trustee by these presents) and such duties
and obligations as shall be conferred or imposed by the instrument of
appointment. The Trustee shall have power in like manner to remove any such
person. Such reasonable remuneration as the Trustee may pay to any such
person, together with any attributable Liabilities incurred by it in
performing its function as such separate trustee or co-trustee, shall for
the purposes of these presents be treated as Liabilities incurred by the
Trustee.
24. TRUSTEE'S RETIREMENT AND REMOVAL
A trustee of these presents may retire at any time on giving not less than
three months' prior written notice to the Issuer and the Guarantor without
giving any reason and without being responsible for any Liabilities
incurred by reason of such retirement. The Holders may by
Extraordinary Resolution remove any trustee or trustees for the time being
of these presents. The Issuer and the Guarantor undertake that in the event
of the only trustee of these presents which is a Trust Corporation giving
notice under this Clause or being removed by Extraordinary Resolution they
will use their best endeavours to procure that a new trustee of these
presents being a Trust Corporation is appointed as soon as reasonably
practicable thereafter. The retirement or removal of any such trustee shall
not become effective until a successor trustee being a Trust Corporation is
appointed and if, in such circumstances no such appointment has become
effective within two months of such notice of retirement or Extraordinary
Resolution, the Trustee shall (with prior written consent of the Issuer and
the Guarantor, such consent not to be unreasonably withheld) be entitled to
appoint a trust corporation as Trustee and shall notify the Issuer and the
Guarantor of such appointment.
25. TRUSTEE'S POWERS TO BE ADDITIONAL
THE powers conferred upon the Trustee by these presents shall be in
addition to any powers which may from time to time be vested in the Trustee
by the general law or as a holder of any of the Securities or Coupons.
26. NOTICES
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ANY notice or demand to the Issuer and the Guarantor or the Trustee to be
given, made or served for any purposes under these presents shall be given,
made or served by sending the same by pre-paid post (first class if inland,
first class airmail if overseas), telex or facsimile transmission or by
delivering it by hand as follows:
to the Issuer
or the Guarantor: Carliol House
Market Street
Newcastle-upon-Tyne
NEl 6NE5DS
Attention: Company Secretary
Fax No. 0191 2102037
to the Trustee: Winchester House
1 Great Winchester Street
London EC2N 2DB
Attention: Managing Director
Fax No. 020 7547 6149
or to such other address, telex or facsimile number as shall have been
notified (in accordance with this Clause) to the other parties hereto and
any notice or demand sent by post as aforesaid shall be deemed to have been
given, made or served three days in the case of inland post or seven days
in the case of overseas post after despatch and any notice or demand sent
by telex or facsimile transmission as aforesaid shall be deemed to have
been given, made or served 24 hours after the time of despatch provided
that in the case of a notice or demand given by telex or facsimile
transmission such notice or demand shall forthwith be confirmed by post.
The failure of the addressee to receive such confirmation shall not
invalidate the relevant notice or demand given by telex or facsimile
transmission.
27. GOVERNING LAW
THESE presents are governed by, and shall be construed in accordance with,
English law.
28. COUNTERPARTS
THIS Trust Deed and any trust deed supplemental hereto may be executed and
delivered in any number of counterparts, all of which, taken together,
shall constitute one and the same deed and any party to this Trust Deed or
any trust deed supplemental hereto may enter into the same by executing and
delivering a counterpart.
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29. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to these presents has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of these
presents, but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
IN WITNESS whereof this Trust Deed has been executed as a deed by the Issuer,
the Guarantor and the Trustee and delivered on the date first stated above.
39
THE FIRST SCHEDULE
Part I
- FORM OF ORIGINAL GLOBAL BOND -
YORKSHIRE ELECTRICITY GROUP plc
(Incorporated in England with limited liability under the Companies
Act 1985 with registered number 2366995)
TEMPORARY GLOBAL BOND
Representing
(pound)[ ] in principal amount of an issue of
(pound)200,000,000 9 1/4 PER CENT. BONDS
DUE 2020
This Bond is a temporary Global Bond without interest coupons in respect of
(pound)[ ] in principal amount of a duly authorised issue of Bonds of Yorkshire
Electricity Group plc (the "Issuer"), designated as specified in the title
hereof (the "Bonds"), limited to the aggregate principal amount of Two Hundred
Million Pounds Sterling ((pound)200,000,000) and constituted by a Trust Deed
dated 17th January, 1995 (the "Trust Deed") between the Issuer and Bankers
Trustee Company Limited as trustee (the trustee for the time being thereof being
herein called the "Trustee"). References herein to the Conditions (or to any
particular numbered Condition) shall be to the Conditions (or that particular
one of them) set out in Part III of the Second Schedule to the Trust Deed.
1. Promise to pay
Subject as provided in this temporary Global Bond the Issuer promises
to pay to the bearer the principal amount of this temporary Global Bond
(being at the date hereof [ ] Pounds Sterling ((pound)[ ])) on 17th
January, 2020 (or on such earlier date as the said principal amount may
become repayable in accordance with the Conditions or the Trust Deed)
and to pay interest annually in arrear on 17th January on the principal
amount from time to time of this temporary Global Bond at the rate of 9
1/4 per cent. per annum together with such other amounts (if any) as
may be payable, all subject to and in accordance with the Conditions
and the provisions of the Trust Deed.
2. Exchange for definitive Bonds and purchases
This temporary Global Bond is exchangeable in whole or in part upon the
request of the bearer for definitive Bonds only on and subject to the
terms and conditions set out below. The definitive Bonds to be issued
on such exchange will be in bearer form ("Definitive Bearer Bonds") in
the denominations of (pound)1,000, (pound)10,000 and (pound)100,000
40
each with interest coupons ("Coupons") and one Talon for further
interest coupons ("Talon") attached.
On and after 27th February, 1995 this temporary Global Bond may be
exchanged in whole or in part at the specified office of the Principal
Paying Agent (or such other place as the Trustee may agree) for
Definitive Bearer Bonds and the Issuer shall procure that the Principal
Paying Agent shall issue and deliver, in full or partial exchange for
this temporary Global Bond, Definitive Bearer Bonds (together with the
Coupons and Talons appertaining thereto) in an aggregate principal
amount equal to the principal amount of this temporary Global Bond
submitted for exchange Provided that Definitive Bearer Bonds will be so
issued and delivered only if and to the extent that there shall have
been presented to the Issuer a certificate from Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear
System ("Euroclear") or from Cedel, societe anonyme ("Cedel")
substantially in the form of the certificate attached as Exhibit A.
Any person who would, but for the provisions of this temporary Global
Bond and the Trust Deed, otherwise be entitled to receive a Definitive
Bearer Bond or Bonds shall not be entitled to require the exchange of
an appropriate part of this temporary Global Bond for a Definitive
Bearer Bond or Definitive Bearer Bonds unless and until he shall have
delivered or caused to be delivered to Euroclear or Cedel a certificate
substantially in the form of the certificate attached as Exhibit B
(copies of which form of certificate will be available at the offices
of Euroclear in Brussels and Cedel in Luxembourg and the specified
office of each of the Paying Agents).
Upon (i) any exchange of a part of this temporary Global Bond for a
Definitive Bearer Bond or Definitive Bearer Bonds or (ii) the purchase
by or on behalf of the Issuer or any Subsidiary) of the Issuer and
cancellation of a part of this temporary Global Bond in accordance with
the Conditions, the portion of the principal amount hereof so exchanged
or so purchased and cancelled shall be endorsed by or on behalf of the
Principal Paying Agent on behalf of the Issuer on Part II of the
Schedule hereto, whereupon the principal amount hereof shall be reduced
for all purposes by the amount so exchanged or so purchased and
cancelled and endorsed.
3. Payments
Until the entire principal amount of this temporary Global Bond has
been extinguished, this temporary Global Bond shall in all respects be
entitled to the same benefits as the Definitive Bearer Bonds and shall
be entitled to the benefit of and be bound by the Trust Deed, except
that the holder of this temporary Global Bond shall not (unless upon
due presentation of this temporary Global Bond for exchange, delivery
of the appropriate number of Definitive Bearer Bonds (together with the
Coupons and Talons appertaining thereto) is improperly withheld or
refused and such withholding or refusal is continuing at the relevant
payment date be entitled to receive any payment of interest on this
temporary Global Bond except upon certification as hereinafter
provided. Upon any payment of principal or interest on this temporary
41
Global Bond the amount so paid shall be endorsed by or on behalf of the
Principal Paying Agent on behalf of the Issuer on Part I of the
Schedule hereto.
Payments of interest in respect of Bonds for the time being represented
by this temporary Global Bond shall be made to the bearer only upon
presentation to the Issuer or its agent of a certificate from Euroclear
or from Cedel substantially in the form of the certificate attached as
Exhibit A. Any person who would, but for the provisions of this
temporary Global Bond and of the Trust Deed, otherwise be beneficially
entitled to a payment of interest on this temporary Global Bond shall
not be entitled to require such payment unless and until he shall have
delivered or caused to be delivered to Euroclear or Cedel a certificate
substantially in the form of the certificate attached as Exhibit B
(copies of which form of certificate will be available at the offices
of Euroclear in Brussels and Cedel in Luxembourg and the specified
office of each of the Paying Agents).
Upon any payment of principal and endorsement of such payment on Part I
of the Schedule hereto, the principal amount of this temporary Global
Bond shall be reduced for all purposes by the principal amount so paid
and endorsed.
All payments of any amounts payable and paid to the bearer of this
temporary Global Bond shall be valid and, to the extent of the sums so
paid, effectual to satisfy and discharge the liability for the moneys
payable hereon and on the relevant Definitive Bearer Bonds and Coupons.
4. Authentication
This temporary Global Bond shall not be or become valid or obligatory
for any purpose unless and until authenticated by or on behalf of the
Principal Paying Agent.
5. Governing law
This temporary Global Bond is governed by, and shall be construed in
accordance with, the laws of England.
42
IN WITNESS whereof the Issuer has caused this temporary Global Bond to be signed
manually by a person duly authorised on its behalf.
YORKSHIRE ELECTRICITY GROUP plc
By: ________________________
Duly authorised
Issued in London, England on 17th January, 1995.
Certificate of authentication
This temporary Global Bond is duly authenticated (without recourse, warranty or
liability).
............................
Duly authorised
for and on behalf of
Morgan Guaranty Trust Company
of New York, London Office,
as Principal Paying Agent
43
THE SCHEDULE
PART I
PAYMENTS OF PRINCIPAL AND INTEREST
The following payments on this temporary Global Bond have been made:
Date Interest Principal Remaining principal Notation made paid
Date Interest Principal Remaining Principal Notation
Made Paid Paid Amount of this made on
Temporary Global behalf of
Bond following the Issuer
such payment
(pound) (pound) (pound)
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44
PART II
EXCHANGES FOR DEFINITIVE BEARER BONDS AND
PURCHASES AND CANCELLATIONS
The following exchanges of a part of this temporary Global Bond for Definitive
Bearer Bonds and/or purchases and cancellations of a part of this temporary
Global Bond have been made:
Date Part of principal Part of Aggregate principal Notation
Made Amount of this Principal amount of this made on
Temporary Amount of this temporary behalf of
Global Bond Temporary Global Bond the Issuer
exchanged for Global Bond following such
Definitive Bearer Purchased and exchange or purchase
Bonds Cancelled and cancellation
(pound) (pound) (pound)
- -------------- ------------------- ----------------- -------------------------- --------------
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45
EXHIBIT A
YORKSHIRE ELECTRICITY GROUP plc
(pound)200,000,000
9 1/4 per cent. Bonds due 2020
(the "Securities")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organisations") substantially to the effect
set forth in the Trust Deed, as of the date hereof, (pound)[ ] principal amount
of the above captioned Securities (i) is owned by persons that are not citizens
or residents of the United States, domestic partnerships, domestic corporations
or any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States persons"), (ii) is
owned by United States persons that (a) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
l.165-12(c)(l)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution has agreed, on its own behalf or
through its agent, that we may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended, then this is also to
certify with respect to such principal amount of Securities set forth above
that, except as set forth below, we have received in writing, by tested telex or
by electronic transmission, from our Member Organisations entitled to a portion
of such principal amount, certifications with respect to such portion,
substantially to the effect set forth in the Trust Deed.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the temporary global Security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organisations to the effect that the statements made by such
Member Organisations with respect to any portion of the part submitted herewith
46
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
47
*Dated
[Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the
Euroclear System] [Cedel, societe anonyme]
By.....................................
Authorised Signatory
- ---------------------
* To be dated no earlier than the date to which this certification relates,
namely (a) the payment date or (b) the date set for the exchange of the
temporary Global Bond for Definitive Bearer Bonds.
48
EXHIBIT B
YORKSHIRE ELECTRICITY GROUP plc
(pound)200,000,000
9 1/4 per cent. Bonds due 2020
(the "Securities")
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that (a)
are foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(l)(v)) ("financial institutions")
purchasing for their own account or for resale, or (b) acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) this is further to certify
that such financial institution has not acquired the Securities for the purposes
of resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended (the "Act"), then this
is also to certify that, except as set forth below (i) in the case of debt
securities, the Securities are beneficially owned by (a) non-U.S. person(s) or
(b) U.S. person(s) who purchased the Securities in transactions which did not
require registration under the Act; or (ii) in the case of equity securities,
the Securities are owned by (x) non-U.S. person(s) (and such person(s) are not
acquiring the Securities for the account or benefit of U.S. person(s)) or (y)
U.S. person(s) who purchased the Securities in a transaction which did not
require registration under the Act. If this certification is being delivered in
connection with the exercise of warrants pursuant to Section 230.902(m) of
Regulation S under the Act, then this is further to certify that, except as set
forth below, the Securities are being exercised by and on behalf of non-U.S.
person(s). As used in this paragraph the term "U.S. person" has the meaning
given to it by Regulation S under the Act.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia); and its "possessions" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
49
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Securities held by
you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certification excepts and does not relate to (pound)[ ] of such interest in
the above Securities in respect of which we are not able to certify and as to
which we understand exchange and delivery of definitive Securities (or, if
relevant, exercise of any rights or collection of any interest) cannot be made
until we do so certify.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
* Dated
By ..........................................
[Name of person giving certification] (As, or as agent for, the
beneficial owner(s) of those of the Securities to which this
certification relates)
- ------------------------
* To be dated no earlier than the fifteenth day before the date to which this
certification relates, namely (a) the payment date or (b) the date set for
the exchange of the temporary Global Bond for Definitive Bearer Bonds.
50
Part II
- FORM OF ORIGINAL BEARER BOND -
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
- -------------------------------------------------------------------------------
(pound)[l,000] [10,000] [100,000] XS0055251010 [SERIES] [Serial No.]
- -------------------------------------------------------------------------------
YORKSHIRE ELECTRICITY DISTRIBUTION PLC
(Incorporated in England with limited liability under the Companies
Act 1985 with registered number 4112320)
(pound)200,000,000 9 1/4 PER CENT. GUARANTEED BONDS DUE 2020
unconditionally and irrevocably guaranteed as to principal and interest by
YORKSHIRE ELECTRICITY GROUP plc
(Incorporated in England with limited liability under the Companies
Act 1985 with registered number 2366995)
The original issue of the Bonds was authorised by resolutions of the Board of
Directors of Yorkshire Electricity Group plc ("YEG") passed on 15th December,
1994 and by resolutions of a duly authorised Committee of the Board of Directors
of the Issuer passed on 4th and 5th January, 1995.
By a resolution of the Board of Directors of Yorkshire Electricity Distribution
plc (the "Issuer") passed on 28th September, 2001 the Issuer agreed to become
the principal debtor in respect of the Bonds in substitution for YEG. By a
resolution of the Board of Directors of YEG passed on 4th June, 2001 YEG agreed
to guarantee the obligations of the Issuer under the Bonds.
This Bond forms one of a series of Bonds constituted by a Trust Deed dated 17th
January, 1995 between YEG and Bankers Trustee Company Limited as trustee for the
holders of the Bonds (the "Trustee"), as supplemented by a Second Supplemental
Trust Deed dated 19th September, 1996 made between YEG and the Trustee and by a
Third Supplemental Trust Deed dated 1st October, 2001 and made between the
Issuer, YEG and the Trustee, as modified and restated by an Amended and Restated
Trust Deed dated 1st October, 2001 made between the Issuer, YEG and the Trustee
(together, the "Trust Deed") and issued either as bearer bonds in the
51
denominations of (pound)1,000, (pound)10,000 and (pound)100,000 each with
Coupons and one Talon attached or as registered bonds in the denomination of
(pound)1 each or an integral multiple thereof, in an aggregate principal amount
of (pound)200,000,000.
The Issuer for value received and subject to and in accordance with the
Conditions endorsed hereon hereby promises to pay to the bearer on 17th January,
2020 (or on such earlier date as the principal sum hereunder mentioned may
become repayable in accordance with the said Conditions) the principal sum of:
(pound)[l,000] [10,000] [100,000] ([One] [Ten] [One Hundred Thousand Pounds
Sterling)
together with interest on the said principal sum at the rate of 9 1/4 per cent.
per annum payable annually in arrear on 17th January and together with such
other amounts (if any) as may be payable, all subject to and in accordance with
the said Conditions and the provisions of the Trust Deed.
Neither this Bond nor the Coupons and Talon appertaining hereto shall be or
become valid or obligatory for any purpose unless and until this Bond has been
authenticated by or on behalf of the Principal Paying Agent.
IN WITNESS whereof this Bond has been executed on behalf of the Issuer.
YORKSHIRE ELECTRICITY DISTRIBUTION PLC
By: ________________________
Director
Issued in London, England.
Certificate of authentication
This Bond is duly authenticated (without recourse, warranty or liability).
.........................
Duly authorised
for and on behalf of the
Principal Paying Agent
52
- FORM OF ORIGINAL COUPON -
On the front:
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
YORKSHIRE ELECTRICITY DISTRIBUTION PLC
(pound)200,000,000 9 1/4 PER CENT. GUARANTEED BONDS DUE 2020
Coupon appertaining to a Bond in the denomination of (pound)[l,000] [10,000]
[100,000].
This Coupon is separately Coupon for
negotiable, payable to bearer, (pound)[92.50] [925.00] [9,250.00]
and subject to the due on
Conditions of the said Bonds. l7th January, [ ]
- -------------------------------------------------------------------------------
[No.] (pound)[l,000] [10,000] [100,000] XS0055251010 [Series] [Serial No.]
- -------------------------------------------------------------------------------
53
- FORM OF ORIGINAL TALON -
On the front:
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
YORKSHIRE ELECTRICITY DISTRIBUTION PLC
(pound)200,000,000 9 1/4 PER CENT. GUARANTEED BONDS DUE 2020
Talon appertaining to a Bond in the denomination of(pound)[1,000][10,000]
[100,000]
On and after 17th January, [2005/2015] [ten/five] further Coupons [and a further
Talon] will be issued at the specified office of any of the Paying Agents set
out on the reverse hereof (and or any other or further Paying Agents and/or
specified offices as may from time to time be duly appointed and notified to the
Bondholders) upon production and surrender of this Talon.
- -------------------------------------------------------------------------------
[No.] [1,000][10,000][l00,00] XS0055251010 [Series] [Serial No.]
- -------------------------------------------------------------------------------
On the back of the Original Coupons and the Original Talons:
PRINCIPAL PAYING AGENT
CITIBANK, N.A.
5 Carmelite Street
London EC4Y OPA
Telephone: 020 7508 3841
Fax: 020 7508 3878
Attention: Agency and Trust
OTHER PAYING AGENT
BNP PARIBAS LUXEMBOURG
10A Boulevard Royal
L-2093 Luxembourg
54
Part III
- FORM OF ORIGINAL REGISTERED BOND -
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING TUE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
- -------------------------------------------------------------------------------
Certificate Number Transfer No. Holder Code Registration Date Amount (pound)
- -------------------------------------------------------------------------------
YORKSHIRE ELECTRICITY DISTRIBUTION PLC
(Incorporated in England with limited liability under the Companies
Act 1985 with registered number 4112320)
(pound)200,000,000 91/4 PER CENT. GUARANTEED BONDS DUE 2020
unconditionally and irrevocably guaranteed as to principal and interest by
YORKSHIRE ELECTRICITY GROUP plc
(Incorporated in England with limited liability under the Companies
Act 1985 with registered number 2366995)
Interest at the rate of 9 1/4 per cent. per annum is payable on the principal
amount of this Registered Bond annually in arrear on 17th January in each year,
subject to and in accordance with the Conditions endorsed hereon and the
provisions of the Trust Deed dated 17th January. 1995 between Yorkshire
Electricity Group plc ("YEG") and Bankers Trustee Company Limited as trustee for
the holders of the Bonds (the "Trustee"), as supplemented by a Second
Supplemental Trust Deed dated 19th September, 1996 made between YEG and the
Trustee and by a Third Supplemental Trust Deed dated 1st October, 2001 and made
between Yorkshire Electricity Distribution plc (the "Issuer"), YEG and the
Trustee, as modified and restated by an Amended and Restated Trust Deed dated
1st October, 2001 made between the Issuer, YEG and the Trustee (together, the
"Trust Deed") constituting the Bonds.
THIS IS TO CERTIFY that is/are the registered holder(s) of in principal amount
of the above-mentioned Registered Bonds and is/are entitled on 17th January,
2020 (or on such earlier date as such principal amount may become repayable in
accordance with the Conditions) to the repayment of such principal amount
together with such other amounts (if any) as may be payable, all subject to and
in accordance with the said Conditions and the provisions of the said Trust
Deed.
IN WITNESS whereof this Registered Bond has been executed on behalf of the
Issuer.
55
YORKSHIRE ELECTRICITY DISTRIBUTION PLC
By: __________________________
Director
This Certificate must be surrendered before any transfer of the whole or part of
the Registered Bonds herein mentioned can be registered.
56
- FORM OF TRANSFER OF REGISTERED BOND -
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) to
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Please print or type name and address (including postal code) of transferee)
(pound) principal amount of this Registered Bond and all rights hereunder,
hereby irrevocably constituting and appointing ___________________________
as attorney to transfer such principal amount of this Bond in the register
maintained by the Issuer with full power of substitution.
Signature(s) of transferor(s) ________________________
________________________
Date: ____________________
N.B.:
1. This form of transfer must be accompanied by such documents, evidence
and information as may be required pursuant to the Conditions and must
be executed under the hand of the transferor or, if the transferor is a
corporation, either under its common seal or under the hand of two of
its officers duly authorised in writing and, in such latter case, the
document so authorising such officers must be delivered with this form
of transfer.
2. In each case the signature(s) must be guaranteed by a commercial bank
with a correspondent bank in New York City, Luxembourg or London or by
an institution which is a member of The New York Stock Exchange or The
American Stock Exchange in New York City or the Luxembourg Stock
Exchange or The Stock Exchange in London.
3. The signature(s) on this form of transfer must correspond with the
name(s) at it/they appear(s) on the face of this Registered Bond in
every particular, without alteration or enlargement or any change
whatever.
4. Registered Bonds are only transferable in amounts of (pound)1 or any
integral multiples thereof.
57
THE SECOND SCHEDULE
- CONDITIONS OF THE BONDS -
The following is the text of the terms and conditions of the Bonds which
(subject to amendment) will be deemed to be endorsed on each Bond in definitive
form:
The (pound)200,000,000 9 1/4 per cent. Guaranteed Bonds due 2020 (the "Bonds",
which expression shall in these Terms and Conditions, unless the context
otherwise requires, include any further bonds issued pursuant to Condition 19
and forming a single series with the Bonds) of Yorkshire Electricity
Distribution plc (the "Issuer") are constituted by a trust deed dated 17th
January, 1995 (the "Principal Trust Deed") supplemented by a second supplemental
trust deed dated 19th September, 1996 (the "Second Supplemental Trust Deed")
both made between Yorkshire Electricity Group plc ("YEG") and Bankers Trustee
Company Limited (the "Trustee", which expression shall include any successor) as
trustee for the holders of the Bonds (the "Bondholders"), as further
supplemented by a third supplemental trust deed (the "Third Supplemental Trust
Deed") dated 1st October, 2001 and made between the Issuer, YEG (in its capacity
as guarantor, the "Guarantor") and the Trustee. The Third Supplemental Trust
Deed includes the form of amended and restated trust deed relating to the Bonds
dated 1st October, 2001 (the "Amended and Restated Trust Deed") made between the
Issuer, the Guarantor and the Trustee. The Principal Trust Deed, the Second
Supplemental Trust Deed and the Third Supplemental Trust Deed, as amended and
restated by the Amended and Restated Trust Deed, are together referred to as the
"Trust Deed". The issue of the Bonds was authorised by resolutions of the board
of directors of YEG passed on 15th December, 1994 and by resolutions of a duly
authorised committee of the board of directors of YEG passed on 4th and 5th
January, 1995. The substitution of the Issuer in place of YEG as issuer of the
Bonds and the giving of the Guarantee (as defined below) was authorised by
resolutions of the board of directors of YEG passed on 4th June, 2001. The
substitution of the Issuer in place of YEG as issuer of the Bonds was authorised
by resolutions of the board of directors of the Issuer passed on 28th September,
2001. The Bonds are on issue, listed on The London Stock Exchange plc (the
"London Stock Exchange"). The statements in these Terms and Conditions include
summaries of, and are subject to, the detailed provisions of and definitions in
the Trust Deed. The Bonds are also issued with the benefit of an agency
agreement dated 17th January, 1995 (the "Principal Agency Agreement") made
between YEG, Morgan Guaranty Trust Company of New York, London office, as
principal paying agent (the "Principal Paying Agent", which expression shall
include any successor), The Royal Bank of Scotland plc as registrar (the
"Registrar", which expression shall include any successor), the other paying
agents named therein (together with the Principal Paying Agent, the "Paying
Agents", which expression shall include any additional or successor paying
agents) and the Trustee supplemented by a supplemental agency agreement dated
1st October, 2001 (the "Supplemental Agency Agreement") made between the Issuer,
the Guarantor, the Registrar (being Computershare Investor Services PLC, as
successor to The Royal Bank of Scotland plc in that capacity), the Paying Agents
(including Citibank, N.A. as principal paying agent, being the successor to
Morgan Guaranty Trust Company of New York, London office in that capacity) and
the Trustee. The Principal Agency Agreement and the Supplemental Agency
Agreement are together referred to as the "Agency Agreement". Copies of the
Trust Deed and the Agency Agreement are available for inspection during normal
business hours by the Bondholders and the holders of the interest coupons
appertaining to the Bonds (respectively, the "Couponholders" and the "Coupons",
58
which latter expression shall, unless the context otherwise requires, include
the Talons referred to below) at the registered office for the time being of the
Trustee, being at 1st October, 2001 at Winchester House, I Great Winchester
Street, London EC2N 2DB, and at the specified office of each of the Paying
Agents and the Registrar. The Bondholders and the Couponholders are entitled to
the benefit of, are bound by, and are deemed to have notice of, all the
provisions of the Trust Deed and the Agency Agreement.
1. Form, Denominations and Title
The Bonds are in bearer form, serially numbered, in the denominations
of (pound)1,000, (pound)10,000 and (pound)100,000 each ("Bearer Bonds")
with Coupons and one Talon for further Coupons (a "Talon") attached on
issue and in registered form in the denominations of (pound)1 and
integral multiples thereof ("Registered Bonds") without interest
coupons. Title to the Bearer Bonds and to the Coupons will pass by
delivery and title to the Registered Bonds will pass upon the
registration of transfers in accordance with the provisions of the
Agency Agreement and the Trust Deed. Bearer Bonds of one denomination
cannot be exchanged for Bearer Bonds of another denomination.
The Issuer, the Guarantor, any Paying Agent, the Registrar and the
Trustee may (to the fullest extent permitted by applicable laws) deem
and treat the holder of any Bearer Bond and the holder of any Coupon
and the registered holder of any Registered Bond as the absolute owner
for all purposes (whether or not the Bond or Coupon shall be overdue
and notwithstanding any notice of ownership or writing on the Bond or
Coupon or any notice of previous loss or theft of the Bond or Coupon).
2. Transfer and Exchange
(a) Transfer of Registered Bonds
A Registered Bond may be transferred in whole or in part (in the
principal amount of (pound)1 or any integral multiple thereof) by the
transferor depositing the Registered Bond for registration of the
transfer of the Registered Bond (or the relevant part of the Registered
Bond) at the specified office of the Registrar, with the form of
transfer endorsed on the Registered Bond duly completed and signed by
or on behalf of the transferor and upon the Registrar after due and
careful enquiry being satisfied with the documents of title and the
identity of the person making the request and subject to such
reasonable regulations as the Issuer and the Registrar may (with the
prior approval of the Trustee) prescribe. Subject as provided above,
the Registrar will, within three business days of the request (or such
longer period as may be required to comply with any applicable fiscal
or other laws or regulations), deliver at its specified office to the
transferee or (at the risk and, if mailed at the request of the
transferee otherwise than by ordinary uninsured mail, at the expense of
the transferee) send by mail to such address as the transferee may
request a new Registered Bond of a like aggregate principal amount to
the Registered Bond (or the relevant part of the Registered Bond)
transferred. In the case of the transfer of part only of a Registered
Bond, a new Registered Bond in respect of the balance of the Registered
59
Bond not transferred will be so delivered or (at the risk and, if
mailed at the request of the transferor otherwise than by ordinary
uninsured mail, at the expense of the transferor) sent by mail to the
transferor.
(b) Exchange of Bearer Bonds for Registered Bonds
At the option of the holder thereof, upon presentation to the Principal
Paying Agent at any time on or after 27th February, 1995 (the "Exchange
Date") of a duly completed and signed request for exchange (in the form
for the time being obtainable from the specified office of the
Registrar or the Principal Paying Agent) together with the relevant
Bearer Bonds, subject to the terms of the Agency Agreement, Bearer
Bonds are exchangeable for the same aggregate principal amount of
Registered Bonds, provided that (save as provided below) all unmatured
Coupons relating thereto are attached thereto or are surrendered
therewith. Bearer Bonds may not be surrendered in exchange for
Registered Bonds after a Record Date (as defined in Condition 7) and on
or before the next following Interest Payment Date (as defined in
Condition 6). Interest on a Registered Bond issued on exchange will
accrue as from the immediately preceding Interest Payment Date or, if
none, as from 17th January, 1995 (the "Closing Date"). Within seven
business days of the request, the Registrar will deliver at its
specified office to the Bondholder or (at the risk and, if mailed at
the request of the Bondholder otherwise than by ordinary uninsured
mail, at the expense of the Bondholder) send by mail to such address as
may be specified by the Bondholder in the request a Registered Bond of
a like aggregate principal amount to the Bearer Bond exchanged.
(c) Exchange of Registered Bonds for Bearer Bonds
At the option of the holder thereof upon presentation to the Registrar
at any time on or after the Exchange Date of a duly completed and
signed request for exchange (in the form for the time being obtainable
from the specified office of the Registrar or the Principal Paying
Agent (a "Bearer Request")) together with the relevant Registered
Bonds, subject to the terms of the Agency Agreement, Registered Bonds
are exchangeable in whole or in part in principal amounts of
(pound)1,000 or integral multiples thereof for the same aggregate
principal amount of Bearer Bonds. Interest on a Registered Bond
surrendered for exchange will cease to accrue as from the Interest
Payment Date immediately preceding the date of surrender or, if none,
the Closing Date. Bearer Requests may not be presented on or after the
Record Date in respect of any Interest Payment Date up to and including
such Interest Payment Date. Bearer Requests may only be presented, and
Registered Bonds may only be surrendered for exchange for Bearer Bonds,
at the specified office of the Registrar. The Principal Paying Agent
will within seven business days of the date of presentation to the
Registrar of any Bearer Request together with the relevant Registered
Bonds deliver at its specified office (or (at the risk and, if mailed
at the request of the Bondholder otherwise than by ordinary uninsured
mail, at the expense of the Bondholder) mail to such address, other
than an address in the United States, as the Bondholder may request)
the Bearer Bond or Bearer Bonds requested together with all Coupons in
respect of all Interest Payment Dates falling after the date of
presentation. In the case of exchange of part only of the Bonds
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represented by a Registered Bond, a Registered Bond for the balance
after such exchange will be sent by mail by the Registrar (at the risk
and, if mailed at the request of the Bondholder otherwise than by
ordinary uninsured mail, at the expense of the Bondholder) to such
address, other than an address in the United States, as the Bondholder
may request.
(d) Closed Periods
In the event of a partial redemption of Bonds under Condition 8, the
Issuer shall not be required:
(i) to register the transfer of Registered Bonds (or parts of
Registered Bonds) or to exchange Bearer Bonds for Registered
Bonds (or vice versa) during the period beginning on the
sixty-fifth day before the date of the partial redemption and
ending on the day on which notice is given specifying the
serial numbers of Bonds called (in whole or in part) for
redemption (both inclusive); or
(ii) to register the transfer of any Registered Bond (or part
thereof) called for partial redemption; or
(iii) to exchange any Registered Bond (or part thereof) or Bearer
Bond called for partial redemption; except that a Registered
Bond (or part thereof) or Bearer Bond called for partial
redemption may be exchanged for a Bearer Bond or Registered
Bond, respectively, which is simultaneously surrendered not
later than the relevant Record Date.
(e) Formalities free of charge
Bondholders will not be required to bear the costs and expenses of
effecting any registration of transfer or any exchange as provided
above, except for any costs or expenses of delivery other than by
ordinary uninsured mail and except that the Issuer may require the
payment of a sum sufficient to cover any stamp duty, tax or other
governmental charge that may be imposed in relation to the registration
or exchange.
(f) Registrar
The name of the initial Registrar and its initial specified office are
set out at the end of these Terms and Conditions. The Issuer reserves
the right, subject to the approval of the Trustee, at any time to vary
or terminate the appointment of the Registrar and to appoint another
Registrar. Notice of any termination or appointment and of any changes
in specified office will be given to the Bondholders promptly by the
Issuer in accordance with Condition 16.
3. Status
The Bonds and the Coupons are direct, unconditional and, subject to the
provisions of Condition 5, unsecured obligations of the Issuer and,
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subject as aforesaid, rank and will rank pari passu, without any
preference among themselves, with all other outstanding unsecured and
unsubordinated obligations of the Issuer, present and future, but, in
the event of insolvency, only to the extent permitted by the applicable
laws relating to creditors' rights.
4. Guarantee
The payment of the principal and interest in respect of the Bonds and
all other moneys payable by the Issuer under or pursuant to the Trust
Deed has been unconditionally and irrevocably guaranteed by the
Guarantor (the "Guarantee") in the Trust Deed. The obligations of the
Guarantor under the Guarantee constitute direct, unconditional and
(subject to the provisions of Condition 5) unsecured and unsubordinated
obligations of the Guarantor and (subject as provided above) rank and
will rank pari passu with all other outstanding unsecured and
unsubordinated obligations of the Guarantor, present and future, but,
in the event of insolvency, only to the extent permitted by applicable
laws relating to creditors' rights.
5. Negative Pledge
So long as any of the Bonds remains outstanding (as defined in the
Trust Deed) the Issuer and the Guarantor will ensure that no Relevant
Indebtedness (as defined below) of the Issuer, the Guarantor or any
Distribution Subsidiary (as defined below) or of any other person and
no guarantee by the Issuer, the Guarantor or any Distribution
Subsidiary of any Relevant Indebtedness of any other person will be
secured by a mortgage, charge, lien, pledge or other security interest
(each a "Security Interest") upon, or with respect to, any of the
present or future business, undertaking, assets or revenues (including
any uncalled capital) of the Issuer, the Guarantor or any Distribution
Subsidiary unless the Issuer and the Guarantor shall, before or at the
same time as the creation of the Security Interest, take any and all
action necessary to ensure that:
(i) all amounts payable by the Issuer under the Bonds, the Coupons
and the Trust Deed, or by the Guarantor under the Guarantee,
are secured equally and rateably with the Relevant
Indebtedness or guarantee, as the case may be, by the Security
Interest to the satisfaction of the Trustee; or
(ii) such other Security Interest or guarantee or other arrangement
(whether or not including the giving of a Security Interest)
is provided in respect of all amounts payable by the Issuer
under the Bonds, the Coupons and the Trust Deed, or by the
Guarantor under the Guarantee, either (i) as the Trustee shall
in its absolute discretion deem not materially less beneficial
to the interests of the Bondholders or (ii) as shall be
approved by an Extraordinary Resolution (as defined in the
Trust Deed) of the Bondholders
save that the Issuer, the Guarantor or any Distribution Subsidiary may
create or have outstanding a Security Interest in respect of any of its
Relevant Indebtedness and/or any guarantees given by the Issuer, the
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Guarantor or any Distribution Subsidiary in respect of any Relevant
Indebtedness of any other person (without the obligation to provide a
Security Interest or guarantee or other arrangement in respect of the
Bonds, the Coupons and the Trust Deed as aforesaid) where such Relevant
Indebtedness has an initial maturity falling not earlier than 17th
January, 2020 and is of a maximum aggregate amount outstanding at any
time not exceeding the greater of (pound)200,000,000 and 20 per cent.
of the Capital and Reserves (as defined below).
For the purposes of these Terms and Conditions:
(A) "Capital and Reserves" means the aggregate of:
(i) the amount paid up or credited as paid up on the share
capital of the Guarantor; and
(ii) the total of the capital, revaluation and revenue reserves
of the Group, including any share premium account, capital
redemption reserve and credit balance on the profit and loss
account, but excluding sums set aside for taxation and
amounts attributable to outside shareholders in Subsidiary
Undertakings (as defined below) and deducting any debit
balance on the profit and loss account,
all as shown in the then latest audited consolidated balance sheet
of the Group prepared in accordance with the historical cost
convention (as modified by the revaluation of certain fixed
assets) for the purposes of the Companies Act 1985, but adjusted
as may be necessary in respect of any variation in the paid up
share capital or share premium account of the Guarantor since the
date of that balance sheet and further adjusted as may be
necessary to reflect any change since the date of that balance
sheet in the Subsidiary Undertakings comprising the Group and/or
as the Auditors (as defined in the Trust Deed) may consider
appropriate.
A report by the Auditors as to the amount of the Capital and
Reserves at any given time shall, in the absence of manifest
error, be conclusive and binding on all parties;
(B) "Distribution Licence" means the electricity distribution licence
granted under section 6(l)(c) of the Electricity Act, as amended
by the Utilities Act 2000, to the Issuer;
(C) "Distribution Subsidiary" means any Subsidiary of the Guarantor
(other than the Issuer) which holds the Distribution Licence from
time to time;
(D) "Excluded Subsidiary" means any Subsidiary of the Guarantor (other
than the Issuer or a Distribution Subsidiary):
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(i) which is a single purpose company whose principal assets and
business are constituted by the ownership, acquisition,
development and/or operation of an asset;
(ii) none of whose indebtedness for borrowed money in respect of
the financing of such ownership, acquisition, development
and/or operation of an asset is subject to any recourse
whatsoever to any member of the Group (other than another
Excluded Subsidiary) in respect of the repayment thereof,
except as expressly referred to in paragraph (G)(ii)(3); and
(iii) which has been designated as such by the Guarantor by
written notice to the Trustee, provided that the Guarantor
may give written notice to the Trustee at any time that any
Excluded Subsidiary is no longer an Excluded Subsidiary,
whereupon it shall cease to be an Excluded Subsidiary;
(E) "Group" means the Guarantor and its Subsidiary Undertakings;
(F) "indebtedness for borrowed money" means any present or future
indebtedness (whether being principal, premium, interest or other
amounts) for or in respect of (i) money borrowed, (ii)
liabilities under or in respect of any acceptance or acceptance
credit, or (iii) any notes, bonds, debentures, debenture stock,
loan stock or other securities offered, issued or distributed
whether by way of public offer, private placing, acquisition
consideration or otherwise and whether issued for cash or in
whole or in part for a consideration other than cash;
(G) "Project Finance Indebtedness" means any indebtedness for
borrowed money to finance the ownership, acquisition, development
and/or operation of an asset:
(i) which is incurred by an Excluded Subsidiary; or
(ii) in respect of which the person or persons to whom any such
indebtedness for borrowed money is or may be owed by the
relevant borrower (whether or not a member of the Group) has
or have no recourse whatsoever to any member of the Group
(other than an Excluded Subsidiary) for the repayment
thereof other than:
(1) recourse to such borrower for amounts limited to the
cash flow or net cash flow (other than historic cash
flow or historic net cash flow) from such asset; and/or
(2) recourse to such borrower for the purpose only of
enabling amounts to be claimed in respect of such
indebtedness for borrowed money in an enforcement of
any encumbrance given by such borrower over such asset
or the income, cash flow or other proceeds deriving
therefrom (or given by any shareholder or the like in
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the borrower over its shares or the like in the capital
of the borrower) to secure such indebtedness for
borrowed money, provided that (aa) the extent of such
recourse to such borrower is limited solely to the
amount of any recoveries made on any such enforcement,
and (bb) such person or persons are not entitled, by
virtue of any right or claim arising out of or in
connection with such indebtedness for borrowed money,
to commence proceedings for the winding up or
dissolution of the borrower or to appoint or procure
the appointment of any receiver, trustee or similar
person or officer in respect of the borrower or any of
its assets (save for the assets the subject of such
encumbrance); and/or
(3) recourse to such borrower generally, or directly or
indirectly to a member of the Group, under any form of
assurance, undertaking or support, which recourse is
limited to a claim for damages (other than liquidated
damages and damages required to be calculated in a
specified way) for breach of an obligation (not being a
payment obligation or an obligation to procure payment
by another or an indemnity in respect thereof or any
obligation to comply or to procure compliance by
another with any financial ratios or other tests of
financial condition) by the person against whom such
recourse is available;
(H) "Relevant Indebtedness" means any present or future
indebtedness (whether being principal, premium, interest or
other amounts) in the form of or represented by notes, bonds,
debentures, debenture stock, loan stock or other securities,
whether issued for cash or in whole or in part for a
consideration other than cash, and which, with the agreement
of the person issuing the same are quoted, listed or
ordinarily dealt in on any stock exchange or recognised
over-the-counter or other securities market, but shall in any
event not include Project Finance Indebtedness;
(I) "Subsidiary" means a subsidiary within the meaning of Section
736 of the Companies Act 1985;
(J) "Subsidiary Undertaking" shall have the meaning given to it by
Section 258 of the Companies Act 1985 (but shall exclude any
undertakings (as defined in the Companies Act 1985) whose
accounts are not included in the then latest published audited
consolidated accounts of the Guarantor nor (in the case of an
undertaking which has first become a subsidiary undertaking of
a member of the Group since the date as at which any such
audited accounts were prepared) would its accounts have been
so included or consolidated if it had become so on or before
that date); and
(K) any reference to an obligation being guaranteed shall include
a reference to an indemnity being given in respect of the
obligation.
6. Interest
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The Bonds bear interest from (and including) the Closing Date at the
rate of 9 1/4 per cent. per annum, payable annually in arrear on 17th
January in each year (each an "Interest Payment Date"), the first such
payment to be made on 17th January, 1996 and to amount to a full year's
interest.
Each Bond or, in the case of the redemption of part only of a
Registered Bond, that part only of the Registered Bond will cease to
bear interest from its due date for redemption unless, upon due
presentation, payment of the principal in respect of the Bond is
improperly withheld or refused or unless default is otherwise made in
respect of such payment, in which event interest shall continue to
accrue as provided in the Trust Deed.
When interest is required to be calculated in respect of a period of
less than a full year, it shall be calculated on the basis of a 360 day
year consisting of 12 months of 30 days each.
7. Payments and Exchange of Talons
Payments of principal and interest in respect of each Bearer Bond will
be made against presentation and surrender (or, in the case of part
payment only, endorsement) of the Bearer Bond, except that payments of
interest due on an Interest Payment Date will be made against
presentation and surrender (or, in the case of part payment only,
endorsement) of the relevant Coupons, in each case at the specified
office of any of the Paying Agents.
Payments in respect of each Bearer Bond will be made at the specified
office of any Paying Agent, at the option of the holder, by sterling
cheque drawn on, or by transfer to a sterling account maintained by the
payee with, a bank in London, subject in all cases to any applicable
fiscal or other laws and regulations, but without prejudice to the
provisions of Condition 10.
Each Bearer Bond should be presented for payment together with all
relative unmatured Coupons, failing which the full amount of any
relative missing unmatured Coupon (or, in the case of payment not being
made in full, that proportion of the full amount of the missing
unmatured Coupon which the amount so paid bears to the total amount
due) will be deducted from the amount due for payment. Each amount so
deducted will be paid in the manner mentioned above against
presentation and surrender (or, in the case of part payment only,
endorsement) of the relative missing Coupon at any time before the
expiry of 10 years after the Relevant Date (as defined in Condition 10)
in respect of the relevant Bond (whether or not the Coupon would
otherwise have become void pursuant to Condition 11), or, if later,
five years after the date on which the Coupon would have become due,
but not thereafter.
Payments of principal in respect of each Registered Bond will be made
against presentation and surrender (or, in the case of part payment
only, endorsement) of the Registered Bond at the specified office of
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the Registrar in London by sterling cheque drawn on a bank in London.
Payments of interest on each Registered Bond will be made by sterling
cheque drawn on a bank in London and mailed on the Business Day (as
defined below) in London immediately preceding the relevant due date to
the holder (or to the first named of joint holders) of the Registered
Bond appearing on the register at the close of business on the seventh
day before the relevant due date (the "Record Date") at his address
shown on the register on the Record Date. Upon application of the
holder to the specified office of the Registrar, not less than three
Business Days in London before the due date for any payment in respect
of a Registered Bond, the payment may be made (in the case of payment
of principal against presentation and surrender (or, in the case of
part payment only, endorsement) of the relevant Registered Bond as
provided above) by transfer on the due date to a sterling account
maintained by the payee with a bank in London. Payments in respect of
principal and interest on Registered Bonds are subject in all cases to
any fiscal or other laws and regulations applicable in the place of
payment, but without prejudice to the provisions of Condition 10.
A holder shall be entitled to present a Bond or Coupon for payment only
on a Presentation Date and shall not be entitled to any further
interest or other payment if a Presentation Date is after the due date.
"Presentation Date" means a day which (subject to Condition 11):
(a) is or falls after the relevant due date but, if the due date
is not or was not a Business Day in London, is or falls after
the next following such Business Day; and
(b) is a Business Day in the place of the specified office of the
Paying Agent (or the Registrar in the case of payments of
principal in respect of Registered Bonds) at which the Bond or
Coupon is presented for payment and, in the case of payment by
transfer to a sterling account in London as referred to above,
in London.
"Business Day" means, in relation to any place, a day on which
commercial banks and foreign exchange markets settle payments in that
place.
On and after the Interest Payment Date on which the final Coupon
comprised in any Coupon sheet matures, the Talon comprised in the
Coupon Sheet may be surrendered at the specified office of any Paying
Agent in exchange for a further Coupon sheet (including any appropriate
further Talon), subject to the provisions of Condition 11. Each Talon
shall, for the purposes of these Conditions, be deemed to mature on the
Interest Payment Date on which the final Coupon comprised in the
relative Coupon sheet matures.
The names of the Paying Agents and their specified offices are set out
at the end of these Terms and Conditions. The Issuer reserves the
right, subject to the prior written approval of the Trustee, at any
time to vary or terminate the appointment of any Paying Agent and to
appoint additional or other Paying Agents provided that it will at all
times maintain at least two Paying Agents having specified offices in
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separate European cities approved by the Trustee, one of which, so long
as the Bonds are listed on the London Stock Exchange, shall be London
or such other place as the London Stock Exchange may approve and one of
which shall be outside the United Kingdom. Notice of any termination or
appointment and of any changes in specified offices will be given to
the Bondholders promptly by the Issuer in accordance with Condition 16.
8. Redemption and Purchase
(a) Unless previously redeemed or purchased and cancelled as provided
below, the Issuer will redeem the Bonds at their principal amount on
17th January, 2020.
(b) The Issuer may, at any time, having given notice to the Bondholders in
accordance with this Condition 8(b) (which notice shall be
irrevocable), redeem the Bonds in whole or in part (but if in part, in
integral multiples of (pound)1,000,000 in principal amount thereof), at
the price which shall be the higher of the following, together with
interest accrued up to the date of redemption:
(i) par; and
(ii) that price (the "Redemption Price"), expressed as a percentage
rounded to three decimal places (0.0005 being rounded down), at
which the Gross Redemption Yield on the Bonds, if they were to be
purchased at such price on the third dealing day prior to the
publication of the notice of redemption or, in the case of a
partial redemption, the first notice of redemption referred to
below, would be equal to the Gross Redemption Yield on such
dealing day of the 8 3/4 per cent. Treasury Stock 2017 or of such
other United Kingdom Government Stock as the Trustee, with the
advice of three leading brokers operating in the gilt-edged
market and/or gilt-edged market makers, shall determine to be
appropriate (the "Reference Stock") on the basis of the middle
market price of the Reference Stock prevailing on such dealing
day, as determined by UBS Limited or its successors (or such
other person(s) as the Trustee may approve).
The Gross Redemption Yield on the Bonds and the Reference Stock will be
expressed as a percentage and will be calculated on the basis indicated
by the Joint Index and Classification Committee of the Institute and
Faculty of Actuaries as reported in the Journal of the Institute of
Actuaries, Vol. 105, Part 1, 1978, page 18 or on such other basis as
the Trustee may approve.
In the case of a partial redemption of Bonds, Bonds (or, as the case
may be, parts of Registered Bonds) to be redeemed will be selected
individually by lot in such place as the Trustee may approve and in
such manner as the Trustee shall deem to be appropriate and fair
without involving any part only of a Bearer Bond, not more than 65 days
before the date fixed for redemption. In the case of a redemption of
all of the Bonds pursuant to this Condition 8(b), notice will be given
to the Bondholders by the Issuer in accordance with Condition 16 once
not less than 30 nor more than 60 days before the date fixed for
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redemption. In the case of a partial redemption, notice will be so
given twice, first not less than 80 nor more than 95 days, and secondly
not less than 30 nor more than 60 days, before the date fixed for
redemption. Each notice will specify the date fixed for redemption and
the redemption price and, in the case of a partial redemption, the
aggregate principal amount of the Bonds to be redeemed, the serial
numbers of Bonds previously called (in whole or in part) for redemption
and not presented for payment and the aggregate principal amount of the
Bonds which will be outstanding after the partial redemption. In
addition, in the case of a partial redemption, the first notice will
specify the period during which exchanges or transfers of Bonds may not
be made as provided in Condition 2 and the second notice will specify
the serial numbers of the Bonds called (in whole or, in the case of
Registered Bonds, in part) for redemption.
Upon the expiry of any such notice as is referred to above, the Issuer
shall be bound to redeem the Bonds to which the notice refers at the
relative redemption price applicable at the date of such redemption
together with interest accrued to but excluding such date.
(c) If as a result of any change in, or amendment to, the laws or
regulations of the United Kingdom or any political sub-division of, or
any authority in, or of, the United Kingdom having power to tax, or any
change in the application or official interpretation of such laws or
regulations, which change or amendment becomes effective after 17th
January, 1995, either (1) the Issuer has or will become obliged to pay
additional amounts as provided or referred to in Condition 10 (and such
amendment or change has been evidenced by the delivery by the Issuer to
the Trustee (who shall, in the absence of manifest error, accept such
certificate and opinion as sufficient evidence thereof) of (i) a
certificate signed by two directors of the Issuer on behalf of the
Issuer stating that such amendment or change has occurred (irrespective
of whether such amendment or change is then effective), describing the
facts leading thereto and stating that such obligation cannot be
avoided by the Issuer or, as the case may be, the Guarantor taking
reasonable measures available to it and (ii) an opinion in a form
satisfactory to the Trustee of independent legal advisers of recognised
standing to whom the Trustee shall have no reasonable objection to the
effect that such amendment or change has occurred (irrespective of
whether such amendment or change is then effective)), or (2) the
Guarantor would be unable for reasons outside its control to procure
payment by the Issuer and in making payment itself would be required to
pay additional amounts, the Issuer may at its option, having given not
less than 30 nor more than 60 days' notice to the Bondholders in
accordance with Condition 16 (which notice shall be irrevocable),
redeem all the Bonds (other than Bonds in respect of which the Issuer
shall have given a notice of redemption pursuant to Condition 8(b)
prior to any notice being given under this Condition 8(c)) but not some
only, at their principal amount together with interest (if any) accrued
to the date of redemption, provided that no notice of redemption shall
be given earlier than 90 days before the earliest date on which the
Issuer or, as the case may be, the Guarantor would be required to pay
such additional amounts were a payment in respect of the Bonds then
due.
Upon the expiry of any such notice as is referred to above (and subject
as provided above), the Issuer shall be bound to redeem the Bonds at
their principal amount together with interest accrued to but excluding
the redemption date.
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(d) The Issuer, the Guarantor or any of the Guarantor's other Subsidiaries
may at any time purchase Bonds in any manner and at any price. If
purchases are made by tender, tenders must be available to all
Bondholders alike.
(e) All Bonds which are redeemed by the Issuer will forthwith be cancelled
(together, in the case of Bearer Bonds, with all relative unmatured
Coupons attached to the Bearer Bonds or surrendered with the Bearer
Bonds) and may not be reissued or resold. Bonds purchased by the
Issuer, the Guarantor or any of the Guarantor's other Subsidiaries may
be held or reissued or resold or surrendered for cancellation.
9. Redemption at the Option of Bondholders
(a) (i) If, at any time while any of the Bonds remains outstanding, a
Restructuring Event (as defined below) occurs and prior to the
commencement of or during the Restructuring Period (as defined below)
an independent financial adviser (as defined below) shall have
certified in writing to the Trustee that such Restructuring Event will
not be or is not, in its opinion, materially prejudicial to the
interests of the Bondholders, the following provisions of this
Condition 9 shall cease to have any further effect in relation to such
Restructuring Event.
(ii) If, at any time while any of the Bonds remains outstanding, a
Restructuring Event occurs and (subject to Condition 9(a)(i)):
(A) within the Restructuring Period, either:
(1) if at the time such Restructuring Event occurs there
are Rated Securities (as defined below), a Rating
Downgrade (as defined below) in respect of such
Restructuring Event also occurs; or
(2) if at such time there are no Rated Securities, a
Negative Rating Event (as defined below) also occurs;
and
(B) an independent financial adviser shall have certified in
writing to the Trustee that such Restructuring Event will be
or is, in its opinion, materially prejudicial to the
interests of the Bondholders (a "Negative Certification"),
then, unless at any time the Issuer shall have given a notice under
Condition 8(b) in respect of the Bonds in whole or in part or Condition
8(c) in respect of all of the Bonds, in each case expiring prior to the
Put Date (as defined below), the holder of each Bond will, upon the
giving of a Put Event Notice (as defined below), have the option (the
"Put Option") to require the Issuer to redeem or, at the option of the
Issuer, purchase (or procure the purchase of) that Bond on the Put Date
at its principal amount together with (or, where purchased, together
with an amount equal to) interest (if any) accrued to (but excluding)
the Put Date.
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A Restructuring Event shall be deemed not to be materially prejudicial
to the interests of the Bondholders if, notwithstanding the occurrence
of a Rating Downgrade, the rating assigned to the Rated Securities by
any Rating Agency (as defined below) is subsequently increased to an
investment grade rating (BBB-/Baa3 or their respective equivalents for
the time being, or better) prior to any Negative Certification being
issued.
Any certification by an independent financial adviser as aforesaid as
to whether or not, in its opinion, any Restructuring Event will be or
is materially prejudicial to the interests of the Bondholders shall, in
the absence of manifest error, be conclusive and binding on the
Trustee, the Issuer, the Guarantor and the Bondholders. For the
purposes of this Condition 9, an "independent financial adviser" means
a financial adviser appointed by the Issuer and the Guarantor and
approved by the Trustee (such approval not to be unreasonably withheld
or delayed) or, if the Issuer and the Guarantor shall not have
appointed such an adviser within 21 days after becoming aware of the
occurrence of such Restructuring Event and the Trustee is indemnified
to its satisfaction against the costs of such adviser, appointed by the
Trustee following consultation with the Issuer.
(b) Promptly upon the Issuer becoming aware that a Put Event (as defined
below) has occurred, and in any event not later than 14 days after the
occurrence of a Put Event, the Issuer shall, and at any time upon the
Trustee becoming similarly so aware the Trustee may, and if so
requested by the holders of at least one-quarter in principal amount of
the Bonds then outstanding shall, give notice (a "Put Event Notice") to
the Bondholders in accordance with Condition 16 specifying the nature
of the Put Event and the procedure for exercising the Put Option.
(c) To exercise the Put Option, the holder of a Bond must deliver such
Bond to the specified office of any Paying Agent, on a day which is a
Business Day (as defined in Condition 7) in London and in the place of
such specified office falling within the period (the "Put Period") of
45 days after that on which a Put Event Notice is given, accompanied
by a duly completed and signed notice of exercise in the form (for the
time being current) obtainable from any specified office of any Paying
Agent (a "Put Notice") and in which the holder may specify a bank
account complying with the requirements of Condition 7 to which
payment is to be made under this Condition 9. Each Bearer Bond should
be delivered together with all Coupons appertaining thereto maturing
after the day (the "Put Date") being the fifteenth day after the date
of expiry of the Put Period, failing which an amount equal to the face
value of any such missing Coupon will be deducted from the amount due
for payment. Each amount so deducted will be paid in the manner
provided in Condition 7 against presentation and surrender (or, in the
case of part payment only, endorsement) of the relevant missing Coupon
at any time before the expiry of 10 years after the Relevant Date in
respect of the relevant Bearer Bond (whether or not the Coupon would
otherwise have become void pursuant to Condition 11) or, if later,
five years after the date on which such Coupon would have become due,
but not thereafter. The Paying Agent to which such Bond and Put Notice
are delivered shall issue to the Bondholder concerned a
non-transferable receipt in respect of the Bond so delivered. Payment
in respect of any Bond so delivered shall be made, if the holder duly
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specifies a bank account in the Put Notice to which payment is to be
made on the Put Date, by transfer to that bank account and, in every
other case, on or after the Put Date in each case against presentation
and surrender or (as the case may be) endorsement of such receipt at
any specified office of any Paying Agent, subject in any such case as
provided in Condition 7. A Put Notice, once given, shall be
irrevocable. For the purposes of Conditions 1, 11, 12, 13, 15 and 17
and for certain other purposes specified in the Trust Deed, receipts
issued pursuant to this Condition 9 shall be treated as if they were
Bonds. The Issuer shall redeem or, at the option of the Issuer,
purchase (or procure the purchase of) the relevant Bond on the
applicable Put Date unless previously redeemed or purchased.
(d) For the purposes of these Terms and Conditions:
(i) A "Negative Rating Event" shall be deemed to have occurred if
(A) the Issuer does not either prior to or not later than 14
days after the date of a Negative Certification in respect of
the relevant Restructuring Event, seek, and thereupon use all
reasonable endeavours to obtain, a rating of the Bonds or any
other unsecured and unsubordinated debt of the Issuer (or of
any Subsidiary of the Guarantor and which is guaranteed on an
unsecured and unsubordinated basis by the Guarantor) having an
initial maturity of five years or more from a Rating Agency or
(B) if it does so seek and use such endeavours, it is unable,
as a result of such Restructuring Event, to obtain such a
rating of at least investment grade (BBB-/Baa3, or their
respective equivalents for the time being).
(ii) A "Put Event" occurs on the date of the last to occur of (aa)
a Restructuring Event, (bb) either a Rating Downgrade or, as
the case may be, a Negative Rating Event and (cc) the relevant
Negative Certification.
(iii) "Rating Agency" means Standard & Poor's Ratings Group or any
of its successors or Moody's Investors Service or any of its
successors or any rating agency substituted for either of them
(or any permitted substitute of them) by the Issuer from time
to time with the prior written approval of the Trustee (such
approval not to be unreasonably withheld or delayed).
(iv) A "Rating Downgrade" shall be deemed to have occurred in
respect of a Restructuring Event if the then current rating
assigned to the Rated Securities by any Rating Agency (whether
provided by a Rating Agency at the invitation of the Issuer or
by its own volition) is withdrawn or reduced from an
investment grade rating (BBB-/Baa3, or their respective
equivalents for the time being, or better) to a non-investment
grade rating (BB+/Ba1, or their respective equivalents for the
time being, or worse) or, if the Rating Agency shall then have
already rated the Rated Securities below investment grade (as
described above), the rating is lowered one full rating
category.
(v) "Rated Securities" means the Bonds, if at any time and for so
long as they shall have a rating from a Rating Agency, and
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otherwise any other unsecured and unsubordinated debt of the
Issuer (or of any Subsidiary of the Guarantor and which is
guaranteed on an unsecured and unsubordinated basis by the
Guarantor or the Issuer) having an initial maturity of five
years or more which is rated by a Rating Agency.
(vi) "Restructuring Event" means the occurrence of any one or more
of the following events:
(A) (aa) the Secretary of State for Trade and Industry (or
any successor) giving the Issuer or any Distribution
Subsidiary written notice of revocation of the
Distribution Licence or (bb) the Issuer or any
Distribution Subsidiary agreeing in writing with the
Secretary of State for Trade and Industry (or any
successor) to any revocation or surrender of the
Distribution Licence or (cc) any legislation (whether
primary or subordinate) being enacted terminating or
revoking the Distribution Licence, except in any such
case in circumstances where a licence or licences on
substantially no less favourable terms is or are
granted to the Issuer or a wholly-owned Subsidiary of
the Issuer (the "Relevant Subsidiary") and in the case
of such Relevant Subsidiary at the time of such grant
it either executes in favour of the Trustee an
unconditional and irrevocable guarantee in respect of
the Bonds in such form as the Trustee may approve (such
approval not to be unreasonably withheld or delayed) or
becomes the primary obligor under the Bonds in
accordance with Condition 14; or
(B) any modification (other than a modification which is of
a formal, minor or technical nature) being made to the
terms and conditions of the Distribution Licence on or
after 1st October, 2001 unless two directors of the
Guarantor have certified in good faith to the Trustee
that the modified terms and conditions are not
materially less favourable to the business of the
Guarantor; or
(C) any legislation (whether primary or subordinate) is
enacted which removes, qualifies or amends (other than
an amendment which is of a formal, minor or technical
nature) the duties of the Secretary of State for Trade
and Industry (or any successor) and/or the Gas and
Electricity Markets Authority (or any successor) under
Section 3 of the Electricity Act 1989, as amended by
the Utilities Act 2000, unless two directors of the
Guarantor have certified in good faith to the Trustee
that such removal, qualification or amendment does not
have a materially adverse effect on the financial
condition of the Guarantor.
(vii) "Restructuring Period" means:
(A) if at the time a Restructuring Event occurs there are
Rated Securities, the period of 90 days starting from
and including the day on which that Restructuring Event
occurs; or
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(B) if at the time a Restructuring Event occurs there are
no Rated Securities, the period staffing from and
including the day on which that Restructuring Event
occurs and ending on the day 90 days following the
later of (aa) the date on which the Issuer shall seek
to obtain a rating pursuant to Condition 9(d)(i) prior
to the expiry of the 14 days referred to in the
definition of Negative Rating Event and (bb) the date
on which a Negative Certification shall have been given
to the Issuer in respect of that Restructuring Event.
(viii) A Rating Downgrade or a Negative Rating Event or a
non-investment grade rating shall be deemed not to have
occurred as a result or in respect of a Restructuring Event
if the Rating Agency making the relevant reduction in rating
or, where applicable, declining to assign a rating of at
least investment grade as provided in this Condition 9 does
not announce or publicly confirm or inform the Trustee in
writing at its request that the reduction or, where
applicable, declining to assign a rating of at least
investment grade was the result, in whole or in part, of any
event or circumstance comprised in or arising as a result of
the applicable Restructuring Event.
The Trust Deed provides that the Trustee is under no obligation to
ascertain whether a Restructuring Event, a Negative Rating Event or any
event which could lead to the occurrence of or could constitute a
Restructuring Event has occurred and until it shall have actual
knowledge or express notice pursuant to the Trust Deed to the contrary
the Trustee may assume that no Restructuring Event, Negative Rating
Event or other such event has occurred.
10. Taxation
All payments in respect of the Bonds or the Guarantee by the Issuer or,
as the case may be, the Guarantor shall be made without withholding or
deduction for, or on account of, any present or future taxes, duties,
assessments or governmental charges of whatever nature ("Taxes")
imposed or levied by or on behalf of the United Kingdom, or any
political sub-division of, or any authority in, or of, the United
Kingdom having power to tax, unless the withholding or deduction of the
Taxes is required by law. In that event, the Issuer or, as the case may
be, the Guarantor will pay such additional amounts as may be necessary
in order that the net amounts received by the Bondholders and
Couponholders after the withholding or deduction shall equal the
respective amounts which would have been receivable in respect of the
Bonds or, as the case may be, Coupons in the absence of the withholding
or deduction; except that no additional amounts shall be payable in
relation to any payment in respect of any Bond or Coupon:
(a) to, or to a third party on behalf of, a holder who is liable
to the Taxes in respect of the Bond or Coupon by reason of his
having some connection with the United Kingdom other than the
mere holding of the Bond or Coupon; or
(b) where the Coupon is presented for payment in the United
Kingdom; or
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(c) presented for payment more than 30 days after the Relevant
Date except to the extent that a holder would have been
entitled to additional amounts on presenting the same for
payment on the last day of such period of 30 days; or
(d) to, or to a third party on behalf of, a holder who would not
be liable or subject to the withholding or deduction by making
a declaration of non-residence or other similar claim for
exemption to the relevant tax authority; or
(e) where the withholding or deduction is imposed on payment to an
individual and is required to be made pursuant to any European
Union Directive on the taxation of savings implementing the
conclusions of the ECOFIN Council meeting of 26-27 November
2000 or any law implementing or complying with, or introduced
in order to conform to, such Directive; or
(f) presented for payment by or on behalf of a holder who would
have been able to avoid the withholding or deduction by
presenting the relevant Bond or Coupon to another Paying Agent
in a Member State of the EU.
As used herein, "Relevant Date" means the date on which the payment
first becomes due but, if the full amount of the money payable has not
been received in London by the Principal Paying Agent or the Trustee on
or before the due date, it means the date on which, the full amount of
the money having been so received, notice to that effect shall have
been duly given to the Bondholders by the Issuer in accordance with
Condition 16.
Any reference in these Terms and Conditions to any amounts in respect
of the Bonds shall be deemed also to refer to any additional amounts
which may be payable under this Condition or under any undertakings
given in addition to, or in substitution for, this Condition pursuant
to the Trust Deed.
11. Prescription
Bonds (whether in bearer or registered form) and Coupons (which for
this purpose shall not include Talons) will become void unless
presented for payment within periods of 10 years (in the case of
principal) and five years (in the case of interest) from the Relevant
Date in respect of the Bonds or, as the case may be, the Coupons,
subject to the provisions of Condition 7. There shall not be included
in any Coupon sheet issued upon exchange of a Talon any Coupon which
would be void upon issue under this Condition or Condition 7.
12. Events of Default
The Trustee at its discretion may, and if so requested in writing by
the holders of at least one-quarter in principal amount of the Bonds
then outstanding or if so directed by an Extraordinary Resolution of
the Bondholders shall, (but, in the case of the happening of any of the
events mentioned in sub-paragraphs (b), (c), (e), (f) and (g) below,
75
only if the Trustee shall have certified in writing to the Issuer that
such event is, in its opinion, materially prejudicial to the interests
of the Bondholders and subject in each case to being indemnified by, or
on behalf of, Bondholders to its satisfaction), give notice to the
Issuer that the Bonds are, and they shall accordingly thereby forthwith
become, immediately due and repayable at their principal amount
together with accrued interest (as provided in the Trust Deed) if any
of the following events (each an "Event of Default") shall have
occurred (unless such Event of Default has been remedied to the
satisfaction of the Trustee):
(a) if default is made for a period of 14 days or more in the
payment of any principal or the purchase price due in respect
of any Bond pursuant to Condition 9 or 21 days or more in the
payment of any interest due in respect of the Bonds or any of
them; or
(b) if the Issuer fails to perform or observe any of its other
obligations, covenants, conditions or provisions under the
Bonds or the Trust Deed and (except where the Trustee shall
have certified to the Issuer in writing that it considers such
failure to be incapable of remedy in which case no such notice
or continuation as is hereinafter mentioned will be required)
such failure continues for the period of 60 days (or such
longer period as the Trustee may in its absolute discretion
permit) next following the service by the Trustee on the
Issuer of notice requiring the same to be remedied; or
(c) if (i) any other indebtedness for borrowed money of the
Issuer becomes due and repayable prior to its stated
maturity by reason of an event of default (howsoever
described) or (ii) any such indebtedness for borrowed money
is not paid when due or, as the case may be, within any
applicable grace period (as originally provided) or (iii)
the Issuer fails to pay when due (or, as the case may be,
within any originally applicable grace period) any amount
payable by it under any present or future guarantee for, or
indemnity in respect of, any indebtedness for borrowed money
of any person or (iv) any security given by the Issuer for
any indebtedness for borrowed money of any person or any
guarantee or indemnity of indebtedness for borrowed money of
any person becomes enforceable by reason of default in
relation thereto and steps are taken to enforce such
security save in any such case where there is a bona fide
dispute as to whether the relevant indebtedness for borrowed
money or any such guarantee or indemnity as aforesaid shall
be due and payable, provided that the aggregate amount of
the relevant indebtedness for borrowed money in respect of
which any one or more of the events mentioned above in this
sub-paragraph (c) has or have occurred equals or exceeds
whichever is the greater of(pound)20,000,000 or its
equivalent in other currencies (as determined by the
Trustee) or 2 per cent. of the Capital and Reserves, and for
the purposes of this sub-paragraph (c), "indebtedness for
borrowed money" shall exclude Project Finance Indebtedness
and "Capital and Reserves" shall be determined as if, in the
definition in clause (A) of Condition 5, the word "Issuer"
appeared in place of the word "Guarantor" and the terms
"Group" and "Subsidiary Undertakings" shall be determined
with reference to the Issuer rather than the Guarantor; or
76
(d) if any order shall be made by any competent court or any
resolution shall be passed for the winding up or dissolution
of the Issuer, save for the purposes of amalgamation, merger,
consolidation, reorganisation, reconstruction or other similar
arrangement on terms previously approved in writing by the
Trustee or by an Extraordinary Resolution of the Bondholders;
or
(e) if the Issuer shall cease to carry on the whole or
substantially the whole of its business, save for the purposes
of amalgamation, merger, consolidation, reorganisation,
reconstruction or other similar arrangement (i) under which
all or substantially all of its assets are transferred to a
third party or parties (whether associates or not) for full
consideration by the Issuer on an arm's length basis or
(ii) the terms of which have previously been approved in
writing by the Trustee or by an Extraordinary Resolution of
the Bondholders, provided that if the Issuer shall cease to
hold or shall transfer the Distribution Licence it shall be
deemed to have ceased to carry on the whole or substantially
the whole of its business (and exception (i) does not
apply) unless the transferee assumes all the Issuer's
obligations under the Bonds and the Trust Deed as primary
obligor or gives a guarantee in form and substance
acceptable to the Trustee in respect of the obligations of
the Issuer under the Bonds and the Trust Deed; or
(f) if the Issuer shall suspend or shall threaten to suspend
payment of its debts generally or shall be declared or
adjudicated by a competent court to be unable, or shall admit
in writing its inability, to pay its debts (within the meaning
of Section 123(1) or (2) of the Insolvency Act 1986) as they
fall due, or shall be adjudicated or found insolvent by a
competent court or shall enter into any composition or other
similar arrangement with its creditors under Section 1of the
Insolvency Act 1986; or
(g) if a receiver, administrative receiver, administrator or other
similar official shall be appointed in relation to the Issuer
or in relation to the whole or a substantial part of the
undertaking or assets of any of them or a distress, execution
or other process shall be levied or enforced upon or sued out
against, or an encumbrancer shall take possession of, the
whole or a substantial part of the assets or any of them and
in any of the foregoing cases it or he shall not be paid out
or discharged within 90 days (or such longer period as the
Trustee may in its absolute discretion permit).
For the purposes of sub-paragraph (f) above, Section 123(l)(a) of the
Insolvency Act 1986 shall have effect as if for "(pound)750" there was
substituted "(pound)250,000" or such higher figure as the Gas and
Electricity Markets Authority (or any successor) may from time to time
determine by notice in writing to the Secretary of State for Trade and
Industry (or any successor).
The Issuer shall not be deemed to be unable to pay its debts for the
purposes of sub-paragraph (f) above if any such demand as is mentioned
77
in Section 123(1)(a) of the Insolvency Act 1986 is being contested in
good faith by the Issuer with recourse to all appropriate measures and
procedures or if any such demand is satisfied before the expiration of
such period as may be stated in any notice given by the Trustee under
the first paragraph of this Condition 11.
13. Enforcement
The Trustee may at any time, at its discretion and without notice, take
such proceedings against the Issuer or the Guarantor as it may think
fit to enforce the provisions of the Trust Deed, the Bonds and the
Coupons but it shall not be bound to take any proceedings or any other
action in relation to the Trust Deed, the Bonds or the Coupons unless
(a) it shall have been so directed by an Extraordinary Resolution of
the Bondholders or so requested in writing by the holders of at least
one-quarter in principal amount of the Bonds then outstanding, and (b)
it shall have been indemnified to its satisfaction. No Bondholder or
Couponholder shall be entitled to proceed directly against the Issuer
or the Guarantor unless the Trustee, having become bound so to proceed,
fails so to do within a reasonable period and such failure shall be
continuing.
14. Substitution
The Trustee may, without the consent of the Bondholders or
Couponholders, agree with the Issuer and the Guarantor to the
substitution in place of the Issuer or the Guarantor (or, in either
case, of any previous substitute under this Condition) as the principal
debtor under or, as the case may be, guarantor in respect of, the
Bonds, the Coupons and the Trust Deed of any Subsidiary of the Issuer
(including a Relevant Subsidiary, as defined in, and subject to
compliance with Condition 9(d)(vi)) or the Guarantor, subject to (a)
the Bonds being unconditionally and irrevocably guaranteed by the
Issuer (save where the Issuer has transferred the Distribution Licence
to the substituted Subsidiary) or the Guarantor, (b) the Trustee being
satisfied that the interests of the Bondholders will not be materially
prejudiced by the substitution, and (c) certain other conditions set
out in the Trust Deed being complied with.
15. Replacement of Bonds and Coupons
Should any Bond or Coupon be lost, stolen, mutilated, defaced or
destroyed, it may be replaced at the specified office of the Paying
Agent in London, in the case of a Bearer Bond or Coupon, or the
Registrar, in the case of a Registered Bond, upon payment by the
claimant of the expenses incurred in connection with the replacement
and on such terms as to evidence and indemnity as the Issuer may
reasonably require. Mutilated or defaced Bonds or Coupons must be
surrendered before replacements will be issued.
16. Notices
Notices to holders of Registered Bonds will be mailed to them at their
respective addresses in the Register and deemed to have been given on
the fourth weekday after the date of mailing, provided that, if at any
time by reason of suspension or curtailment (or expected suspension or
79
curtailment) of postal services within the United Kingdom or elsewhere,
the Issuer is unable effectively to give notice to holders of
Registered Bonds through the post, notices to holders of Registered
Bonds will be valid if given in the same manner as other notices set
out below.
Other notices to the Bondholders will be valid if published in a
leading English language daily newspaper published in London or such
other English language daily newspaper with general circulation in
Europe as the Trustee may approve. Any notice shall be deemed to have
been given on the date of publication or, if so published more than
once, on the date of the first publication. It is expected that
publication will normally be made in the Financial Times. If
publication as provided above is not practicable, notice will be given
in such other manner, and shall be deemed to have been given on such
date, as the Trustee may approve.
Couponholders will be deemed for all purposes to have notice of the
contents of any notice given to the Bondholders in accordance with this
Condition.
17. Meetings of Bondholders, Modification, Waiver and Authorisation
(a) The Trust Deed contains provisions for convening meetings of the
Bondholders to consider any matter affecting their interests,
including the modification by Extraordinary Resolution of these Terms
and Conditions or the provisions of the Trust Deed. The quorum at any
meeting for passing an Extraordinary Resolution will be one or more
persons present holding or representing a clear majority in principal
amount of the Bonds for the time being outstanding, or at any
adjourned such meeting one or more persons present whatever the
principal amount of the Bonds held or represented by him or them,
except that at any meeting, the business of which includes the
modification of certain of the provisions of these Terms and
Conditions and certain of the provisions of the Trust Deed, the
necessary quorum for passing an Extraordinary Resolution will be one
or more persons present holding or representing not less than
two-thirds, or at any adjourned such meeting not less than one-third,
of the principal amount of the Bonds for the time being outstanding.
An Extraordinary Resolution passed at any meeting of the Bondholders
will be binding on all Bondholders, whether or not they are present at
the meeting, and on all Couponholders.
(b) The Trustee may agree, without the consent of the Bondholders or
Couponholders, to any modification (subject to certain exceptions) of,
or to the waiver or authorisation of any breach or proposed breach of,
any of these Terms and Conditions or any of the provisions of the Trust
Deed which is not, in the opinion of the Trustee, materially
prejudicial to the interests of the Bondholders or to any modification
which is of a formal, minor or technical nature or to correct a
manifest error.
(c) In connection with the exercise by it of any of its trusts, powers,
authorities or discretions (including, without limitation, any
modification, waiver, authorisation or substitution), the Trustee
shall have regard to the interests of the Bondholders as a class and,
in particular but without limitation, shall not have regard to the
79
consequences of the exercise of its trusts, powers, authorities or
discretions for individual Bondholders and Couponholders resulting
from their being for any purpose domiciled or resident in, or
otherwise connected with, or subject to the jurisdiction of, any
particular territory and the Trustee shall not be entitled to require,
nor shall any Bondholder or Couponholder be entitled to claim, from
the Issuer, the Trustee or any other person any indemnification or
payment in respect of any tax consequences of any such exercise upon
individual Bondholders or Couponholders except to the extent already
provided for in Condition 10 and/or any undertaking given in addition
to, or in substitution for, Condition 10 pursuant to the Trust Deed.
(d) Any modification, waiver or authorisation shall be binding on the
Bondholders and the Couponholders and, unless the Trustee agrees
otherwise, any modification shall be notified by the Issuer to the
Bondholders as soon as practicable thereafter in accordance with
Condition 16.
18. Indemnification of the Trustee
The Trust Deed contains provisions for the indemnification of the
Trustee and for its relief from responsibility, including provisions
relieving it from taking action unless indemnified to its satisfaction.
19. Further Issues
The Issuer is at liberty from time to time without the consent of the
Bondholders or Couponholders to create and issue further bonds or notes
(whether in bearer or registered form) either (a) ranking pari passu in
all respects (or in all respects save for the first payment of interest
thereon) and so that the same shall be consolidated and form a single
series with the outstanding bonds or notes of any series (including the
Bonds) constituted by the Trust Deed or any supplemental deed or (b)
upon such terms as to ranking, interest, conversion, redemption and
otherwise as the Issuer may determine at the time of the issue. Any
further bonds or notes which are to form a single series with the
outstanding bonds or notes of any series (including the Bonds).
constituted by the Trust Deed or any supplemental deed shall, and any
other further bonds or notes may (with the consent of the Trustee), be
constituted by a deed supplemental to the Trust Deed. The Trust Deed
contains provisions for convening a single meeting of the Bondholders
and the holders of bonds or notes of other series in certain
circumstances where the Trustee so decides.
20. Contracts (Rights of Third Parties) Act 1999
No rights are conferred on any person under the Contracts (Rights of
Third Parties) Act 1999 to enforce any term of this Bond, but this does
not affect any right or remedy of a third party which exists or is
available apart from that Act.
21. Governing Law
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The Trust Deed, the Bonds and the Coupons are governed by, and will be
construed in accordance with, English law.
81
PRINCIPAL PAYING AGENT
CITIBANK, N.A.
5 Carmelite Street
London EC4Y OPA
Telephone: 020 7508 3841
Fax: 020 7508 3878
Attention: Agency and Trust
OTHER PAYING AGENT
BNP PARIBAS LUXEMBOURG
10A Boulevard Royal
L-2093 Luxembourg
REGISTRAR
COMPUTERSHARE SERVICES PLC
The Pavilions
Bridgewater Road
Bristol
BS99 7NH
and/or such other or further Principal Paying Agent, other Paying Agents and
Registrar and/or specified offices as may from time to time be appointed by the
Issuer or the Guarantor with the approval of the Trustee and notice of which has
been given to the Bondholders.
82
THE THIRD SCHEDULE
REGISTER AND TRANSFER OF REGISTERED SECURITIES
1. The Issuer shall at all times ensure that the Registrar maintains in
Bristol, London, or at such other place as the Trustee may agree, a
register showing the amount of the Registered Securities from time to
time outstanding and the dates of issue and all subsequent transfers
and changes of ownership thereof and the names and addresses of the
holders of the Registered Securities. The Trustee and the holders of
the Registered Securities or any of them and any person authorised by
it or any of them may at all reasonable times during office hours
inspect the register and take copies of or extracts from it. The
register may be closed by the Issuer for such periods at such times
(not exceeding in total 30 days in any one year) as it may think fit.
2. Each Registered Security shall have an identifying certificate number
which shall be entered on the register.
3. The Registered Securities are transferable by execution of the form of
transfer endorsed thereon under the hand of the transferor or, where
the transferor is a corporation, under its common seal or under the
hand of two of its officers duly authorised in writing. In each case
the signature(s) must be guaranteed by a commercial bank with a
correspondent bank in New York City, Luxembourg or London or by an
institution which is a member of The New York Stock Exchange or The
American Stock Exchange in New York City or the Luxembourg Stock
Exchange or The International Stock Exchange of the United Kingdom and
the Republic of Ireland Limited.
4. The Registered Securities to be transferred must be delivered for
registration to the specified office of the Registrar or any Transfer
Agent with the form of transfer endorsed thereon duly completed and
executed and must be accompanied by such documents, evidence and
information as may be required pursuant to the Conditions and such
other evidence as the Issuer may reasonably require to prove the title
of the transferor or his right to transfer the Registered Securities
and, if the form of transfer is executed by some other person on his
behalf or in the case of the execution of a form of transfer on behalf
of a corporation by its officers, the authority of that person or those
persons to do so.
5. The executors or administrators of a deceased holder of Registered
Securities (not being one of several joint holders) and in the case of
the death of one or more of several joint holders the survivor or
survivors of such joint holders shall be the only person or persons
recognised by the Issuer as having any title to such Registered
Securities.
6. Any person becoming entitled to Registered Securities in consequence of
the death or bankruptcy of the holder of such Registered Securities may
upon producing such evidence that he holds the position in respect of
which he proposes to act under this paragraph or of his title as the
Issuer shall require be registered himself as the holder of such
Registered Securities or, subject to the preceding paragraphs as to
transfer, may transfer such Registered Securities. The Issuer shall be
at liberty to retain any amount payable upon the Registered Securities
83
to which any person is so entitled until such person shall be
registered as aforesaid or shall duly transfer the Registered
Securities.
7. Unless otherwise requested by him, the holder of Registered Securities
of any series shall be entitled to receive only one Registered Security
in respect of his entire holding of such series.
8. The joint holders of Registered Securities of any series shall be
entitled to one Registered Security only in respect of their joint
holding of such series which shall, except where they otherwise direct,
be delivered to the joint holder whose name appears first in the
register of the holders of Registered Securities in respect of such
joint holding.
9. Where a holder of Registered Securities has transferred part only of
his holding of any series there shall be delivered to him without
charge a Registered Security in respect of the balance of such holding.
10. The Issuer shall make no charge to the Holders for the registration of
any holding of Registered Securities or any transfer thereof or for the
issue thereof or for the delivery thereof at the specified office of
the Registrar or of any Transfer Agent or by post to the address
specified by the Holder. If any Holder entitled to receive a Registered
Security wishes to have the same delivered to him otherwise than at the
specified office of the Registrar or of any Transfer Agent, such
delivery shall be made, upon his written request to the Registrar or
such Transfer Agent, at his risk and (except where sent by post to the
address specified by the Holder) at his expense.
11. The holder of a Registered Security may (to the fullest extent
permitted by applicable laws) be treated at all times, by all persons
and for all purposes as the absolute owner of such Registered Security
notwithstanding any notice any person may have of the right, title,
interest or claim of any other person thereto. The Issuer and the
Trustee shall not be bound to see to the execution of any trust to
which any Registered Security may be subject and no notice of any trust
shall be entered on the register. The holder of a Registered Security
will be recognised by the Issuer as entitled to his Registered Security
free from any equity, set-off or counterclaim on the part of the Issuer
against the original or any intermediate holder of such Registered
Security.
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THE FOURTH SCHEDULE
PROVISIONS FOR MEETINGS OF HOLDERS
1. (A)
As used in this Schedule the following expressions shall have
the following meanings unless the context otherwise requires:
(i) "voting certificate" shall mean an English language
certificate issued by a Paying Agent and dated in which it
is stated:
(a) that on the date thereof Bearer Securities (not being
Bearer Securities in respect of which a block voting
instruction has been issued and is outstanding in
respect of the meeting specified in such voting
certificate or any adjourned such meeting) were
deposited with such Paying Agent or (to the
satisfaction of such Paying Agent) were held to its
order or under its control and that no such Bearer
Securities will cease to be so deposited or held until
the first to occur of:
(1) the conclusion of the meeting specified in such
certificate or, if later, of any adjourned such
meeting; and
(2) the surrender of the certificate to the Paying
Agent who issued the same; and
(b) that the bearer thereof is entitled to attend and vote
at such meeting and any adjourned such meeting in
respect of the Bearer Securities represented by such
certificate;
(ii) "block voting instruction" shall mean an English language
document issued by a Paying Agent and dated in which:
(a) it is certified that Bearer Securities (not being
Bearer Securities in respect of which a voting
certificate has been issued and is outstanding in
respect of the meeting specified in such block voting
instruction and any adjourned such meeting) have been
deposited with such Paying Agent or (to the
satisfaction of such Paying Agent) were held to its
order or under its control and that no such Bearer
Securities will cease to be so deposited or held until
the first to occur of:
(1) the conclusion of the meeting specified in such
document or, if later, of any adjourned such
meeting; and
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(2) the surrender to the Paying Agent not less than 48
hours before the time for which such meeting or
any adjourned such meeting is convened of the
receipt issued by such Paying Agent in respect of
each such deposited Bearer Security which is to
be released or (as the case may require) the
Bearer Security or Bearer Securities ceasing
with the agreement of the Paying Agent to be held
to its order or under its control and the giving
of notice by the Paying Agent to the Issuer in
accordance with paragraph 17 hereof of the
necessary amendment to the block voting
instruction;
(b) it is certified that each holder of such
Bearer Securities has instructed such Paying
Agent that the vote(s) attributable to the
Bearer Security or Bearer Securities so
deposited or held should be cast in a
particular way in relation to the resolution
or resolutions to be put to such meeting or
any adjourned such meeting and that all such
instructions are during the period
commencing 48 hours prior to the time for
which such meeting or any adjourned such
meeting is convened and ending at the
conclusion or adjournment thereof neither
revocable nor capable of amendment;
(c) the aggregate principal amount of the Bearer
Securities so deposited or held are listed
distinguishing with regard to each such
resolution between those in respect of which
instructions have been given as aforesaid
that the votes attributable thereto should
be cast in favour of the resolution and
those in respect of which instructions have
been so given that the votes attributable
thereto should be cast against the
resolution; and
(d) one or more persons named in such document
(each hereinafter called a "proxy") is or
are authorised and instructed by such Paying
Agent to cast the votes attributable to the
Bearer Securities so listed in accordance
with the instructions referred to in (c)
above as set out in such document;
(iii) "24 hours" shall mean a period of 24 hours including
all or part of a day upon which banks are open for
business in both the place where the relevant meeting
is to be held and in each of the places where the
Paying Agents have their specified offices
(disregarding for this purpose the day upon which
such meeting is to be held) and such period shall be
extended by one period or, to the extent necessary,
more periods of 24 hours until there is included as
aforesaid all or part of a day upon which banks are
open for business in all of the places as aforesaid;
and
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(iv) "48 hours" shall mean a period of 48 hours including
all or part of two days upon which banks are open for
business both in the place where the relevant meeting
is to be held and in each of the places where the
Paying Agents have their specified offices
(disregarding for this purpose the day upon which
such meeting is to be held) and such period shall be
extended by one period or, to the extent necessary,
more periods of 24 hours until there is included as
aforesaid all or part of two days upon which banks
are open for business in all of the places as
aforesaid.
(B) A holder of a Bearer Security may obtain a voting certificate in
respect of such Bearer Security from a Paying Agent or require a
Paying Agent to issue a block voting instruction in respect of such
Bearer Security by depositing such Bearer Security with such Paying
Agent or (to the satisfaction of such Paying Agent) by such Bearer
Security being held to its order or under its control, in each case
not less than 48 hours before the time fixed for the relevant meeting
and on the terms set out in sub-paragraph (i)(a) or (ii)(a) above (as
the case may be), and (in the case of a block voting instruction)
instructing such Paying Agent to the effect set out in sub-paragraph
(ii)(b) above. The holder of any voting certificate or the proxies
named in any block voting instruction shall for all purposes in
connection with the relevant meeting or adjourned meeting of Holders
be deemed to be the holder of the Bearer Securities to which such
voting certificate or block voting instruction relates and the Paying
Agent with which such Bearer Securities have been deposited or the
person holding the same to the order or under the control of such
Paying Agent shall be deemed for such purposes not to be the holder of
those Bearer Securities.
(C) (i) A holder of Registered Securities may, by an instrument
in writing in the English language (a "form of proxy")
signed by the holder or, in the case of a corporation,
executed under its common seal or signed on its behalf by an
attorney or a duly authorised officer of the corporation and
delivered to the specified office of the Registrar not less
than 48 hours before the time fixed for the relevant
meeting, appoint any person (a "proxy") to act on his or its
behalf in connection with any meeting of the Holders and any
adjourned such meeting.
(ii) Any holder of Registered Securities which is a corporation
may by resolution of its directors or other governing body
authorise any person to act as its representative (a
"representative") in connection with any meeting of the
Holders and any adjourned such meeting.
(iii) Any proxy appointed pursuant to sub-paragraph (i) above or
representative appointed pursuant to sub-paragraph (ii)
above shall so long as such appointment remains in force be
deemed, for all purposes in connection with the relevant
meeting or adjourned meeting of the Holders, to be the
holder of the Registered Securities to which such
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appointment relates and the holder of the Registered
Securities shall be deemed for such purposes not to be the
holder.
2. The Issuer, the Guarantor or the Trustee may at any time and the Issuer
shall upon a requisition in writing signed by the holders of not less
than one-tenth in principal amount of the Securities of any series for
the time being outstanding convene a meeting of the Holders and if the
Issuer makes default for a period of seven days in convening such a
meeting the same may be convened by the Trustee or the requisitionists.
Every such meeting shall be held at such time and place as the Trustee
may appoint or approve.
3. At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the meeting is to be held) specifying the
place, day and hour of meeting shall be given to the Holders prior to
any meeting of the Holders in the manner provided by Condition 16.
Such notice, which shall be in the English language, shall state
generally the nature of the business to be transacted at the meeting
thereby convened but (except for an Extraordinary Resolution) it shall
not be necessary to specify in such notice the terms of any resolution
to be proposed. Such notice shall include statements, if applicable,
to the effect that (i) Bearer Securities may, not less than 48 hours
before the time fixed for the meeting, be deposited with Paying Agents
or (to their satisfaction) held to their order or under their control
for the purpose of obtaining voting certificates or appointing proxies
and (ii) the holders of Registered Securities may appoint proxies by
executing and delivering a form of proxy in the English language to
the specified office of the Registrar not less than 48 hours before
the time fixed for the meeting or, in the case of corporations, may
appoint representatives by resolution of their directors or other
governing body. A copy of the notice shall be sent by post to the
Trustee (unless the meeting is convened by the Trustee), to the Issuer
(unless the meeting is convened by the Issuer) and to the Guarantor
(unless the meeting is convened by the Guarantor).
4. A person (who may but need not be a Holder) nominated in writing by the
Trustee shall be entitled to take the chair at the relevant meeting or
adjourned meeting but if no such nomination is made or if at any
meeting or adjourned meeting the person nominated shall not be present
within 15 minutes after the time appointed for holding the meeting or
adjourned meeting the Holders present shall choose one of their number
to be Chairman. The Chairman of an adjourned meeting need not be the
same person as was Chairman of the meeting from which the adjournment
took place.
5. At any such meeting one or more persons present holding Securities or
voting certificates or being proxies or representatives and holding or
representing in the aggregate not less than one-twentieth of the
principal amount of the Securities for the time being outstanding
shall (except for the purpose of passing an Extraordinary Resolution)
form a quorum for the transaction of business and no business (other
than the choosing of a Chairman) shall be transacted at any meeting
unless the requisite quorum be present at the commencement of the
relevant business. The quorum at any such meeting for passing an
Extraordinary Resolution shall (subject as provided below) be one or
more persons present holding Securities or voting certificates or
being proxies or representatives and holding or representing in the
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aggregate a clear majority in principal amount of the Securities for
the time being outstanding PROVIDED THAT at any meeting the business
of which includes any of the following matters (each of which shall,
subject only to Clause 19(B)(ii), only be capable of being effected
after having been approved by Extraordinary Resolution) namely:
(i) reduction or cancellation of the amount payable or, where
applicable, modification (except where such modification is,
in the opinion of the Trustee, bound to result in an
increase), of the method of calculating the amount payable or
modification of the date of payment or, where applicable, of
the method of calculating the date of payment in respect of
any principal, premium or interest in respect of the
Securities;
(ii) alteration of the currency in which payments under the
Securities and Coupons are to be made;
(iii) alteration of the majority required to pass an Extraordinary
Resolution;
(iv) the sanctioning of any such scheme or proposal as is described
in paragraph 18(I) below; and
(v) alteration of this proviso or the proviso to paragraph 6
below;
the quorum shall be one or more persons present holding Securities or
voting certificates or being proxies or representatives and holding or
representing in the aggregate not less than two-thirds of the principal
amount of the Securities for the time being outstanding.
6. If within 15 minutes (or such longer period not exceeding 30 minutes
as the Chairman may decide) after the time appointed for any such
meeting a quorum is not present for the transaction of any particular
business, then, subject and without prejudice to the transaction of
the business (if any) for which a quorum is present, the meeting shall
if convened upon the requisition of Holders be dissolved. In any other
case it shall stand adjourned to the same day in the next week (or if
such day is a public holiday the next succeeding business day) at the
same time and place (except in the case of a meeting at which an
Extraordinary Resolution is to be proposed in which case it shall
stand adjourned for such period, being not less than 14 clear days nor
more than 42 clear days, and to such place as may be appointed by the
Chairman either at or subsequent to such meeting and approved by the
Trustee). If within 15 minutes (or such longer period not exceeding 30
minutes as the Chairman may decide) after the time appointed for any
adjourned meeting a quorum is not present for the transaction of any
particular business, then, subject and without prejudice to the
transaction of the business (if any) for which a quorum is present,
the Chairman may either (with the approval of the Trustee) dissolve
such meeting or adjourn the same for such period, being not less than
14 clear days (but without any maximum number of clear days), and to
such place as may be appointed by the Chairman either at or subsequent
to such adjourned meeting and approved by the Trustee, and the
provisions of this sentence shall apply to all further adjourned such
meetings. At any adjourned meeting one or more persons present holding
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Securities or voting certificates or being proxies or representatives
(whatever the principal amount of the Securities so held or
represented by them) shall (subject as provided below) form a quorum
and shall (subject as provided below) have power to pass any
Extraordinary Resolution or other resolution and to decide upon all
matters which could properly have been dealt with at the meeting from
which the adjournment took place had the requisite quorum been present
PROVIDED THAT at any adjourned meeting the quorum for the transaction
of business comprising any of the matters specified in the proviso to
paragraph 5 above shall be one or more persons present holding
Securities or voting certificates or being proxies or representatives
and holding or representing in the aggregate not less than one-third
of the principal amount of the Securities for the time being
outstanding.
7. Notice of any adjourned meeting at which an Extraordinary Resolution is
to be submitted shall be given in the same manner as notice of an
original meeting but as if 10 were substituted for 21 in paragraph 3
above and such notice shall state the relevant quorum. Subject as
aforesaid it shall not be necessary to give any notice of an adjourned
meeting.
8. Every question submitted to a meeting shall be decided in the first
instance by a show of hands and in case of equality of votes the
Chairman shall both on a show of hands and on a poll have a casting
vote in addition to the vote or votes (if any) to which he may be
entitled as a Holder or as a holder of a voting certificate or as a
proxy or as a representative.
9. At any meeting unless a poll is (before or on the declaration of the
result of the show of hands) demanded by the Chairman, the Issuer, the
Guarantor the Trustee or any person present holding a Security or a
voting certificate or being a proxy or representative (whatever the
principal amount of the Securities so held or represented by him) a
declaration by the Chairman that a resolution has been carried or
carried by a particular majority or lost or not carried by a particular
majority shall be conclusive evidence of the fact without proof of the
number or proportion of the votes recorded in favour of or against such
resolution.
10. Subject to paragraph 12 below, if at any such meeting a poll is so
demanded it shall be taken in such manner and subject as hereinafter
provided either at once or after an adjournment as the Chairman directs
and the result of such poll shall be deemed to be the resolution of the
meeting at which the poll was demanded as at the date of the taking of
the poll. The demand for a poll shall not prevent the continuance of
the meeting for the transaction of any business other than the motion
on which the poll has been demanded.
11. The Chairman may with the consent of (and shall if directed by) any
such meeting adjourn the same from time to time and from place to place
but no business shall be transacted at any adjourned meeting except
business which might lawfully (but for lack of required quorum) have
been transacted at the meeting from which the adjournment took place.
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12. Any poll demanded at any such meeting on the election of a Chairman or
on any question of adjournment shall be taken at the meeting without
adjournment.
13. The Trustee and its lawyers and financial advisers and any director,
officer or employee of a corporation being a trustee of these presents
and any director or officer of each of the Issuer or the Guarantor and
its lawyers and its accountants and financial advisers and any other
person authorised so to do by the Trustee may attend and speak at any
meeting. Save as aforesaid, but without prejudice to the proviso to
the definition of "outstanding" in Clause 1, no person shall be
entitled to attend and speak nor shall any person be entitled to vote
at any meeting of the Holders or join with others in requesting the
convening of such a meeting or to exercise the rights conferred on the
Holders by Conditions 12 and 13 unless he either produces the Bearer
Security or Bearer Securities of which he is the holder or a voting
certificate or is a proxy or a representative or is the holder of a
Registered Security or Registered Securities. No person shall be
entitled to vote at any meeting in respect of Securities held by, for
the benefit of, or on behalf of, the Issuer, the Guarantor any other
Subsidiary of the Guarantor, any holding company of the Guarantor or
any other Subsidiary of any such holding company. Nothing herein shall
prevent any of the proxies named in any block voting instruction or
form of proxy or any representative from being a director, officer or
representative of or otherwise connected with the Issuer or the
Guarantor.
14. Subject as provided in paragraph 13 hereof at any meeting:
(A) on a show of hands every person who is present in person and
produces a Bearer Security or voting certificate or is a
holder of Registered Securities or is a proxy or
representative shall have one vote; and
(B) on a poll every person who is so present shall have one vote
in respect of each (pound)1 or such other amount as the
Trustee may in its absolute discretion stipulate (or, in the
case of meetings of holders of Securities denominated in
another currency, such amount in such other currency as the
Trustee in its absolute discretion may stipulate) in principal
amount of the Securities so produced or represented by the
voting certificate so produced or in respect of which he is a
proxy or representative or in respect of which he is the
holder.
Without prejudice to the obligations of the proxies named in any block
voting instruction or form of proxy any person entitled to more than
one vote need not use all his votes or cast all the votes to which he
is entitled in the same way.
15. The proxies named in any block voting instruction or form of proxy and
representatives need not be Holders.
16. Each block voting instruction together (if so requested by the
Trustee) with proof satisfactory to the Trustee of its due execution
on behalf of the relevant Paying Agent and each form of proxy shall be
deposited by the relevant Paying Agent or (as the case may be) by the
Registrar at such place as the Trustee shall approve not less than 24
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hours before the time appointed for holding the meeting or adjourned
meeting at which the proxies named in the block voting instruction or
form of proxy propose to vote and in default the block voting
instruction or form of proxy shall not be treated as valid unless the
Chairman of the meeting decides otherwise before such meeting or
adjourned meeting proceeds to business. A notarially certified copy of
each block voting instruction and form of proxy shall be deposited
with the Trustee before the commencement of the meeting or adjourned
meeting but the Trustee shall not thereby be obliged to investigate or
be concerned with the validity of or the authority of the proxies
named in any such block voting instruction or form of proxy.
17. Any vote given in accordance with the terms of a block voting
instruction or form of proxy shall be valid notwithstanding the
previous revocation or amendment of the block voting instruction or
form of proxy or of any of the Holders' instructions pursuant to which
it was executed provided that no intimation in writing of such
revocation or amendment shall have been received from the relevant
Paying Agent or in the case of a Registered Security from the holder
thereof by the Issuer at its registered office (or such other place as
may have been required or approved by the Trustee for the purpose) by
the time being 24 hours and 48 hours respectively before the time
appointed for holding the meeting or adjourned meeting at which the
block voting instruction or form of proxy is to be used.
18. A meeting of the Holders shall in addition to the powers hereinbefore
given have the following powers exercisable only by Extraordinary
Resolution (subject to the provisions relating to quorum contained in
paragraphs 5 and 6 above) namely:
(A) Power to sanction any compromise or arrangement proposed to be
made between the Issuer, the Guarantor, the Trustee, any
Appointee and the Holders and Couponholders or any of them.
(B) Power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Trustee, any
Appointee, the Holders, the Couponholders. the Issuer or the
Guarantor against any other or others of them or against any
of their property whether such rights shall arise under these
presents or otherwise.
(C) Power to assent to any modification of the provisions of these
presents which shall be proposed by the Issuer, the Guarantor,
the Trustee or any Holder.
(D) Power to give any authority or sanction which under the
provisions of these presents is required to be given by
Extraordinary Resolution.
(E) Power to appoint any persons (whether Holders or not) as a
committee or committees to represent the interests of the
Holders and to confer upon such committee or committees any
powers or discretions which the Holders could themselves
exercise by Extraordinary Resolution.
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(F) Power to approve of a person to be appointed a trustee and
power to remove any trustee or trustees for the time being of
these presents.
(G) Power to discharge or exonerate the Trustee and/or any
Appointee from all liability in respect of any act or omission
for which the Trustee and/or such Appointee may have become
responsible under these presents.
(H) Power to authorise the Trustee and/or any Appointee to concur
in and execute and do all such deeds, instruments, acts and
things as may be necessary to carry out and give effect to any
Extraordinary Resolution.
(I) Power to sanction any scheme or proposal for the exchange or
sale of the Securities for or the conversion of the Securities
into or the cancellation of the Securities in consideration of
shares, stock, bonds, notes, debentures, debenture stock
and/or other obligations and/or securities of the Issuer or
any other company formed or to be formed, or for or into or in
consideration of cash, or partly for or into or in
consideration of such shares, stock, bonds, notes, debentures,
debenture stock and/or other obligations and/or securities as
aforesaid and partly for or into or in consideration of cash.
19. Any resolution passed at a meeting of the Holders duly convened and
held in accordance with these presents shall be binding upon all the
Holders whether present or not present at such meeting and whether or
not voting and upon all Couponholders and each of them shall be bound
to give effect thereto accordingly and the passing of any such
resolution shall be conclusive evidence that the circumstances justify
the passing thereof. Notice of the result of the voting on any
resolution duly considered by the Holders shall be published in
accordance with Condition 16 by the Issuer within 14 days of such
result being known PROVIDED THAT the non-publication of such notice
shall not invalidate such result.
20. The expression "Extraordinary Resolution" when used in these presents
means a resolution passed at a meeting of the Holders duly convened
and held in accordance with these presents by a majority consisting of
not less than three-fourths of the persons voting thereat upon a show
of hands or if a poll is duly demanded by a majority consisting of not
less than three-fourths of the votes cast on such poll.
21. Minutes of all resolutions and proceedings at every meeting of the
Holders shall be made and entered in books to be from time to time
provided for that purpose by the Issuer and any such Minutes as
aforesaid if purporting to be signed by the Chairman of the meeting at
which such resolutions were passed or proceedings transacted shall be
conclusive evidence of the matters therein contained and until the
contrary is proved every such meeting in respect of the proceedings of
which Minutes have been made shall be deemed to have been duly held
and convened and all resolutions passed or proceedings transacted
thereat to have been duly passed or transacted.
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22. (A) If and whenever the Issuer shall have issued and have
outstanding Securities of more than one series the foregoing
provisions of this Schedule shall have effect subject to the
following modifications:
(i) a resolution which in the opinion of the Trustee
affects the Securities of only one series shall be
deemed to have been duly passed if passed at a
separate meeting of the holders of the Securities of
that series;
(ii) a resolution which in the opinion of the Trustee
affects the Securities of more than one series but
does not give rise to a conflict of interest between
the holders of Securities of any of the series so
affected shall be deemed to have been duly passed if
passed at a single meeting of the holders of the
Securities of all the series so affected;
(iii) a resolution which in the opinion of the Trustee
affects the Securities of more than one series and
gives or may give rise to a conflict of interest
between the holders of the Securities of one series
or group of series so affected and the holders of the
Securities of another series or group of series so
affected shall be deemed to have been duly passed
only if passed at separate meetings of the holders of
the Securities of each series or group of series so
affected; and
(iv) to all such meetings all the preceding provisions of
this Schedule shall mutatis mutandis apply as though
references therein to Securities, Holders and holders
were references to the Securities of the series or
group of series in question or to the holders of such
Securities, as the case may be.
(B) If the Issuer shall have issued and have outstanding
Securities which are not denominated in pounds sterling, in the
case of any meeting of holders of Securities of more than one
currency the principal amount of such Securities shall (i) for
the purposes of paragraph 2 above be the equivalent in pounds
sterling at the spot rate of a bank nominated by the Trustee
for the conversion of the relevant currency or currencies
into pounds sterling on the seventh dealing day prior to the
day on which the requisition in writing is received by the
Issuer and (ii) for the purposes of paragraphs 5, 6 and 14
above (whether in respect of the meeting or any adjourned such
meeting or any poll resulting therefrom) be the equivalent at
such spot rate on the seventh dealing day prior to the day of
such meeting. In such circumstances, on any poll each person
present shall have one vote for each(pound)1 (or such other
pound sterling amount as the Trustee may in its absolute
discretion stipulate) in principal amount of the
Securities (converted as above) which he holds or represents.
23. Subject to all other provisions of these presents the Trustee may
without the consent of the Issuer, the Guarantor, the Holders or the
Couponholders prescribe such further regulations regarding the
requisitioning and/or the holding of meetings of Holders and attendance
and voting thereat as the Trustee may in its sole discretion think fit.
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THE FIFTH SCHEDULE
PROVISIONS AS TO REGISTERED SECURITIES IN UNCERTIFICATED FORM
(1) The Issuer may, but shall not be obliged to, make arrangements for
Registered Securities comprised in any series of Securities to be
Participating Securities.
(2) For so long as the Registered Securities comprised in or, as the case
may be, comprising any series of Securities continue to be
Participating Securities, no provision of those presents (including,
but not limited to, any Condition of such Participating Securities)
shall apply to such Participating Securities or have effect in respect
of the same, to the extent that it is in any respect inconsistent with:
(i) the holding of title to such Participating Securities in
uncertificated form;
(ii) the transfer of title to such Participating Securities by means
of a relevant system or
(iii) the Regulations.
(3) Without prejudice to the generality of paragraph (2) of this Schedule
and notwithstanding any provision of these presents (including, but not
limited to, any Condition of any Participating Securities):
(i) the Register in respect of Participating Securities shall be
maintained at all times in the United Kingdom and shall
specify the amount of Participating Securities held by each
holder which is in certificated and uncertificated form
respectively;
(ii) subject to sub-paragraph (vi) below, an entry on to the
Register which records a holder as holding Participating
Securities in uncertificated form shall be evidence of such
title to such Participating Securities to the same extent as
would be evidenced if the entry on the Register related to
Participating Subsidiaries held in certified form;
(iii) entries on the Register in respect of Participating Securities
held in uncertificated form may not be rectified except with
the consent of the Operator or by order of a court in the
United Kingdom and, where an entry on the Register is in
respect of such Participating Securities is so rectified or
otherwise changed (except in response to an
Operator-instruction), the Operator and the holders of the
relevant Participating Subsidiaries shall be immediately
notified of the changes to the entry;
(iv) notwithstanding Section 358 of the Companies Act 1985, any
other enactment or any provision of these presents, the
Register in relation to Participating Securities shall not be
closed by the Issuer without the consent of the Operator;
95
(v) transfers of title to Participating Securities in
uncertificated form shall be effected by means of the relevant
system concerned in the manner provided for, and subject as
provided in, the Regulations and accordingly (and in
particular) where the Conditions of the Participating
Securities require or contemplate the effecting of a transfer
of an instrument in writing and the production of
Participating Securities in certified form such provisions
shall not apply in respect of such Participating Securities in
uncertificated form;
(vi) transfers of title to uncertificated Participating Securities
shall be registered in accordance with, and subject as
provided in, the Regulations and any purported registration of
title in respect of Participating Securities in uncertificated
form otherwise than in accordance with the Regulations shall
have no effect;
(vii) Participating Securities shall not be changed from
uncertificated form to certificated form except in accordance
with and subject as provided in the Regulations;
(viii) Participating Securities shall not be changed from
certificated form to if uncertificated form except in
accordance with and subject as provided in the Regulations;
(ix) Participating Securities may be issued in uncertificated form
to a person who is a system-member and, upon the issue in
uncertificated form of new Participating Securities, the
Issuer or a sponsoring system participant on its behalf shall
by issuer-instruction notify the Operator to whom the
uncertificated Participating Securities have been issued and
the number of units of Participating Securities issued to each
such person. For the purposes of calculating the number of
units of new uncertificated Participating Securities to which
a system-member is entitled, the Issuer may treat a
system-member's holdings of certificated Participating
Securities and uncertificated Participating Securities as if
they were separate holdings;
(x) the provisions of the Fourth Schedule with respect to meetings
of Holders shall have effect subject to the provisions of
regulation 34 of the Regulations;
(xi) none of the provisions of these presents (including, but not
limited to, any Condition of any Participating Securities
relating to form, denomination, title and transfer of such
Participating Securities) shall apply so as to require the
Issuer or the Registrar to issue a certificate for such
Participating Securities to any person hold, such
Participating Securities in uncertificated form;
(xii) notwithstanding sub-paragraph (xi) above and, for the
avoidance of doubt, the Conditions of any Participating
Securities shall remain so applicable (and accordingly the
Issuer shall continue to comply with the same in accordance
with the provisions of these presents) notwithstanding that
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they are not endorsed on, or on any certificate for, any
Participating Securities which are in uncertificated form;
(xiii) each holder of Participating Securities in uncertificated form
shall be sent by the Issuer within seven days of becoming such
a holder, a copy of the Conditions thereof and any other
document containing equivalent information to that normally
endorsed on any certificates (but so that joint holders of
such Participating Securities shall be entitled to receive one
copy only of the Conditions or such other document in respect
of the Participating Securities held jointly by them, which
copy shall be sent to that one of the joint holders whose name
stands first in the Register in respect of that holding);
(xiv) notwithstanding any Condition of any Participating
Securities or any other provision of these presents relating
to payment in respect of any Participating Securities, where
the Issuer is authorised to do so by or on behalf of the
holder or all joint holders of such Participating Securities
in uncertificated form in such manner as the Issuer shall
from time to time consider sufficient, the Issuer may pay or
procure the payment of the principal and premium (if any)
for the time being owing on, the interest payable in respect
of and/or any other moneys payable by the Issuer to such
holder or joint holders pursuant to these presents in
respect of such Participating Securities by means of the
relevant system concerned (subject always to the facilities
and requirements of that relevant system). Such payment may
include the sending by the Issuer or by a sponsoring
system-participant on its behalf of an issuer-instruction to
the Operator of the relevant system concerned to credit the
account of the holder or joint holders concerned or of such
person as the holder or a joint holders may in writing
direct, in either case being an account designated by the
Operator of such relevant system as the cash memorandum
account of the holder or joint holders or, as the case may
be, of such person. The making of such payment in accordance
with the facilities and requirements of the relevant system
concerned shall constitute a good discharge to the Issuer
therefor. For the purposes of this sub-paragraph (xiv),
evidence of title to any Participating Securities in
uncertificated form in accordance with the Regulations shall
be sufficient for such payments to be made;
(xv) notwithstanding any Condition of any Participating
Securities or any other provision of these presents which
provides for or which contemplates payment of principal and
premium (if any) against presentation and surrender (or, in
the case of part payment only, endorsement) of, or of
certificates for, Participating Securities, if Participating
Securities fail to be redeemed and are in uncertificated
form on the relevant Redemption Date then, subject to
sub-paragraph (xvi) below and provided that it has complied
with its obligations in relation to payment of the amount
due in respect of the relevant redemption pursuant to these
presents and the relevant Agency Agreement the Issuer may at
any time on or after the Redemption Date send or procure
that a sponsoring system-participant sends on its behalf an
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issuer-instruction to the Operator of the relevant system
concerned requesting or requiring the cancellation or
deletion of the appropriate computer-based entries in the
relevant system concerned that relate to the relevant
Participating Securities (being or including entries that
caused or could cause the Operator to generate an Operator-
instruction to the Issuer or to a sponsoring
system-participant acting on its behalf to register a
transfer of the relevant Participating Securities). The
Issuer or a sponsoring system-participant on its behalf may
obtain, by means of the relevant system concerned (or by
such other means as the Issuer shall determine having regard
to the facilities and requirements of the relevant system
concerned), confirmation of such cancellation or deletion;
(xvi) in relation to any Participating Securities which are to be
redeemed and which are (or, in the absence of this
sub-paragraph (xvi), would or may be) in uncertificated form
on the relevant Redemption Date, the Issuer shall be entitled
to determine and/or alter the procedure for effecting the
redemption of such Participating Securities in such manner as
it shall, in its absolute discretion, determine, subject
always to the facilities and requirements of the relevant
system concerned. In particular (but without limiting the
generality of the foregoing):
(a) the issuer-instruction referred to in sub-paragraph
(xv) above may be given in such form as the Issuer
may from time to time determine and may have such
effect, and/or cause the Operator to take such
action, in relation to the relevant system concerned
and the relevant Participating Securities as the
Issuer may from time to time determine (consistent
always with the facilities and requirements of the
relevant system concerned, the Regulations and the
redemption, on the relevant Redemption Date, of the
relevant Participating Securities);
(b) if the Issuer or any sponsoring system-
participant acting on its behalf is unable, for any
reason, to send or receive properly
authenticated dematerialised instructions, or if
the Issuer or any sponsoring system- participant
acting on its behalf has not received
confirmation in a form satisfactory to the Issuer
of the cancellation or deletion of the computer
based entries as contemplated by subparagraph
(xv) above or if the Issuer so determines for any
other reason, the Issuer may, so far as it is able
having regard to the facilities and requirements
of the relevant system concerned and the
Regulations, require or request the Operator of
the relevant system concerned to take the
action referred to in sub-paragraph (xv) above
(subject always as provided in sub-paragraph (a)
above) by some means other than by means of an
issuer-instruction or the Issuer may (by notice in
writing to the relevant holder or holders of the
relevant Participating Securities, which notice may
be included in the relevant notice of redemption
(if any)) require such holder or holders to convert
the relevant Participating Securities from
uncertificated to certificated form; and
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(xvii) for the avoidance of doubt, any Participating Securities may
be held in uncertificated form by not more than four joint
holders.
(4) The Trustee shall be entitled, without the consent of the Holders, to
concur in making any modifications to the provisions of these presents
requested by the Issuer in order to reflect changes in the Regulations
or in the law and practice relating to the holding and transfer of
Participating Securities in uncertificated form.
(5) The Issuer shall concur at the request of the Trustee in making any
modifications to the provisions of these presents reasonably requested
by the Trustee relating to the Regulations and/or the holding and
transfer of Participating Securities in uncertificated form.
(6) The due performance and/or observance by the Registrar in respect of
the relevant Participating Securities of the terms of paragraph (3) of
this Schedule and the Regulations shall be a good discharge of the
obligations of the Issuer under such paragraph and the Regulations to
the extent of such performance and/or observance.
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Executed as a deed by
YORKSHIRE ELECTRICITY DISTRIBUTION PLC
Acting by:
- --------------------------
Director
- --------------------------
Director/Secretary
Executed as a deed by
YORKSHIRE ELECTRICITY GROUP PLC
Acting by:
- --------------------------
Director
- --------------------------
Director/Secretary
THE COMMON SEAL of )
BANKERS TRUSTEE )
COMPANY LIMITED was )
affixed to this deed in the )
presence of: )
Director
Assistant Secretary
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