Dated 7 July 2009
Exhibit
10(c)
CONFORMED
COPY
|
Dated
|
7
July 2009
|
|
(1)
|
Western
Power Distribution (South West) Plc as the
Company
|
|
(2)
|
HSBC
Bank plc, Lloyds TSB Bank plc and Clydesdale Bank PLC as Mandated Lead
Arrangers
|
|
(3)
|
HSBC
Bank plc as Facility Agent
|
£210,000,000
Multicurrency Revolving Facility Agreement
|
Eversheds
LLP
One
Xxxx Xxxxxx
Xxxxxx
XX0X
0XX
|
Tel
Fax
Int
DX
|
0000
000 0000
0000
000 0000
x00
00 0000 0000
000000
Cheapside 8
|
|
xxx.xxxxxxxxx.xxx
|
||
CONTENTS
|
Clause
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Page
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||
|
1
|
INTERPRETATION
|
1
|
|
|
2
|
THE
FACILITY
|
17
|
|
|
3
|
PURPOSE
|
18
|
|
|
4
|
CONDITIONS
PRECEDENT
|
18
|
|
|
5
|
UTILISATION
|
19
|
|
|
6
|
OPTIONAL
CURRENCIES
|
20
|
|
|
7
|
REPAYMENT
|
22
|
|
|
8
|
PREPAYMENT
AND CANCELLATION
|
23
|
|
|
9
|
INTEREST
|
26
|
|
|
11
|
MARKET
DISRUPTION
|
27
|
|
|
12
|
TAXES
|
29
|
|
|
13
|
INCREASED
COSTS
|
32
|
|
|
14
|
MITIGATION
|
33
|
|
|
15
|
PAYMENTS
|
34
|
|
|
16
|
REPRESENTATIONS
|
37
|
|
|
17
|
INFORMATION
COVENANTS
|
40
|
|
|
18
|
FINANCIAL
COVENANTS
|
44
|
|
|
19
|
GENERAL
COVENANTS
|
47
|
|
|
20
|
DEFAULT
|
53
|
|
|
21
|
THE
ADMINISTRATIVE PARTIES
|
56
|
|
|
22
|
EVIDENCE
AND CALCULATIONS
|
63
|
|
|
23
|
FEES
|
64
|
|
|
24
|
INDEMNITIES
AND BREAK COSTS
|
65
|
|
|
25
|
EXPENSES
|
66
|
|
|
26
|
AMENDMENTS
AND WAIVERS
|
67
|
|
|
27
|
CHANGES
TO THE PARTIES
|
68
|
|
|
28
|
DISCLOSURE
OF INFORMATION
|
71
|
|
|
29
|
SET-OFF
|
72
|
|
|
30
|
PRO
RATA SHARING
|
72
|
|
|
31
|
SEVERABILITY
|
74
|
|
|
32
|
COUNTERPARTS
|
74
|
|
|
33
|
NOTICES
|
74
|
|
|
34
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LANGUAGE
|
76
|
|
|
35
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GOVERNING
LAW
|
76
|
|
|
36
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ENFORCEMENT
|
76
|
|
|
Schedules
|
|||
|
1
|
Original
Parties
|
78
|
|
|
2
|
Conditions
Precedent Documents
|
79
|
|
|
3
|
Form
of Request
|
80
|
|
|
4
|
Calculation
of the mandatory cost
|
81
|
|
|
6
|
Intentionally
left blank
|
87
|
|
|
7
|
Form
of Compliance Certificate
|
88
|
|
BETWEEN:
|
(1)
|
WESTERN POWER DISTRIBUTION
(SOUTH WEST) PLC (registered number 02366894) (the Company);
|
|
(2)
|
HSBC BANK PLC, LLOYDS TSB BANK PLC and CLYDESDALE BANK PLC (each in this
capacity as a Mandated
Lead Arranger
and together in this capacity, the Mandated Lead Arrangers);
|
|
(3)
|
THE FINANCIAL INSTITUTIONS
listed in Schedule 1 (Original Parties) as original lenders (the
Original
Lenders);
|
|
(4)
|
HSBC BANK PLC as
facility agent (in this capacity, the Facility
Agent).
|
IT IS AGREED as
follows:
|
1.
|
INTERPRETATION
|
|
1.1
|
Definitions
|
In this
Agreement:
|
“Acceptable
Bank”
|
means
a bank or financial institution which has a rating for its long-term
unsecured and non credit-enhanced debt obligations of A-1 or higher by
Standard & Poor’s Rating Services or F1 or higher by Fitch Ratings Ltd
or P-1 or higher by Xxxxx’x Investor Services Limited or a comparable
rating from an internationally recognised credit rating
agency.
|
|
“Act”
|
means
the Electricity Xxx 0000 and, unless the context otherwise requires, all
subordinate legislation made pursuant thereto.
|
|
“Administrative
Party”
|
means
a Mandated Lead Arranger or the Facility Agent.
|
|
“Affiliate”
|
means
a Subsidiary or a Holding Company of a person or any other Subsidiary of
that Holding Company, and, in the case of Clydesdale Bank PLC only,
includes National Australia Bank Limited (ABN 12 004 044
937).
|
|
“Applicable
Accounting Principles”
|
means
those accounting principles, standards and practices generally accepted in
the United Kingdom and the accounting and reporting requirements of the
Companies Xxx 0000, in each case as used in the Original Financial
Statements.
|
|
“Authority”
|
means
The Gas and Electricity Markets Authority established under Section 1 of
the Utilities Xxx 0000.
|
|
“Availability
Period”
|
means
the period from and including the date of this Agreement to and including
the date falling one month prior to the Final Maturity Date.
|
|
“Balancing
and Settlement Code”
|
means
the document, as modified from time to time, setting out the electricity
balancing and settlement arrangements designated by the Secretary of State
and adopted by The National Grid Company plc (Registered No. 2366977) or
its successor pursuant to its transmission licence.
|
|
“Balancing
and Settlement Code Framework”
|
means
the agreement of that title, in the form approved by the Secretary of
State, as amended from time to time, to which the Company is a party and
by which the Balancing and Settlement Code is made binding upon the
Company.
|
|
“Break
Costs”
|
means
the amount (if any) which a Lender is entitled to receive under this
Agreement as compensation if any part of a Loan or overdue amount is
prepaid.
|
|
“Business
Day”
|
means
a day (other than a Saturday or a Sunday) on which commercial banks are
open in London and:
(a) if
on that day a payment in or a purchase of a currency (other than euro) is
to be made, the principal financial centre of the country of that
currency; or
(b) if
on that day a payment in or purchase of euro is to be made, which is also
a TARGET Day.
|
|
“Commitment”
|
means:
(a) in
relation to an Original Lender, the Sterling amount set opposite its name
under the heading “Commitment” in Schedule 1 (The Original Parties) and
the amount of any other Commitment transferred to it under this Agreement;
and
(b) in
relation to any other Lender, the Sterling amount of any Commitment
transferred to it under this Agreement,
to
the extent not cancelled, reduced or transferred by it under this
Agreement.
|
|
“Compliance
Certificate”
|
means
a certificate substantially in the form of Schedule 7 (Form of Compliance
Certificate) setting out, among other things, calculations of the
financial covenants.
|
|
“Debt
Purchase Transaction”
|
means,
in relation to a person, a transaction where such person:
(a) purchases
by way of assignment or transfer;
(b) enters
into any sub-participation in respect of; or
(c) enters
into any other agreement or arrangement having an economic effect
substantially similar to a sub-participation in respect of,
any
Commitment or amount outstanding under this Agreement.
|
|
“Default”
|
means:
(a) an
Event of Default; or
(b) an
event which would be (with the lapse of time, the expiry of a grace
period, the giving of notice or the making of any determination under the
Finance Documents or any combination of them) an Event of
Default.
|
|
“Environmental
Law”
|
means
all regulations and other laws concerning the protection of human health
or the environment.
|
|
euro or euros or
€
|
means
the single currency of the Participating Member States.
|
|
“Event
of Default”
|
means
an event specified as such in this Agreement.
|
|
“Existing
Facility Agreement”
|
means
the revolving facility agreement dated 18 October 2002 between, among
others, the Company as the borrower, Bayerische Landesbank acting through
its London Branch, BNP Paribas, Fortis Bank S.A./N.V., Lloyds TSB Bank plc
and WestLB AG, London Branch as the mandated lead arrangers and the Lloyds
TSB Bank plc as the Facility Agent (as amended and restated from time to
time).
|
|
“Facility”
|
means
the revolving loan facility made available under this Agreement as
described in Clause 2 (The Facility).
|
|
“Facility
Office”
|
means
the office(s) notified by a Lender to the Facility Agent:
(a) on
or before the date it becomes a Lender; or
(b) by
not less than five Business Days' notice,
as
the office(s) through which it will perform its obligations under this
Agreement.
|
|
“Fee
Letter”
|
means
any letter entered into by reference to this Agreement between one or more
Administrative Parties and the Company setting out the amount of certain
fees referred to in the Agreement.
|
|
“Final
Maturity Date”
|
means
the third anniversary of the date of this Agreement.
|
|
“Finance
Document”
|
means:
(a) this
Agreement;
(b) a
Fee Letter;
(c) a
Transfer Certificate; or
(d) any
other document designated as such by the Facility Agent and the
Company.
|
|
“Finance
Party”
|
means
a Lender or an Administrative Party.
|
|
“Financial
Indebtedness”
|
means
any indebtedness for or in respect of:
(a) moneys
borrowed;
(b) any
acceptance credit;
(c) any
bond, note, debenture, loan stock or other similar
instrument;
(d) any
redeemable preference share;
(e) any
finance or capital lease;
(f) receivables
sold or discounted (otherwise than on a non-recourse basis);
(g) the
acquisition cost of any asset to the extent payable after its acquisition
or possession by the party liable where the deferred payment is arranged
primarily as a method of raising finance or financing the acquisition of
that asset;
(h) any
derivative transaction protecting against or benefiting from fluctuations
in any rate or price (and, except for non-payment of an amount, the then
xxxx to market value of the derivative transaction will be used to
calculate its amount);
(i) any
other transaction (including any forward sale or purchase agreement) which
has the commercial effect of a borrowing;
(j) any
counter-indemnity obligation in respect of any guarantee, indemnity, bond,
letter of credit or any other instrument issued by a bank or financial
institution; or
any
guarantee, indemnity or similar assurance against financial loss of any
person in respect of any item referred to in paragraphs (a) to (j)
above.
|
|
“Group”
|
means
the Company and its Subsidiaries.
|
|
“Holding
Company”
|
means
in relation to a company or corporation, any other company or corporation
in respect of which it is a Subsidiary.
|
|
“Increased
Cost”
|
means:
(a) an
additional or increased cost;
(b) a
reduction in the rate of return under a Finance Document or on its overall
capital; or
(c) a
reduction of an amount due and payable under any Finance
Document,
which
is incurred or suffered by a Finance Party or any of its Affiliates but
only to the extent attributable to that Finance Party having entered into
any Finance Document or funding or performing its obligations under any
Finance Document.
|
|
“Information
Package”
|
means
the information package in the form approved by the Company concerning the
Group which, at the Company’s request and on its behalf, was prepared in
relation to this transaction and distributed by the Mandated Lead
Arrangers to selected financial institutions before the date of this
Agreement and which includes, amongst other things, a document entitled
‘Presentation to Banks May 2009’.
|
|
“ITA”
|
means
the Income Tax Xxx 0000.
|
|
Legal
Reservations
|
means
(a) the
principle that equitable remedies may be granted or refused at the
discretion of a court and the limitation of enforcement by laws relating
to insolvency, reorganisation and other laws generally affecting the
rights of creditors;
(b) the
time barring of claims under the Limitation Xxx 0000 and the Foreign
Limitation Periods Xxx 0000, the possibility that an undertaking to assume
liability for or indemnify a person against non-payment of UK stamp duty
may be void and defences of set-off or counterclaim;
(c) similar
principles, rights and defences under the laws of any jurisdiction in
which a member of the Group or a Holding Company of the Company is
incorporated; and
(d) any
other matters which are set out as qualifications or reservations as to
matters of law of general application in any legal opinion provided under
Schedule 2.
|
|
Lender
|
means:
(a) an
Original Lender; or
(b) any
person which becomes a Lender after the date of this
Agreement.
|
|
“LIBOR”
|
means
for a Term of any Loan or overdue amount:
(a) the
applicable Screen Rate; or
(b) if
no Screen Rate is available for the relevant currency or Term of that Loan
or overdue amount, the arithmetic mean (rounded upward to four decimal
places) of the rates, as supplied to the Facility Agent at its request,
quoted by the Reference Banks to leading banks in the London interbank
market,
as
of 11.00 a.m. on the Rate Fixing Day for the offering of deposits in
the currency of that Loan or overdue amount for a period comparable to
that Term.
|
|
“Licence”
|
means:
(a) the
electricity distribution licence made and treated as granted to the
Company under Section 6(1)(c) of the Act pursuant to a licensing scheme
made by the Secretary of State under Part II of Schedule 7 to the
Utilities Xxx 0000 on 28 September, 2001; or
(b) any
statutory amendment or replacement licence or licences granted pursuant to
the Utilities Xxx 0000 which permit the Company to distribute electricity
in the area it is certified to operate in.
|
|
“Loan”
|
means,
unless otherwise stated in this Agreement, the principal amount of each
borrowing under this Agreement or the principal amount outstanding of that
borrowing.
|
|
Majority
Lenders
|
means,
at any time, Lenders:
(a) whose
share in the outstanding Loans and whose undrawn Commitments then
aggregate 662/3 per
cent. or more of the aggregate of all the outstanding Loans and the
undrawn Commitments of all the Lenders;
(b) if
there is no Loan then outstanding, whose undrawn Commitments then
aggregate 662/3 per
cent. or more of the Total Commitments; or
(c) if
there is no Loan then outstanding and the Total Commitments have been
reduced to zero, whose Commitments aggregated 662/3 per
cent. or more of the Total Commitments immediately before the
reduction.
|
|
“Mandatory
Cost”
|
means
the cost of complying with certain regulatory requirements, expressed as a
percentage rate per annum and calculated by the Facility Agent under
Schedule 4 (Calculation of the Mandatory Cost).
|
|
“Margin”
|
means
2.50% per annum.
|
|
“Material
Adverse Effect”
|
means
a material adverse effect on the ability of the Company to
perform:
(a) its
payment obligations under the Finance Documents; or
(b) its
obligations under clauses 18.3 (Interest Cover) or 18.4 (Asset Cover) of
this Agreement.
|
|
“Material
Subsidiary”
|
means,
at any time, a Subsidiary of the Company whose gross assets or gross
revenues (on an unconsolidated basis and excluding intra-Group items) then
equal or exceed 10 per cent. of the gross assets or gross revenues of
the Group.
For
this purpose:
(a) the
gross assets or gross revenues of a Subsidiary of the Company will be
determined from its financial statements (unconsolidated if it has
Subsidiaries) upon which the latest audited financial statements of the
Group have been based;
(b) if
a Subsidiary of the Company becomes a member of the Group after the date
on which the latest audited financial statements of the Group have been
prepared, the gross assets or gross revenues of that Subsidiary will be
determined from its latest financial statements;
(c) the
gross assets or gross revenues of the Group will be determined from the
Company’s latest audited financial statements, adjusted (where
appropriate) to reflect the gross assets or gross revenues of any company
or business subsequently acquired or disposed of; and
(d) if
a Material Subsidiary disposes of all or substantially all of its assets
to another Subsidiary of the Company, it will immediately cease to be a
Material Subsidiary and the other Subsidiary (if it is not already) will
immediately become a Material Subsidiary; the subsequent financial
statements of those Subsidiaries and the Group will be used to determine
whether those Subsidiaries are Material Subsidiaries or not.
If
there is a dispute as to whether or not a company is a Material
Subsidiary, a certificate of the auditors of the Company will be, in the
absence of manifest error, conclusive.
|
|
“Maturity
Date”
|
means
the last day of the Term of a Loan.
|
|
“OFGEM”
|
means
the Office of Gas and Electricity Markets.
|
|
“Original
Financial Statements”
|
means
the audited consolidated financial statements of the Company for the year
ended 31 March, 2008.
|
|
“Participating
Member State”
|
means
a member state of the European Community that adopts or has adopted the
euro as its lawful currency under the legislation of the European
Community relating to Economic and Monetary Union.
|
|
“Party”
|
means
a party to this Agreement.
|
|
“Pro
Rata Share”
|
means:
(a) for
the purpose of determining a Lender's share in a utilisation of the
Facility, the proportion which its Commitment under the Facility bears to
all the Commitments under the Facility; and
(b) for
any other purpose on a particular date:
(i) the
proportion which a Lender's share of the Loans (if any) bears to all the
Loans;
(ii) if
there is no Loan outstanding on that date, the proportion which its
Commitment bears to the Total Commitments on that date; or
(iii) if
the Total Commitments have been cancelled, the proportion which its
Commitments bore to the Total Commitments immediately before being
cancelled.
|
|
“PUHCA”
|
means
the Public Utility Holding Company Act of 2005, as amended, of the United
States of America.
|
|
“Rate
Fixing Day”
|
means:
(a) the
first day of a Term for a Loan denominated in Sterling; or
(b) the second Business Day
before the first day of a Term for a Loan denominated in any other
currency;
or
such other day as the Facility Agent determines is generally treated as
the rate fixing day by market practice in the relevant interbank
market.
|
|
“Reference
Banks”
|
means
the Facility Agent, Lloyds TSB Bank plc and Clydesdale Bank PLC and any
other bank or financial institution appointed as such by the Facility
Agent under this Agreement.
|
|
“Repeating
Representations”
|
means
the representations which are deemed to be repeated under this
Agreement.
|
|
“Request”
|
means
a request for a Loan, substantially in the form of Schedule 3 (Form
of Request).
|
|
“Rollover
Loan”
|
means
one or more Loans:
(a) to
be made on the same day that a maturing Loan is due to be
repaid;
(b) the
aggregate amount of which is equal to or less than the maturing
Loan;
(c) in
the same currency as the maturing Loan; and
(d) to
be made for the purpose of refinancing a maturing Loan.
|
|
“Screen
Rate”
|
means
the British Bankers’ Association Interest Settlement Rate (if any) for the
relevant currency and Term displayed on the appropriate page of the
Reuters screen. If the relevant page is replaced or the service
ceases to be available, the Facility Agent (after consultation with the
Company and the Lenders) may specify another page or service displaying
the appropriate rate.
|
|
“Secretary
of State”
|
means
the Secretary of State for Trade and Industry.
|
|
“Security
Interest”
|
means
any mortgage, pledge, lien, charge, assignment, hypothecation or security
interest or any other agreement or arrangement having a similar
effect.
|
|
“Sterling”
and “£”
|
mean
the lawful currency of the United Kingdom.
|
|
“Subsidiary”
|
(a) a
subsidiary within the meaning of section 1159 of the Companies Xxx 0000;
and
(b) unless
the context otherwise requires, a subsidiary undertaking within the mean
of section 1162 of the Companies Xxx 0000.
|
|
“TARGET2”
|
means
the Trans-European Automated Real-time Gross Settlement Express Transfer
payment system which utilises a single platform and which was launch on 19
November 2007.
|
|
“TARGET
Day”
|
means
any day on which TARGET2 is open for the settlement of payments in
euro.
|
|
“Tax”
|
means
any tax, levy, impost, duty or other charge or withholding of a similar
nature (including any penalty, addition to tax or any interest payable in
connection with any failure to pay or any delay in paying any of the
same.)
|
|
“Tax
Deduction”
|
means
a deduction or withholding for or on account of Tax from a payment under a
Finance Document.
|
|
“Tax
Payment”
|
means
a payment made by the Company to a Finance Party in any way relating to a
Tax Deduction or under any indemnity given by the Company in respect of
Tax under any Finance Document.
|
|
“Taxes
Act”
|
means
the Income and Corporation Taxes Xxx 0000.
|
|
“Term”
|
means
each period determined under this Agreement by reference to which interest
on a Loan or an overdue amount is calculated.
|
|
“Total
Commitments”
|
means
the aggregate of the Commitments, being £210,000,000 at the date of this
Agreement.
|
|
“Transfer
Certificate”
|
means
a certificate, substantially in the form of Schedule 5 (Form of
Transfer Certificate), with such amendments as the Facility Agent may
approve or reasonably require or any other form agreed between the
Facility Agent and the Company.
|
|
“U.K.”
|
means
the United Kingdom.
|
|
“U.S. Dollars and U.S.$”
|
means
the lawful currency for the time being of the United States of
America.
|
|
“Unpaid
Sum”
|
means
any sum due and payable but unpaid by the Company under the Finance
Documents.
|
|
“Utilisation
Date”
|
means
each date on which the Facility is utilised.
|
|
1.2
|
Construction
|
|
|
1.2.1
|
The
following definitions have the meanings given to them in clause 18.1
(Financial covenants):
|
|
|
1.2.1.1
|
Consolidated
EBITDA;
|
|
|
1.2.1.2
|
Interest
Payable;
|
|
|
1.2.1.3
|
Measurement
Period;
|
|
|
1.2.1.4
|
Regulatory
Asset Base; and
|
|
|
1.2.1.5
|
Total
Net Debt.
|
|
|
1.2.2
|
In
this Agreement, unless the contrary intention appears, a reference
to:
|
|
|
1.2.2.1
|
an
amendment includes
a supplement, novation, restatement or re-enactment and amended will be
construed accordingly;
|
|
|
1.2.2.2
|
assets includes present
and future properties, revenues and rights of every
description;
|
|
|
1.2.2.3
|
an
authorisation
includes an authorisation, consent, approval, resolution, licence,
exemption, filing, registration or
notarisation;
|
|
|
1.2.2.4
|
disposal means a sale,
transfer, grant, lease or other disposal, whether voluntary or
involuntary, and dispose will be construed
accordingly;
|
|
|
1.2.2.5
|
indebtedness includes
any obligation (whether incurred as principal or as surety) for the
payment or repayment of money;
|
|
|
1.2.2.6
|
know your customer
requirements are the identification checks that a Finance Party
requests in order to meet its obligations under any applicable law or
regulation to identify a person who is (or is to become) its
customer;
|
|
|
1.2.2.7
|
a
person includes
any individual, company, corporation, unincorporated association or body
(including a partnership, trust, joint venture or consortium), government,
state, agency, organisation or other entity whether or not having separate
legal personality;
|
|
|
1.2.2.8
|
a regulation includes any
regulation, rule, official directive, request or guideline (whether or not
having the force of law but, if not having the force of law, being of a
type with which any person to which it applies is accustomed to comply) of
any governmental, inter-governmental or supranational body, agency,
department or regulatory, self-regulatory or other authority or
organisation;
|
|
|
1.2.2.9
|
the
winding-up of a
person includes the administration, dissolution or liquidation or other
like process of that person, any composition or arrangement with the
creditors, amalgamation, reconstruction, reorganisation or consolidation
pursuant to Part XXVI of the Companies Xxx 0000 proposed or carried out in
respect of that person or a company voluntary arrangement pursuant to the
Insolvency Xxx 0000 carried out or proposed in respect of that
person;
|
|
|
1.2.2.10
|
a
currency is a reference to the lawful currency for the time being of the
relevant country;
|
|
|
1.2.2.11
|
a
Default (other than an Event of Default) being outstanding means that
it has not been remedied or waived and an Event of Default being outstanding means that
it has not been waived;
|
|
|
1.2.2.12
|
a
provision of law is a reference to that provision as extended, applied,
amended or re-enacted and includes any subordinate
legislation;
|
|
|
1.2.2.13
|
a
Clause, a Subclause or a Schedule is a reference to a clause or subclause
of, or a schedule to, this
Agreement;
|
|
|
1.2.2.14
|
a
person includes its successors in title, permitted assigns and permitted
transferees;
|
|
|
1.2.2.15
|
a
Finance Document or another document is a reference to that Finance
Document or other document as amended;
and
|
|
|
1.2.2.16
|
a
time of day is a reference to London
time.
|
|
|
1.2.3
|
Unless
the contrary intention appears, a reference to a month or months is a reference to
a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month or the calendar
month in which it is to end, except
that:
|
|
|
1.2.3.1
|
if
the numerically corresponding day is not a Business Day, the period will
end on the next Business Day in that month (if there is one) or the
preceding Business Day (if there is
not);
|
|
|
1.2.3.2
|
if
there is no numerically corresponding day in that month, that period will
end on the last Business Day in that month;
and
|
|
|
1.2.3.3
|
notwithstanding
clause 1.2.3.1 above, a period which commences on the last Business Day of
a month will end on the last Business Day in the next month or the
calendar month in which it is to end, as
appropriate.
|
|
|
1.2.4
|
Unless
expressly provided to the contrary in a Finance Document, a person who is
not a party to a Finance Document may not enforce any of its terms under
the Contracts (Rights of Third Parties) Xxx 0000 and notwithstanding any
term of any Finance Document, the consent of any third party is not
required for any variation (including any release or compromise of any
liability) or termination of that Finance
Document.
|
|
|
1.2.5
|
Unless
the contrary intention appears:
|
|
|
1.2.5.1
|
a
reference to a Party will not include that Party if it has ceased to be a
Party under this Agreement;
|
|
|
1.2.5.2
|
a
word or expression used in any other Finance Document or in any notice
given in connection with any Finance Document has the same meaning in that
Finance Document or notice as in this Agreement;
and
|
|
|
1.2.5.3
|
any
obligation of the Company under the Finance Documents which is not a
payment obligation remains in force for so long as any payment obligation
of the Company is or may be outstanding under the Finance
Documents.
|
|
|
1.2.6
|
The
headings in this Agreement do not affect its
interpretation.
|
|
2.
|
THE
FACILITY
|
|
2.1
|
The
Facility
|
Subject
to the terms of this Agreement, the Lenders make available to the Company a
revolving loan facility denominated in Sterling in an aggregate amount equal to
the Total Commitments.
|
2.2
|
Nature of a Finance Party's
rights and obligations
|
Unless
otherwise agreed by all the Finance Parties:
|
|
2.2.1
|
the
obligations of a Finance Party under the Finance Documents are
several;
|
|
|
2.2.2
|
failure
by a Finance Party to perform its obligations does not affect the
obligations of any other Party under the Finance
Documents;
|
|
|
2.2.3
|
no
Finance Party is responsible for the obligations of any other Finance
Party under the Finance Documents;
|
|
|
2.2.4
|
the
rights of a Finance Party under the Finance Documents are separate and
independent rights;
|
|
|
2.2.5
|
a
debt arising under the Finance Documents to a Finance Party is a separate
and independent debt; and
|
|
|
2.2.6
|
a
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce those rights.
|
|
3.
|
PURPOSE
|
|
3.1
|
Purpose
|
The
Company shall apply all amounts borrowed by it under the Facility
towards:
|
|
3.1.1
|
the
core working capital requirements of the Company (including the repayment
of all loans made under the Existing Facility Agreement);
and
|
|
|
3.1.2
|
general
corporate purposes,
|
in each
case, in compliance with the Licence.
|
3.2
|
No obligation to
monitor
|
No
Finance Party is bound to monitor or verify any amount borrowed pursuant to this
Facility Agreement.
|
4.
|
CONDITIONS
PRECEDENT
|
|
4.1
|
Conditions precedent
documents
|
A Request
may not be given until the Facility Agent has notified the Company and the
Lenders that it has received all of the documents and evidence set out in
Schedule 2 (Conditions precedent documents) in form and substance
satisfactory to the Facility Agent. The Facility Agent must give this
notification to the Company and the Lenders promptly upon being so
satisfied.
|
4.2
|
Further conditions
precedent
|
The
obligations of each Lender to participate in any Loan are subject to the further
conditions precedent that on both the date of the Request and the Utilisation
Date for that Loan:
|
|
4.2.1
|
the
Repeating Representations are correct in all material respects;
and
|
|
|
4.2.2
|
no
Default or, in the case of a Rollover Loan, no Event of Default is
outstanding or would result from the
Loan.
|
|
4.3
|
Maximum
number
|
Unless
the Facility Agent agrees, a Request may not be given if, as a result, there
would be more than 15 Loans outstanding.
|
5.
|
UTILISATION
|
|
5.1
|
Giving of
Requests
|
|
|
5.1.1
|
The
Company may borrow a Loan by giving to the Facility Agent a duly completed
Request.
|
|
|
5.1.2
|
Unless
the Facility Agent otherwise agrees, the latest time for receipt by the
Facility Agent of a duly completed Request is 11.00 a.m. one Business
Day before the Rate Fixing Day for the proposed
borrowing.
|
|
|
5.1.3
|
Each
Request is irrevocable.
|
|
5.2
|
Completion of
Requests
|
A Request
for a Loan will not be regarded as having been duly completed
unless:
|
|
5.2.1
|
the
Utilisation Date is a Business Day falling within the Availability
Period;
|
|
|
5.2.2
|
The
amount of the Loan requested is:
|
|
|
5.2.2.1
|
a
minimum of £5,000,000 or its equivalent in accordance with Clause 6.5
(Optional Currency Equivalents), and an integral multiple of
1,000,000 units of that currency;
|
|
|
5.2.2.2
|
the
maximum undrawn amount available under this Agreement for Loans under the
Facility on the proposed Utilisation Date;
or
|
|
|
5.2.2.3
|
such
other amount as the Facility Agent may agree;
and
|
|
|
5.2.3
|
the
proposed Term complies with this
Agreement.
|
Only one
Loan may be requested in a Request.
|
5.3
|
Advance of
Loan
|
|
|
5.3.1
|
The
Facility Agent must promptly notify each Lender of the details of the
requested Loan and the amount of its share in that
Loan.
|
|
|
5.3.2
|
The
amount of each Lender's share of the Loan will be its Pro Rata Share on
the proposed Utilisation Date.
|
|
|
5.3.3
|
No
Lender is obliged to participate in a Loan if as a
result:
|
|
|
5.3.3.1
|
its
share in the Loans would exceed its Commitment;
or
|
|
|
5.3.3.2
|
the
Loans would exceed the Total
Commitments.
|
|
|
5.3.4
|
If
the conditions set out in this Agreement have been met, each Lender must
make its share in the Loan available to the Facility Agent for the Company
on the Utilisation Date.
|
|
6.
|
OPTIONAL
CURRENCIES
|
|
6.1
|
General
|
In this
Clause:
Agent's Spot Rate of Exchange
means the Facility Agent's spot rate of exchange for the purchase of the
relevant currency in the London foreign exchange market with Sterling at or
about 11.00 a.m. on a particular day.
Optional Currency means any
currency (other than Sterling) in which a Loan may be denominated under this
Agreement.
Pre-approved Currency means
U.S.$ and euro.
Sterling Amount of a Loan or
part of a Loan means:
|
|
6.1.1
|
if
the Loan is denominated in Sterling, its amount;
or
|
|
|
6.1.2
|
in
the case of any Loan denominated in an Optional Currency, its equivalent
in Sterling calculated on the basis of the Agent's Spot Rate of
Exchange one Business Day before the Rate Fixing Day for that
Term.
|
|
6.2
|
Selection
|
|
|
6.2.1
|
The
Company must select the currency of a Loan in its Request. The Company may
select Sterling or an Optional Currency for a
Loan.
|
|
|
6.2.2
|
Unless
the Facility Agent otherwise agrees, the Loans may not be denominated at
any one time in more than three
currencies.
|
|
6.3
|
Selection of Optional
Currencies
|
|
|
6.3.1
|
A
Loan may be denominated in an Optional Currency for a Term
if:
|
|
|
6.3.1.1
|
that
Optional Currency is readily available in the amount required and freely
convertible into Sterling in the relevant interbank market on the Rate
Fixing Day and the first day of that Term;
and
|
|
|
6.3.1.2
|
that
Optional Currency is a Pre-approved Currency or has been previously
approved by the Facility Agent (acting on the instruction of all the
Lenders) on or prior to receipt by the Facility Agent of the relevant
Request for that Loan.
|
|
|
6.3.2
|
If
the Facility Agent has received a request from the Company for a currency
to be approved as an Optional Currency (other than a Pre-approved
Currency), the Facility Agent must, within five Business Days, confirm to
the Company:
|
|
|
6.3.2.1
|
whether
or not the Lenders have given their approval;
and
|
|
|
6.3.2.2
|
if
approval has been given, the minimum amount (and, if required, integral
multiples) for any Loan in that
currency.
|
|
6.4
|
Revocation of
currency
|
|
|
6.4.1
|
Notwithstanding
any other term of this Agreement, if before 12 noon on any Rate Fixing Day
the Facility Agent receives notice from a Lender
that:
|
|
|
6.4.1.1
|
the
Optional Currency requested is not readily available to it in the relevant
interbank market in the amount and for the period required;
or
|
|
|
6.4.1.2
|
participating
in a Loan in the proposed Optional Currency might contravene any law or
regulation applicable to it,
|
the
Facility Agent must give notice to the Company to that effect promptly and in
any event before 5.00 p.m. on that day.
|
|
6.4.2
|
In
this event:
|
|
|
6.4.2.1
|
that
Lender must participate in the Loan in Sterling;
and
|
|
|
6.4.2.2
|
the
share of that Lender in the Loan and any other similarly affected
Lender(s) will be treated as a separate Loan denominated in Sterling
during that Term.
|
|
|
6.4.3
|
Any
part of a Loan treated as a separate Loan under this Subclause will not be
taken into account for the purposes of any limit on the number of Loans or
currencies outstanding at any one
time.
|
|
|
6.4.4
|
A
Loan will still be treated as a Rollover Loan if it is not denominated in
the same currency as the maturing Loan by reason only of the operation of
this Subclause.
|
|
6.5
|
Optional Currency
equivalents
|
Except as
expressly provided in this Agreement, the equivalent in Sterling of a Loan or
part of a Loan in an Optional Currency for the purposes of
calculating:
|
|
6.5.1
|
whether
any limit under this Agreement has been
exceeded;
|
|
|
6.5.2
|
the
amount of a Loan;
|
|
|
6.5.3
|
the
share of a Lender in a Loan;
|
|
|
6.5.4
|
the
amount of any repayment of a Loan;
or
|
|
|
6.5.5
|
the
undrawn amount of a Lender's
Commitment,
|
is its
Sterling Amount.
|
6.6
|
Notification
|
The
Facility Agent must notify the Lenders and the Company of the relevant Sterling
Amount (and the applicable Agent's Spot Rate of Exchange) by 3:00pm one Business
Day before the Rate Fixing Date.
|
7.
|
REPAYMENT
|
|
7.1
|
Repayment of
Loans
|
|
|
7.1.1
|
The
Company must repay each Loan in full on its Maturity Date. No
Loan may be outstanding after the applicable Final Maturity
Date.
|
|
|
7.1.2
|
Subject
to the other terms of this Agreement, any amounts repaid under clause
7.1.1 above may be re-borrowed.
|
|
8.
|
PREPAYMENT AND
CANCELLATION
|
|
8.1
|
Mandatory prepayment -
illegality
|
|
|
8.1.1
|
A
Lender must notify the Company promptly if it becomes aware that it is
unlawful in any jurisdiction for that Lender to perform any of its
obligations under a Finance Document or to fund or maintain its share in
any Loan.
|
|
|
8.1.2
|
After
notification under clause 8.1.1
above:
|
|
|
8.1.2.1
|
the
Company must repay or prepay the share of that Lender in each Loan made to
it on the date specified in clause 8.1.3 below;
and
|
|
|
8.1.2.2
|
the
Commitments of that Lender will be immediately
cancelled.
|
|
|
8.1.3
|
The
date for repayment or prepayment of a Lender's share in a Loan will
be:
|
|
|
8.1.3.1
|
the
Business Day following receipt by the Company of notice from the Lender
under clause 8.1.1 above; or
|
|
|
8.1.3.2
|
if
later, the latest date allowed by the relevant
law.
|
|
8.2
|
Mandatory prepayment - change
of control
|
If,
except in the context of a group reorganisation where the Company continues to
be controlled directly or indirectly, by PPL Corporation, the Company becomes
aware of any person (whether alone or together with any associated person or
persons) gaining control of the Company (for these purposes "associated person"
means, in relation to any person, a person who is (i) "acting in concert"
(as defined in the City Code on Takeovers and Mergers) with that person or
(ii) a "connected person" (as defined in section 839 of the Taxes Act)
of that person and "control" has the meaning given to it in Section 1159 of the
Companies Act 2006):
|
|
8.2.1
|
within
5 days of such date, the Company shall give notice of such change of
control to the Facility Agent;
|
|
|
8.2.2
|
the
Lenders and the Company shall immediately enter into negotiations for a
period of not more than 45 days from the date of the change of
control with a view to agreeing whether the Facility shall continue to be
made available and on what terms;
|
|
|
8.2.3
|
if
no such agreement is reached within the said period of 45 days
then:
|
|
|
8.2.3.1
|
any
Lender may on 10 days' notice to the Facility Agent and to the Company
require the repayment of its share in each Loan and cancel its Commitment;
and
|
|
|
8.2.3.2
|
the
Majority Lenders may on 10 days' notice to the Company require repayment
in full of all outstanding Loans and cancel the Total Commitments;
and
|
|
|
8.2.4
|
A
Lender shall not be obliged to fund any further utilisations of the
Facility (except for a Rollover Loan) during the negotiation period set
out in clause 8.2.2, and if no agreement is reached within such
negotiation period, during the 10 day notice period set out in clause
8.2.3.
|
|
8.3
|
Voluntary
prepayment
|
|
|
8.3.1
|
The
Company may, by giving not less than three Business Days' prior written
notice to the Facility Agent, prepay any Loan at any time in whole or in
part.
|
|
|
8.3.2
|
A
prepayment of part of a Loan drawn in US Dollars must be in a minimum
amount of $5,000,000 and an integral multiple of U.S.
$1,000,000.
|
|
|
8.3.3
|
A
prepayment of part of a Loan drawn in Sterling must be in a minimum amount
of £5,000,000 and an integral multiple of
£1,000,000.
|
|
|
8.3.4
|
A
prepayment of part of a Loan drawn in euros must be in a minimum amount of
€5,000,000 and an integral multiple of
€1,000,000.
|
|
8.4
|
Automatic
cancellation
|
The
Commitments of each Lender will be automatically cancelled at the close of
business on the last day of the relevant Availability Period.
|
8.5
|
Voluntary
cancellation
|
|
|
8.5.1
|
The
Company may, by giving not less than three Business Days' prior written
notice to the Facility Agent, cancel the unutilised amount of the Total
Commitments in whole or in part.
|
|
|
8.5.2
|
Partial
cancellation of the Total Commitments must be in a minimum amount of
£5,000,000 and an integral multiple of
£1,000,000.
|
|
|
8.5.3
|
Any
cancellation in part will be applied against the Commitment of each Lender
pro rata.
|
|
8.6
|
Involuntary prepayment and
cancellation
|
|
|
8.6.1
|
If
the Company is, or will be, required to pay to a Lender a Tax Payment or
an Increased Cost, the Company may, while the requirement continues, give
notice to the Facility Agent requesting prepayment and cancellation in
respect of that Lender.
|
|
|
8.6.2
|
After
notification under clause 8.6.1
above:
|
|
|
8.6.2.1
|
the
Company must repay or prepay that Lender's share in each Loan made to it
on the date specified in clause 8.6.3 below;
and
|
|
|
8.6.2.2
|
the
Commitments of that Lender will be immediately
cancelled.
|
|
|
8.6.3
|
The
date for repayment or prepayment of a Lender's share in a Loan will be the
last day of the current Term for that Loan or, if earlier, the date
specified by the Company in its
notification.
|
|
8.7
|
Re-borrowing of
Loans
|
Any
voluntary prepayment of a Loan may be re-borrowed on the terms of this
Agreement. Any mandatory or involuntary prepayment of a Loan may not
be re-borrowed.
|
8.8
|
Miscellaneous
provisions
|
|
|
8.8.1
|
Any
notice of prepayment and/or cancellation under this Agreement is
irrevocable and must specify the relevant date(s) and the affected Loans
and Commitments. The Facility Agent must notify the Lenders
promptly of receipt of any such
notice.
|
|
|
8.8.2
|
All
prepayments under this Agreement must be made with accrued interest on the
amount prepaid. No premium or penalty is payable in respect of
any prepayment except for Break
Costs.
|
|
|
8.8.3
|
The
Majority Lenders may agree a shorter notice period for a voluntary
prepayment or a voluntary
cancellation.
|
|
|
8.8.4
|
No
prepayment or cancellation is allowed except in accordance with the
express terms of this Agreement.
|
|
|
8.8.5
|
No
amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
|
|
9.
|
INTEREST
|
|
9.1
|
Calculation of
interest
|
The rate
of interest on each Loan for each Term is the percentage rate per annum equal to
the aggregate of the applicable:
|
|
9.1.1
|
Margin;
|
|
|
9.1.2
|
LIBOR;
and
|
|
|
9.1.3
|
Mandatory
Cost.
|
|
9.2
|
Payment of
interest
|
Except
where it is provided to the contrary in this Agreement, the Company must pay
accrued interest on each Loan made to it on the last day of each Term and also,
if the Term is longer than six months, on the dates falling at six-monthly
intervals after the first day of that Term.
|
9.3
|
Interest on overdue
amounts
|
|
|
9.3.1
|
If
the Company fails to pay any amount payable by it under the Finance
Documents, it must immediately on demand by the Facility Agent pay
interest on the overdue amount from its due date up to the date of actual
payment, both before, on and after
judgment.
|
|
|
9.3.2
|
Interest
on an overdue amount is payable at a rate determined by the Facility Agent
to be one per cent. per annum above the rate which would have been payable
if the overdue amount had, during the period of non-payment, constituted a
Loan in the currency of the overdue amount. For this purpose,
the Facility Agent may (acting
reasonably):
|
|
|
9.3.2.1
|
select
successive Terms of any duration of up to three months;
and
|
|
|
9.3.2.2
|
determine
the appropriate Rate Fixing Day for that
Term.
|
|
|
9.3.3
|
Notwithstanding
clause 9.3.2 above, if the overdue amount is a principal amount of a Loan
and becomes due and payable prior to the last day of its current Term,
then:
|
|
|
9.3.3.1
|
the
first Term for that overdue amount will be the unexpired portion of that
Term; and
|
|
|
9.3.3.2
|
the
rate of interest on the overdue amount for that first Term will be one per
cent. per annum above the rate then payable on that
Loan.
|
After the
expiry of the first Term for that overdue amount, the rate on the overdue amount
will be calculated in accordance with clause 9.3.2 above.
|
|
9.3.4
|
Interest
(if unpaid) on an overdue amount will be compounded with that overdue
amount at the end of each of its Terms but will remain immediately due and
payable.
|
|
9.4
|
Notification of rates of
interest
|
The
Facility Agent must promptly notify each relevant Party of the determination of
a rate of interest under this Agreement.
|
10.
|
TERMS
|
|
10.1
|
Selection
|
|
|
10.1.1
|
Each
Loan has one Term only.
|
|
|
10.1.2
|
The
Company must select the Term for a Loan in the relevant
Request.
|
|
|
10.1.3
|
Subject
to the following provisions of this Clause, each Term for a Loan will be
one, two, three or six months or for a period of one to thirty days
duration as selected by the Company or any other period agreed by the
Company and the Lenders.
|
|
|
10.1.4
|
A
Term for a Loan shall start on the Utilisation Date for that
Loan.
|
|
10.2
|
No overrunning the Final
Maturity Date
|
If a Term
would otherwise overrun the Final Maturity Date, it will be shortened so that it
ends on the Final Maturity Date.
|
10.3
|
Other
adjustments
|
The
Facility Agent and the Company may enter into such other arrangements as they
may agree for the adjustment of Terms and the consolidation and/or splitting of
Loans.
|
10.4
|
Notification
|
The
Facility Agent must notify the Company and the Lenders of the duration of each
Term promptly after ascertaining its duration.
|
11.
|
MARKET
DISRUPTION
|
|
11.1
|
Failure of a Reference Bank to
supply a rate
|
If LIBOR
is to be calculated by reference to the Reference Banks but a Reference Bank
does not supply a rate by 12.00 noon on a Rate Fixing Day, the applicable LIBOR
will, subject as provided below, be calculated on the basis of the rates of the
remaining Reference Banks.
|
11.2
|
Market
disruption
|
|
|
11.2.1
|
In
this Clause, each of the following events is a market disruption
event:
|
|
|
11.2.1.1
|
LIBOR
is to be calculated by reference to the Reference Banks but no, or only
one, Reference Bank supplies a rate by 12.00 noon on the Rate Fixing Day;
or
|
|
|
11.2.1.2
|
the
Facility Agent receives by close of business on the Rate Fixing Day
notification from Lenders whose shares in the relevant Loan exceed 50 per
cent. of that Loan that such Lenders are unable to obtain matching
deposits in the relevant interbank market or the rate at which they can do
so is in excess of LIBOR for the relevant
Term.
|
|
|
11.2.2
|
The
Facility Agent must promptly notify the Company and the Lenders of a
market disruption event.
|
|
|
11.2.3
|
After
notification under clause 11.2.2 above, the rate of interest on each
Lender's share in the affected Loan for the relevant Term will be the
aggregate of the applicable:
|
|
|
11.2.3.1
|
Margin;
|
|
|
11.2.3.2
|
rate
notified to the Facility Agent by that Lender as soon as practicable, and
in any event before interest is due to be paid in respect of that Term, to
be that which expresses as a percentage rate per annum the cost to that
Lender of funding its share in that Loan from whatever source it may
reasonably select; and
|
|
|
11.2.3.3
|
Mandatory
Cost.
|
|
11.3
|
Alternative basis of interest
or funding
|
|
|
11.3.1
|
If
a market disruption event occurs and the Facility Agent or the Company so
requires, the Company and the Facility Agent must enter into negotiations
for a period of not more than 30 days with a view to agreeing an
alternative basis for determining the rate of interest and/or funding for
the affected Loan and any future
Loan.
|
|
|
11.3.2
|
Any
alternative basis agreed will be, with the prior consent of all the
Lenders, binding on all the
Parties.
|
|
12.
|
TAXES
|
|
12.1
|
General
|
In this
Clause:
Tax Credit means a credit
against any Tax or any relief or remission for Tax (or its
repayment).
U.K. Lender means a Lender
which is within the charge to U.K. corporation tax in respect of, and
beneficially entitled to, a payment of interest on a Loan made by a person that
was a bank for the purposes of section 879 of the ITA at the time the Loan was
made.
|
12.2
|
Tax
gross-up
|
|
|
12.2.1
|
The
Company must make all payments to be made by it under the Finance
Documents without any Tax Deduction, unless a Tax Deduction is required by
law.
|
|
|
12.2.2
|
If:
|
|
|
12.2.2.1
|
a
Lender is not, or ceases to be, a U.K. Lender;
or
|
|
|
12.2.2.2
|
the
Company or a Lender is aware that the Company must make a Tax Deduction
(or that there is a change in the rate or the basis of a Tax
Deduction),
|
it must
promptly notify the Facility Agent. The Facility Agent must then
promptly notify the affected Parties.
|
|
12.2.3
|
Except
as provided below, if a Tax Deduction is required by law to be made by the
Company or the Facility Agent, the amount of the payment due from the
Company will be increased to an amount which (after making the Tax
Deduction) leaves an amount equal to the payment which would have been due
if no Tax Deduction had been
required.
|
|
|
12.2.4
|
Except
as provided below, the Company is not required to make an increased
payment under clause 12.2.3 above to a Lender that is not, or has ceased
to be, a U.K. Lender in excess of the amount that the Company would have
had to pay had the Lender been, or not ceased to be, a U.K.
Lender.
|
|
|
12.2.5
|
Clause
12.2.4 above will not apply if the Lender has ceased to be a U.K. Lender
by reason of any change after the date it became a Lender under this
Agreement in (or in the interpretation, administration, or application of)
any law or double taxation agreement or any published practice or
concession of any relevant taxing
authority.
|
|
|
12.2.6
|
Where
a Lender fails to give notice under clause 12.2.2 above within 60 days
after it obtains knowledge (or, after reasonable due enquiry, ought to
have obtained knowledge) of such event, then such Lender shall, with
respect to any claim made by it under this Clause 12.2 (Tax gross-up),
only be entitled to claim an increased payment for the period from and
after the date that is 60 days prior to the date on which the Lender does
give notice.
|
|
|
12.2.7
|
If
the Company is required to make a Tax Deduction, it must make the minimum
Tax Deduction and must make any payment required in connection with that
Tax Deduction within the time allowed by
law.
|
|
|
12.2.8
|
Within
30 days of making either a Tax Deduction or a payment required in
connection with a Tax Deduction, the Company must deliver to the Facility
Agent for the relevant Finance Party entitled to the payment a statement
under section 975 of the ITA or other evidence satisfactory to that
Finance Party (acting reasonably) that the Tax Deduction has been made or
(as applicable) the appropriate payment has been paid to the relevant
taxing authority.
|
|
12.3
|
Tax
indemnity
|
|
|
12.3.1
|
Except
as provided below, the Company must indemnify a Finance Party against any
loss or liability which that Finance Party (in its absolute discretion)
determines will be or has been suffered (directly or indirectly) by that
Finance Party for or on account of Tax in relation to a payment received
or receivable (or any payment deemed to be received or receivable) under a
Finance Document.
|
|
|
12.3.2
|
Clause
12.3.1 above does not apply to any Tax assessed on a Finance Party under
the laws of the jurisdiction in
which:
|
|
|
12.3.2.1
|
that
Finance Party is incorporated or, if different, the jurisdiction (or
jurisdictions) in which that Finance Party is treated as resident for tax
purposes; or
|
|
|
12.3.2.2
|
that
Finance Party's Facility Office is located in respect of amounts received
or receivable in that jurisdiction,
|
if that
Tax is imposed on or calculated by reference to the net income received or
receivable by that Finance Party. However, any payment deemed to be received or
receivable, including any amount treated as income but not actually received by
the Finance Party, such as a Tax Deduction, will not be treated as net income
received or receivable for this purpose.
|
|
12.3.3
|
A
Finance Party making, or intending to make, a claim under clause 12.3.1
above must promptly notify the Company of the event which will give, or
has given, rise to the claim.
|
|
12.4
|
Tax
Credit
|
If the
Company makes a Tax Payment and the relevant Finance Party has obtained and used
any Tax Credit that is attributable to that Tax Payment, then, if in its
discretion (acting reasonably) it can do so without any further adverse
consequences for it, that Finance Party must pay an amount to the Company which
that Finance Party determines (in its discretion, acting reasonably) will leave
it (after that payment) in the same after-tax position as it would have been in
if the Tax Payment had not been required to be made by the
Company. The relevant Finance Party shall take those steps it
considers in its opinion reasonable to seek and claim any tax
credit.
|
12.5
|
Tax Warranty of
Lenders
|
Each
Lender severally warrants to the Company on the date it becomes a Lender that it
is a U.K. Lender. A Lender must promptly notify the Company if it
ceases to be a U.K. Lender after this Agreement is entered into.
|
12.6
|
Stamp
taxes
|
The
Company must pay and indemnify each Finance Party against any stamp duty,
registration or other similar Tax payable in connection with the entry into,
performance or enforcement of any Finance Document, except for any such Tax
payable in connection with the entry into of a Transfer
Certificate.
|
12.7
|
Value added
taxes
|
|
|
12.7.1
|
All
costs and expenses payable under a Finance Document by the Company is
exclusive of any value added tax or any other Tax of a similar nature
which might be chargeable in connection with that amount. If
any such Tax is chargeable, the Company must pay to the Finance Party (in
addition to and at the same time as paying that amount) an amount equal to
the amount of that Tax.
|
|
|
12.7.2
|
The
obligation of the Company under clause 12.7.1 above will be reduced to the
extent that the Finance Party determines (acting reasonably) that it is
entitled to repayment or a credit in respect of the relevant
Tax.
|
|
13.
|
INCREASED
COSTS
|
|
13.1
|
Increased
Costs
|
Except as
provided below in this Clause, the Company must pay to a Finance Party the
amount of any Increased Cost incurred by that Finance Party or any of its
Affiliates as a result of:
|
|
13.1.1
|
the
introduction of, or any change in, or any change in the interpretation or
application of, any law or regulation;
or
|
|
|
13.1.2
|
compliance
with any law or regulation,
|
made
after the date of this Agreement.
|
13.2
|
Exceptions
|
The
Company need not make any payment for an Increased Cost to the extent that the
Increased Cost is:
|
|
13.2.1
|
compensated
for under another Clause or would have been but for an exception to that
Clause;
|
|
|
13.2.2
|
a
Tax on the overall net income of a Finance Party or any of its
Affiliates;
|
|
|
13.2.3
|
attributable
to a Finance Party or its Affiliate wilfully failing to comply with any
law or regulation; or
|
|
|
13.2.4
|
incurred
in any period or periods ending prior to the date falling 60 days before
the date any demand in relation to that Increased Cost is made (save where
the relevant Finance Party (after due enquiry) was unaware of the
existence of such Increased Cost or where such Increased Cost is caused by
reason of a change in (or in the interpretation, administration or
application of) law with retrospective
effect).
|
|
13.3
|
Claims
|
A Finance
Party intending to make a claim for an Increased Cost must notify the Company
promptly of the circumstances giving rise to, and the amount of, the
claim.
|
14.
|
MITIGATION
|
|
14.1
|
Mitigation
|
|
|
14.1.1
|
Each
Finance Party must, in consultation with the Company (other than upon the
occurrence of an event referred to at Clause 14.1.1.4 where no such
consultation is required), take all reasonable steps to mitigate any
circumstances which arise and which result or would result
in:
|
|
|
14.1.1.1
|
any
Tax Payment or Increased Cost being payable to that Finance
Party;
|
|
|
14.1.1.2
|
that
Finance Party being able to exercise any right of prepayment and/or
cancellation under this Agreement by reason of any
illegality;
|
|
|
14.1.1.3
|
that
Finance Party incurring any cost of complying with the minimum reserve
requirements of the European Central Bank;
or
|
|
|
14.1.1.4
|
the
occurrence of any market disruption
event,
|
including
transferring its rights and obligations under the Finance Documents to an
Affiliate or changing its Facility Office.
|
|
14.1.2
|
A
Finance Party is not obliged to take any step under this Subclause if, in
the opinion of that Finance Party (acting reasonably), to do so might be
prejudicial to it.
|
|
|
14.1.3
|
Each
Finance Party must promptly notify the Company of any circumstances as
described in Clauses 14.1.1.1 to
14.1.1.4.
|
|
|
14.1.4
|
The
Company must indemnify each Finance Party for all costs and expenses
reasonably incurred by it as a result of any step taken under this Clause
14.1 (Mitigation).
|
|
|
14.1.5
|
This
clause does not in any way limit the obligations of the Company under the
Finance Documents.
|
|
14.2
|
Substitution
|
Notwithstanding
Clause 14.1, if any circumstances arise which result in:
|
|
14.2.1
|
any
Tax Payment or Increased Cost being payable to that Finance
Party;
|
|
|
14.2.2
|
that
Finance Party being able to exercise any right of prepayment and/or
cancellation under this Agreement by reason of any
illegality;
|
|
|
14.2.3
|
that
Finance Party incurring any cost of complying with the minimum reserve
requirements of the European Central Bank;
or
|
|
|
14.2.4
|
the
occurrence of any market disruption
event,
|
then the
Company, at its expense, at any time within 180 days after the occurrence of the
relevant event or circumstance, so long as no Default is outstanding, may by
notice to such Finance Party require it (and, if applicable, its Affiliate) to
novate all (and not part only) its rights and obligations hereunder (including
its Commitments and its share of any Loans) in accordance with Clause 27 to a
bank or financial institution specified by the Company and acceptable to the
Facility Agent which is willing to take such a novation as aforesaid provided
that:
|
|
14.2.5
|
such
novation shall not conflict with or violate any law applicable to or
binding on such Finance Party (or, if applicable, its Affiliate);
and
|
|
|
14.2.6
|
the
Company shall have paid to the Finance Party (or, if applicable, its
Affiliate) all amounts accrued and owing
hereunder.
|
Notwithstanding
the above, the Company shall not be entitled to require a novation under this
Clause 14.2 with respect to any Finance Party if:
|
|
14.2.7
|
the
relevant Finance Party shall have mitigated the effect of the relevant
event or circumstance as provided in Clause 14.1.1.1, and the novation
would have no greater or further mitigating effect;
or
|
|
|
14.2.8
|
the
relevant event or circumstances are applicable to all Finance
Parties.
|
|
14.3
|
Conduct of business by a
Finance Party
|
No term
of this Agreement will:
|
|
14.3.1
|
interfere
with the right of any Finance Party to arrange its affairs (Tax or
otherwise) in whatever manner it thinks fit or oblige any Finance Party to
investigate or claim any Tax Credit;
or
|
|
|
14.3.2
|
oblige
any Finance Party to disclose any information relating to its affairs (Tax
or otherwise) or any computation in respect of
Tax.
|
|
15.
|
PAYMENTS
|
|
15.1
|
Place
|
Unless a
Finance Document specifies that payments under it are to be made in another
manner, all payments by a Party (other than the Facility Agent) under the
Finance Documents must be made to the Facility Agent to its account at such
office or bank:
|
|
15.1.1
|
in
the principal financial centre of the country of the relevant currency;
or
|
|
|
15.1.2
|
in
the case of euro, in the principal financial centre of a Participating
Member State or London,
|
as it may
notify to that Party for this purpose by not less than five Business Days' prior
notice.
|
15.2
|
Funds
|
Payments
under the Finance Documents to the Facility Agent must be made for value on the
due date at such times and in such funds as the Facility Agent may specify to
the Party concerned as being customary at the time for the settlement of
transactions in the relevant currency in the place for payment.
|
15.3
|
Distribution
|
|
|
15.3.1
|
Each
payment received by the Facility Agent under the Finance Documents for
another Party must, except as provided below, be made available by the
Facility Agent to that Party by payment (as soon as practicable after
receipt) to its account with such office or
bank:
|
|
|
15.3.1.1
|
in
the principal financial centre of the country of the relevant currency;
or
|
|
|
15.3.1.2
|
in
the case of euro, in the principal financial centre of a Participating
Member State or London,
|
as it may
notify to the Facility Agent for this purpose by not less than five Business
Days' prior notice.
|
|
15.3.2
|
The
Facility Agent may apply any amount received by it for the Company in or
towards payment (as soon as practicable after receipt) of any amount due
from the Company under the Finance Documents or in or towards the purchase
of any amount of any currency to be so
applied.
|
|
|
15.3.3
|
Where
a sum is paid to the Facility Agent under this Agreement for another
Party, the Facility Agent is not obliged to pay that sum to that Party
until it has established that it has actually received
it. However, the Facility Agent may assume that the sum has
been paid to it, and, in reliance on that assumption, make available to
that Party a corresponding amount. If it transpires that the
sum has not been received by the Facility Agent, that Party must
immediately on demand by the Facility Agent refund any corresponding
amount made available to it together with interest on that amount from the
date of payment to the date of receipt by the Facility Agent at a rate
calculated by the Facility Agent to reflect its cost of
funds.
|
|
15.4
|
Currency
|
|
|
15.4.1
|
Unless
a Finance Document specifies that payments under it are to be made in a
different manner, the currency of each amount payable under the Finance
Documents is determined under this
Clause.
|
|
|
15.4.2
|
Interest
is payable in the currency in which the relevant amount in respect of
which it is payable is denominated.
|
|
|
15.4.3
|
A
repayment or prepayment of any principal amount (or overdue amount) is
payable in the currency in which that principal amount (or overdue amount)
is denominated on its due date.
|
|
|
15.4.4
|
Amounts
payable in respect of costs and expenses and Taxes are payable in the
currency in which they are
incurred.
|
|
|
15.4.5
|
Each
other amount payable under the Finance Documents is payable in
Sterling.
|
|
|
15.4.6
|
Any
amount expressed to be payable in a currency other than Sterling shall be
paid in that other currency.
|
|
15.5
|
No set-off or
counterclaim
|
All
payments made by the Company under the Finance Documents must be made without
set-off or counterclaim.
|
15.6
|
Business
Days
|
|
|
15.6.1
|
If
a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment will instead be the next
Business Day in the same calendar month (if there is one) or the preceding
Business Day (if there is not) or whatever day the Facility Agent
determines is market practice.
|
|
|
15.6.2
|
During
any extension of the due date for payment of any principal (or overdue
amount) under this Agreement interest is payable on that principal (or
overdue amount) at the rate payable on the original due
date.
|
|
15.7
|
Partial
payments
|
|
|
15.7.1
|
If
any Administrative Party receives a payment insufficient to discharge all
the amounts then due and payable by the Company under the Finance
Documents, the Administrative Party must apply that payment towards the
obligations of the Company under the Finance Documents in the following
order:
|
|
|
15.7.1.1
|
first, in or towards
payment pro rata of any unpaid fees, costs and expenses of the
Administrative Parties under the Finance
Documents;
|
|
|
15.7.1.2
|
secondly, in or towards
payment pro rata of any accrued interest or fee due but unpaid under this
Agreement;
|
|
|
15.7.1.3
|
thirdly, in or towards
payment pro rata of any principal amount due but unpaid under this
Agreement; and
|
|
|
15.7.1.4
|
fourthly, in or towards
payment pro rata of any other sum due but unpaid under the Finance
Documents.
|
|
|
15.7.2
|
The
Facility Agent must, if so directed by all the Lenders, vary the order set
out in sub-clauses 15.7.1.1 to 15.7.1.4
above.
|
|
|
15.7.3
|
This
Subclause will override any appropriation made by the
Company.
|
|
15.8
|
Timing of
payments
|
If a
Finance Document does not provide for when a particular payment is due, that
payment will be due within three Business Days of demand by the relevant Finance
Party.
|
16.
|
REPRESENTATIONS
|
|
16.1
|
Representations
|
The
representations set out in this Clause are made by the Company to each
Finance Party.
|
16.2
|
Status
|
It is a
limited liability company, duly incorporated and validly existing under the
Companies Xxx 0000 in England and Wales.
|
16.3
|
Powers and
authority
|
It has
the power to enter into and perform, and has taken all necessary action to
authorise the entry into and performance of, the Finance Documents to which it
is or will be a party and the transactions contemplated by those Finance
Documents.
|
16.4
|
Legal
validity
|
Subject
to any general principles of law limiting its obligations and referred to in any
legal opinion required under this Agreement, each Finance Document to which it
is a party is its legally binding, valid and enforceable
obligation.
|
16.5
|
Non-conflict
|
The entry
into and performance by it of, and the transactions contemplated by, the Finance
Documents do not conflict with any borrowing or other power or restricted
granted or imposed by:
|
|
16.5.1
|
any
law or regulation applicable to it and violation of which has or is likely
to have a Material Adverse Effect;
or
|
|
|
16.5.2
|
its
constitutional documents.
|
|
16.6
|
No
default
|
|
|
16.6.1
|
No
Event of Default is continuing or might reasonably be expected to result
from the making of any Loan.
|
|
|
16.6.2
|
No
other event or circumstance is outstanding which constitutes a default
under any other agreement or instrument which is binding on it or any of
its Subsidiaries or to which its (or any of its Subsidiaries’) assets are
subject which might have a Material Adverse
Effect.
|
|
16.7
|
Authorisations
|
All
authorisations required by it (including any authorisations required under PUHCA
or the Act, if any) in connection with the entry into, performance, validity and
enforceability of, and the transactions contemplated by, the Finance Documents
have been obtained or effected (as appropriate) and are in full force and
effect.
|
16.8
|
Financial
statements
|
Its
audited consolidated financial statements most recently delivered to the
Facility Agent (which, at the date of this Agreement, are the Original Financial
Statements):
|
|
16.8.1
|
have
been prepared in accordance with accounting principles and practices
generally accepted in its jurisdiction of incorporation, consistently
applied; and
|
|
|
16.8.2
|
fairly
represent its consolidated financial condition as at the date to which
they were drawn up,
|
except,
in each case, as disclosed to the contrary in those financial
statements..
|
16.9
|
No material adverse
change
|
Other
than as disclosed in writing to the Mandated Lead Arrangers prior to the date of
this Agreement there has been no material adverse change in its consolidated
financial condition since the date to which the Original Financial Statements
were drawn up.
|
16.10
|
Litigation
No litigation, arbitration or
administrative proceedings are current or, to its knowledge, pending or
threatened, which, if adversely determined, are reasonably likely to have
a Material Adverse Effect.
|
|
16.11
|
Winding Up
No meeting has been convened for its
winding-up and, so far as it is aware, no petition, application or the
like is outstanding for its winding-up.
|
|
16.12
|
Non-Violation of other
Agreements:
Its entry into, exercise of its rights
and/or performance of or compliance with its obligations under this
Agreement do not and will not violate, to an extent or in a manner which
has or is likely to have a Material Adverse Effect on it, any agreement to
which it is a party or which is binding on
it.
|
|
16.13
|
Governing Law and
Enforcement
|
|
|
16.13.1
|
The
choice of English law as the governing law of the Finance Documents will
be recognised and enforced in its jurisdiction of
incorporation.
|
|
|
16.13.2
|
Any
judgement obtained in England in relation to a Finance Document will be
recognised and enforced in its jurisdiction of
incorporation.
|
|
16.14
|
Deduction of
Tax
It is not required to make any deduction
for or on account of Tax from any payment it may make under any Finance
Document to a Lender which is a UK
Lender.
|
|
16.15
|
No filing or stamp
taxes
Under the law of its jurisdiction of
incorporation it is not necessary that the Finance Documents be filed,
recorded or enrolled with any court or other authority in that
jurisdiction or that any stamp, registration or similar tax be paid on or
in relation to the Finance Documents or the transactions contemplated by
the Finance Documents.
|
|
16.16
|
No misleading
information
|
|
|
16.16.1
|
Any
factual information provided by any member of the Group for the purposes
of the Information Package was true and accurate in all material respects
as at the date it was provided or as at the date (if any) at which it is
stated.
|
|
|
16.16.2
|
The
financial projections contained in the Information Package have been
prepared on the basis of recent historical information and on the basis of
reasonable assumptions.
|
|
|
16.16.3
|
Nothing
has occurred or been omitted from the Information Package and no
information has been given or withheld that results in the information
contained in the Information Package being untrue or misleading in any
material respect.
|
|
16.17
|
Pari Passu
ranking
Its payment obligations under the Finance
Documents rank at least pari passu with the claims of all its other
unsecured and unsubordinated creditors, except for obligations mandatorily
preferred by law applying to companies
generally.
|
|
16.18
|
Times for making
representations
|
|
|
16.18.1
|
The
representations set out in this Clause are made by the Company on the date
of this Agreement.
|
|
|
16.18.2
|
The
representations in Clauses 16.2 to 16.8 (inclusive), 16.10 to 16.13
(inclusive) are deemed to be repeated by the Company on the date of each
Request and the first day of each
Term.
|
|
|
16.18.3
|
When
a representation is repeated, it is applied to the circumstances existing
at the time of repetition.
|
|
17.
|
INFORMATION
COVENANTS
|
|
17.1
|
Financial
statements
|
|
|
17.1.1
|
The
Company must supply to the Facility Agent in sufficient copies for all the
Lenders:
|
|
|
17.1.1.1
|
its
audited consolidated financial statements for each of its financial years;
and
|
|
|
17.1.1.2
|
its
interim consolidated financial statements for the first half-year of each
of its financial years.
|
|
|
17.1.2
|
All
financial statements must be supplied as soon as they are available
and:
|
|
|
17.1.2.1
|
in
the case of the Company's audited consolidated financial statements,
within 180 days; and
|
|
|
17.1.2.2
|
in
the case of the Company's interim financial statements, within
90 days,
|
of the
end of the relevant financial period.
|
17.2
|
Form of Financial
Statement
|
If any
financial statement delivered or to be delivered to the Facility Agent under
Clause 17.1 is not to be or, as the case may be, has not been prepared in
accordance with Applicable Accounting Principles:
|
|
17.2.1
|
The
Company and the Facility Agent (on behalf of and after consultation with
all the Lenders) shall, on the request of the Facility Agent or the
Company, negotiate in good faith with a view to agreeing such amendments
to the above financial ratio and/or the definitions of the terms used in
it as are necessary to give the Lenders comparable protection to that
contemplated at the date of this
Agreement;
|
|
|
17.2.2
|
If
amendments are agreed by the Company and the Majority Lenders within 25
days, those amendments shall take effect in accordance with the terms of
that agreement;
|
|
|
17.2.3
|
If
such amendments are not so agreed within 25 days, the Company
shall:
|
|
|
17.2.3.1
|
within
30 days after the end of that 25 day period;
and
|
|
|
17.2.3.2
|
with
all subsequent financial statements to be delivered to the Facility Agent
under Clause 17.1,
|
deliver
to the Facility Agent details of all such adjustments as need to be made to the
relevant financial statements to bring them into line with the Companies Xxx
0000 (as in effect on the date of this Agreement) and Applicable Accounting
Principles.
|
17.3
|
Compliance
Certificate
|
|
|
17.3.1
|
The
Company must supply to the Facility Agent a Compliance Certificate with
each set of its financial statements, sent to the Facility Agent under
this Agreement.
|
|
|
17.3.2
|
A
Compliance Certificate must be signed by two directors of the
Company.
|
|
17.4
|
Information -
miscellaneous
|
The
Company must supply to the Facility Agent, in sufficient copies for all the
Lenders if the Facility Agent so requests:
|
|
17.4.1
|
copies
of all documents despatched by the Company to its creditors generally or
any class of them at the same time as they are
despatched;
|
|
|
17.4.2
|
promptly
upon becoming aware of them, details of any litigation, arbitration or
administrative proceedings which are current, threatened or pending and
which might, if adversely determined, have a Material Adverse
Effect;
|
|
|
17.4.3
|
promptly
on request, a list of the then current Material Subsidiaries;
and
|
|
|
17.4.4
|
promptly
on request, such further information regarding the financial condition and
operations of the Group as any Finance Party through the Facility Agent
may reasonably request.
|
|
17.5
|
Notification of
Default
|
|
|
17.5.1
|
The
Company must notify the Facility Agent of any Default (and the steps, if
any, being taken to remedy it) promptly upon becoming aware of its
occurrence.
|
|
|
17.5.2
|
Promptly
on request by the Facility Agent, the Company must supply to the Facility
Agent a certificate signed by two of its directors on its behalf,
certifying that no Default is outstanding or, if a Default is outstanding,
specifying the Default and the steps, if any, being taken to remedy
it.
|
|
17.6
|
Use of
websites
|
|
|
17.6.1
|
Except
as provided below, the Company may deliver any information under this
Agreement to a Lender by posting it on to an electronic website
if:
|
|
|
17.6.1.1
|
the
Facility Agent and the Lender
agree;
|
|
|
17.6.1.2
|
the
Company and the Facility Agent designate an electronic website for this
purpose;
|
|
|
17.6.1.3
|
the
Company notifies the Facility Agent of the address of and password for the
website; and
|
|
|
17.6.1.4
|
the
information posted is in a format agreed between the Company and the
Facility Agent.
|
The
Facility Agent must supply each relevant Lender with the address of and password
for the website.
|
|
17.6.2
|
Notwithstanding
the above, the Company must supply to the Facility Agent in paper form a
copy of any information posted on the website together with sufficient
copies for:
|
|
|
17.6.2.1
|
any
Lender not agreeing to receive information via the website;
and
|
|
|
17.6.2.2
|
within
ten Business Days of request any other Lender, if that Lender so
requests.
|
|
|
17.6.3
|
The
Company must promptly upon becoming aware of its occurrence, notify the
Facility Agent if:
|
|
|
17.6.3.1
|
the
website cannot be accessed;
|
|
|
17.6.3.2
|
the
website or any information on the website is infected by any electronic
virus or similar software;
|
|
|
17.6.3.3
|
the
password for the website is changed;
or
|
|
|
17.6.3.4
|
any
information to be supplied under this Agreement is posted on the website
or amended after being posted.
|
If the
circumstances in sub-clauses 17.6.3.1 or 17.6.3.2 above occur, the Company must
supply any information required under this Agreement in paper form.
|
17.7
|
Know your customer
requirements
|
|
|
17.7.1
|
The
Company must promptly on the request of any Finance Party supply to that
Finance Party any documentation or other evidence which is reasonably
requested by that Finance Party (whether for itself, on behalf of any
Finance Party or any prospective new Lender) to enable a Finance Party or
prospective new Lender to carry out and be satisfied with the results of
all applicable know your customer
requirements.
|
|
|
17.7.2
|
Each
Lender must promptly on the request of the Facility Agent supply to the
Facility Agent any documentation or other evidence which is reasonably
required by the Facility Agent to carry out and be satisfied with the
results of all know your customer
requirements.
|
|
18.
|
FINANCIAL
COVENANTS
|
|
18.1
|
Definitions
|
In this
Clause:
Cash means, at any time, cash
denominated in a currency of the United States of America, the United Kingdom,
any member state of the European Economic Area or any Participating Member State
in hand or at bank and (in the latter case) credited to an account in the name
of a member of the Group with an Acceptable Bank and to which a member of the
Group is alone (or together with other members of the Group) beneficially
entitled and for so long as:
|
|
(a)
|
that
cash is repayable:
|
|
|
(i)
|
if
that cash is deposited with a Lender, within 270 days after the relevant
date of calculation; or
|
|
|
(ii)
|
if
that cash is deposited with any other lender or financial institution,
within 45 days after the relevant date of
calculation;
|
|
|
(b)
|
repayment
of that cash is not contingent on the prior discharge of any other
indebtedness of any member of the Group or of any other person whatsoever
or on the satisfaction of any other
condition;
|
|
|
(c)
|
there
is no Security Interest over that cash other than Security Interests
permitted under Clause 19.5.3.9 (Negative
pledge);
and
|
|
|
(d)
|
the
cash is freely and (except as mentioned in paragraph (a) above)
immediately available to be applied in repayment or prepayment of the
Facility.
|
Cash Equivalent Investments
means at any time:
|
|
(a)
|
certificates
of deposit maturing within one year after the relevant date of calculation
and issued by an Acceptable Bank;
|
|
|
(b)
|
any
investment in marketable debt obligations issued or guaranteed by the
government of the United States of America, the United Kingdom, any member
state of the European Economic Area or any Participating Member State or
by an instrumentality or agency of any of them having an equivalent credit
rating, maturing within one year after the relevant date of calculation
and not convertible or exchangeable to any other
security;
|
|
|
(c)
|
commercial
paper not convertible or exchangeable to any other
security:
|
|
|
(i)
|
for
which a recognised trading market
exists;
|
|
|
(ii)
|
issued
by an issuer incorporated in the United States of America, the United
Kingdom, any member state of the European Economic Area or any
Participating Member State;
|
|
|
(iii)
|
which
matures within one year after the relevant date of calculation;
and
|
|
|
(iv)
|
which
has a credit rating of either A-1 or higher by Standard & Poor's
Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by
Xxxxx'x Investor Services Limited, or, if no rating is available in
respect of the commercial paper, the issuer of which has, in respect of
its long-term unsecured and non-credit enhanced debt obligations, an
equivalent rating;
|
|
|
(d)
|
sterling
bills of exchange eligible for rediscount at the Bank of England (or their
dematerialised equivalent) and accepted by an Acceptable
Bank;
|
|
|
(e)
|
any
investment in money market funds
which:
|
|
|
(i)
|
have
a credit rating of either A-1 or higher by Standard & Poor's Rating
Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Xxxxx'x
Investor Services Limited;
|
|
|
(ii)
|
which
invest substantially all their assets in securities of the types described
in Clauses (a) to (d) above; and
|
|
|
(iii)
|
can
be turned into cash on not more than 30 days' notice;
or
|
|
|
(f)
|
any
other debt security approved by the Majority
Lenders,
|
in each
case, denominated in a currency of the United States of America, the United
Kingdom, any member state of the European Economic Area or any Participating
Member State and to which any member of the Group is alone (or together with
other members of the Group beneficially entitled at that time and which is not
issued or guaranteed by any member of the Group or subject to any Security
Interest (other than Security Interests permitted under Clause 19.5.3.9 (Negative pledge).
Consolidated EBITDA means the
consolidated net pre-taxation profits of the Group for a Measurement Period as
adjusted by:
|
|
(a)
|
adding
back Interest Payable;
|
|
|
(b)
|
taking
no account of any exceptional or extraordinary
item;
|
|
|
(c)
|
excluding
any amount attributable to minority
interests;
|
|
|
(d)
|
adding
back depreciation and amortisation;
and
|
|
|
(e)
|
taking
no account of any revaluation of an asset or any loss or gain over book
value arising on the disposal of an asset (otherwise than in the ordinary
course of trading) by a member of the Group during that Measurement
Period.
|
Interest Payable means, in
relation to any Measurement Period, all interest payable and similar charges of
the Group expressed in Sterling and determined on a consolidated basis in
accordance with Applicable Accounting Principles.
Measurement Period means a
half-year of the Company.
Regulatory Asset Base means
the regulatory asset base of the Company most recently published by
OFGEM.
Total Net Debt means, in
respect of the Company, at any time the consolidated Financial Indebtedness of
the Company which is required to be accounted for as debt in the annual
financial statements of the Company less the aggregate at such time of all Cash
or Cash Equivalent Investments held by any member of the Group.
|
18.2
|
Interpretation
|
|
|
18.2.1
|
Except
as provided to the contrary in this Agreement, an accounting term used in
this Clause is to be construed in accordance with the principles applied
in connection with the Original Financial
Statements.
|
|
|
18.2.2
|
Any
amount in a currency other than Sterling is to be taken into account at
its Sterling equivalent calculated on the basis
of:
|
|
|
18.2.2.1
|
the
Facility Agent's spot rate of exchange for the purchase of the relevant
currency in the London foreign exchange market with Sterling at or about
11.00 a.m. on the day the relevant amount falls to be calculated;
or
|
|
|
18.2.2.2
|
if
the amount is to be calculated on the last day of a financial period of
the Company, the relevant rates of exchange used by the Company in, or in
connection with, its financial statements for that
period.
|
|
|
18.2.3
|
No
item must be credited or deducted more than once in any calculation under
this Clause.
|
|
18.3
|
Interest
cover
|
The
Company must ensure that the ratio of Consolidated EBITDA to Interest Payable is
not, at the end of each Measurement Period, less than
3 to 1.
|
18.4
|
Asset
Cover
|
The
Company must ensure that the Total Net Debt does not at any time exceed 85% of
its Regulatory Asset Base.
|
19.
|
General
Covenants
|
|
19.1
|
General
|
The
Company agrees to be bound by the covenants set out in this Clause relating to
it and, where the covenant is expressed to apply to each member of the Group,
the Company must ensure that each of its Subsidiaries performs that
covenant.
|
19.2
|
Authorisations
|
The
Company must promptly obtain, maintain and comply with the terms of any
authorisation required under any law or regulation to enable it to perform its
obligations under, or for the validity or enforceability of, any Finance
Document.
|
19.3
|
Compliance with
laws
|
Each
member of the Group must comply in all respects with all laws to which it is
subject where failure to do so is reasonably likely to have a Material Adverse
Effect.
|
19.4
|
Pari passu
ranking
|
The
Company must ensure that its payment obligations under the Finance Documents
rank at least pari passu with all its other present and future unsecured payment
obligations, except for obligations mandatorily preferred by law applying to
companies generally.
|
19.5
|
Negative
pledge
|
In this
clause 19.5, “Quasi-Security” means an
arrangement or transaction described in clause 19.5.2 below.
|
|
19.5.1
|
Except
as provided below, neither the Company nor any Material Subsidiary may
create or allow to exist any Security Interest or Quasi-Security on any of
its assets.
|
|
|
19.5.2
|
Except
as provided below, neither the Company nor any Material Subsidiary
may:
|
|
|
19.5.2.1
|
sell,
transfer or otherwise dispose of any of its assets on terms whereby they
are or may be leased to or re-acquired by the Company or any Material
Subsidiary;
|
|
|
19.5.2.2
|
sell,
transfer or otherwise dispose of any of its receivables on recourse
terms;
|
|
|
19.5.2.3
|
enter
into any arrangement under which money or the benefit of a bank or other
account may be applied, set-off or made subject to a combination of
accounts; or
|
|
|
19.5.2.4
|
enter
into any other preferential arrangement having a similar
effect,
|
in
circumstances where the arrangement or transaction is entered into primarily as
a method of raising Financial Indebtedness or of financing the acquisition of an
asset.
|
|
19.5.3.1
|
any
Security Interest or Quasi-Security created under or in connection with or
arising out of the Balancing and Settlement Code or any transactions or
arrangements entered into in connection with the management of risks
relating thereto;
|
|
|
19.5.3.2
|
in
respect of overdue amounts which have not been overdue for more than 30
days and/or are being contested in good faith, liens arising solely by
operation of law or by order of a court or tribunal (or by an agreement of
similar effect) and/or in the ordinary course of business or
operations;
|
|
|
19.5.3.3
|
any
Security Interest or Quasi-Security created after the date of this
Agreement for the sole purpose of re-financing all or any part of the
Facility (at the option of the Company) provided that the monies borrowed
or raised on such Security Interest or Quasi-Security shall, to that
extent, be applied reasonably promptly in accordance with this Agreement
in or towards repayment of the relevant
Facility;
|
|
|
19.5.3.4
|
any
Security Interest or Quasi-Security arising out of title retention
provisions in a supplier's standard conditions of supply of goods acquired
in the ordinary course of business or
operations;
|
|
|
19.5.3.5
|
any
Security Interest or Quasi-Security created on any asset acquired after
the date of this Agreement for the sole purpose of financing or
re-financing that acquisition and securing a principal, capital or nominal
amount not exceeding the cost of that acquisition, provided that the
Security Interest or Quasi-Security is removed or discharged within 6
months of the date of acquisition of such
asset;
|
|
|
19.5.3.6
|
any
Security Interest or Quasi-Security outstanding on or over any asset
acquired after the date of this Agreement and in existence at the date of
such acquisition, provided that the Security Interest or Quasi-Security is
removed or discharged within 6 months of the date of acquisition of such
asset;
|
|
|
19.5.3.7
|
any
Security Interest or Quasi-Security created or outstanding on or over any
asset of any company which becomes a Material Subsidiary of the Company
after the date of this Agreement where such Security Interest or
Quasi-Security is created prior to the date on which such company becomes
a Material Subsidiary of the Company and is not created or increased in
contemplation of such company being acquired and/or becoming a Material
Subsidiary of the Company and the Security Interest or Quasi-Security is
removed or discharged within 6 months of the date of such company becoming
a Material Subsidiary of the
Company;
|
|
|
19.5.3.8
|
any
Security Interest or Quasi-Security created on any asset to secure any
Financial Indebtedness incurred in connection with the financing of any
asset or project in respect of which the repayment of that Financial
Indebtedness is to be made from the revenues arising out of, or other
proceeds of realisation from, that asset or project, with recourse to
those revenues and proceeds and other assets used in connection with, or
forming the subject matter of, that asset or project but without recourse
(or with such limited recourse as the Majority Lenders may from time to
time agree) to any other assets of the
Group;
|
|
|
19.5.3.9
|
any
netting arrangements under any swap or other hedging transaction which is
on standard market terms;
|
|
|
19.5.3.10
|
any
Security Interest or Quasi-Security created or outstanding with the prior
approval of the Majority Lenders;
and
|
|
|
19.5.3.11
|
any
Security Interest or Quasi-Security created or outstanding on or over
assets of the Company or any of its Material Subsidiaries provided that
the aggregate outstanding principal or nominal amount secured by all
Security Interests and Quasi-Security created or outstanding under this
exception on or over such assets shall not at any time exceed £25,000,000
or its equivalent.
|
|
19.6
|
Disposals
|
|
|
19.6.1
|
Except
as provided below, no member of the Group may, either in a single
transaction or in a series of transactions and whether related or not,
dispose of all or any part of its assets (other than cash) where the
higher of the market value and the net consideration receivable (when
aggregated with the higher of the market value and the net consideration
receivable from any previous disposal by members of the Group) exceeds
£5,000,000 (or its equivalent) in total during the term of this
Agreement.
|
|
|
19.6.2
|
Clause
19.6.1 does not apply to:
|
|
|
19.6.2.1
|
any
disposal made in the ordinary course of business or operations of the
disposing entity (including, without limitation, disposals of subsidiaries
or lines of business, provided that this shall not include a disposal of
the core electricity distribution
business);
|
|
|
19.6.2.2
|
disposals
on normal commercial terms of obsolete assets or assets no longer required
for the purpose of the relevant Person's business or
operations;
|
|
|
19.6.2.3
|
any
realisation of investments acquired, purchased or made by the temporary
application of funds not immediately required in the relevant Person's
business or operations;
|
|
|
19.6.2.4
|
the
exchange of assets for other assets of a similar or superior nature and
value, or the sale of assets on normal commercial terms for cash which is
payable in full on the completion of the sale and is to be, and is,
applied in or towards the purchase of similar assets within 6
months;
|
|
|
19.6.2.5
|
the
disposal of assets by one wholly-owned Subsidiary of the Company to
another or (if the consideration for the disposal does not exceed a normal
commercial consideration) to the Company by one of its
Subsidiaries;
|
|
|
19.6.2.6
|
disposals
in connection with sale-and-leaseback or sale and repurchase transactions
or any other form of "off balance sheet" financing, provided that the
aggregate book value (in the books of the disposing party) of all assets
the subject of all such disposals made during the period commencing on the
date of this Agreement and ending on the date when no amount remains to be
lent or remains payable under this Agreement shall not exceed £50,000,000;
and
|
|
|
19.6.2.7
|
any
disposal which the Majority Lenders shall have agreed shall not be taken
into account.
|
|
19.7
|
Environmental
matters
|
The
Company will and will ensure that its Material Subsidiaries will comply with all
applicable Environmental Law and other regulations, orders or other law
applicable to the conduct of the business of the supply or distribution of
electricity, in each case, where failure to do so would have a Material Adverse
Effect.
|
19.8
|
Insurance
|
Each
member of the Group must insure its business and assets with insurance companies
to such an extent and against such risks as that member of the Group reasonably
considers to be appropriate, having regard to the insurance arrangements of
companies engaged in similar business.
|
19.9
|
Merger
The Company shall not enter into any
amalgamation, demerger, merger or corporate
reconstruction.
|
|
19.10
|
Change of
business
The Company shall procure that no
substantial change is made to the general nature of the business of the
Company or the Group from that carried on at the date of this
Agreement.
|
|
19.11
|
Acquisitions
Except as provided below, neither the
Company nor any Material Subsidiary may acquire a company or any shares or
securities or a business or undertaking (or, in each case, any interest in
any of them).
|
|
|
19.11.1
|
Provided
that no Event of Default is continuing on the date of the acquisition or
would occur as a result of the acquisition, Clause 19.11.1 does not apply
to:
|
|
|
19.11.1.1
|
an
acquisition by a member of the Group of an asset sold, leased, transferred
or otherwise disposed of by another member of the Group as permitted under
clause 19.6.2 above;
|
|
|
19.11.1.2
|
an
acquisition where the consideration (including associated costs and
expenses) for the acquisition (when aggregated with the consideration
(including associated costs and expenses) for any other acquisition
permitted under this paragraph during the term of this Agreement does not
exceed 2.5% of the sum of the issued share capital, share premium and
consolidated reserves (including retained earnings) of the Company, as
shown by its most recent audited consolidated financial statements;
and
|
|
|
19.11.1.3
|
any
acquisition which the Majority Lenders shall have consented to in
writing.
|
|
19.12
|
Prohibition on the Debt
Purchase Transactions of the Group
The Company shall not, and shall procure
that each other member of the Group shall not, enter into any Debt
Purchase Transaction or beneficially own all or any part of the share
capital of a company that is a Lender or a party to a Debt Purchase
Transaction of the type referred to in paragraphs (b) and (c) of the
definition of Debt Purchase
Transaction.
|
|
20.
|
DEFAULT
|
|
20.1
|
Events of
Default
|
Each of
the events set out in this Clause is an Event of Default.
|
20.2
|
Non-payment
|
The
Company fails to pay any sum payable under any Finance Document when due
unless:
|
|
20.2.1
|
its
failure to pay is caused by administrative or technical error;
and
|
|
|
20.2.2
|
payment
is made within 5 Business Days of its due
date.
|
|
20.3
|
Breach of other
obligations
|
|
|
20.3.1
|
The
Company does not perform or comply with its obligations under
Clause 18 (Financial covenants), Clause 19.5 (Negative Pledge),
Clause 19.6 (Disposals) or Clause 19.11
(Acquisitions).
|
|
|
20.3.2
|
The
Company does not perform or comply with any of its other obligations under
any Finance Document in any material respect or any representation or
warranty by the Company in this Agreement or in any document delivered
under it is or proves to have been incorrect when made or deemed repeated,
unless the non-compliance or circumstances giving rise to the
misrepresentation, as the case may be, is capable of remedy and is not
remedied within 30 Business Days of the earlier of the Facility Agent
giving notice requiring the same to be remedied and the Company becoming
aware of such non-compliance or misrepresentation, as the case may
be.
|
|
20.4
|
Cross-default
|
|
|
20.4.1
|
Any
Financial Indebtedness of the Company is not paid when due nor within any
originally applicable grace period.
|
|
|
20.4.2
|
Any
Financial Indebtedness of the Company is declared to be or otherwise
becomes due and payable prior to its specified maturity as a result of an
event of default (however
described).
|
|
|
20.4.3
|
Any
commitment for any Financial Indebtedness of the Company is cancelled or
suspended by a creditor of the Company as a result of an event of default
(however described).
|
|
|
20.4.4
|
Any
creditor of the Company becomes entitled to declare any Financial
Indebtedness of the Company due and payable prior to its specified
maturity as a result of an event of default (however
described).
|
|
|
20.4.5
|
No
Event of Default will occur under this clause 20.4 unless and until the
aggregate amount of such Financial Indebtedness falling within clauses
20.4.1 to 20.4.4 above is more than £20,000,000 or its equivalent in any
other currency or currencies.
|
|
20.5
|
Insolvency
|
|
|
20.5.1
|
Any
of the following occurs in respect of the
Company:
|
|
|
20.5.1.1
|
it
is unable to pay its debts generally as they fall due or it is deemed by a
court of competent jurisdiction to be
insolvent;
|
|
|
20.5.1.2
|
it
suspends making payments on all or any class of its debts or publicly
announces an intention to do so;
|
|
|
20.5.1.3
|
by
reason of actual or anticipated financial difficulties, it begins
negotiations with all or any class of its creditors for the general
rescheduling of its indebtedness;
or
|
|
|
20.5.1.4
|
a
moratorium is declared in respect of any of its
indebtedness.
|
|
|
20.5.2
|
If
a moratorium occurs in respect of the Company, the ending of the
moratorium will not remedy any Event of Default caused by the
moratorium.
|
|
20.6
|
Insolvency
proceedings
|
|
|
20.6.1
|
Except
as provided below, any of the following occurs in respect of the
Company:
|
|
|
20.6.1.1
|
any
person presents a petition for its winding-up, administration or
dissolution;
|
|
|
20.6.1.2
|
an
order for its winding-up, administration or dissolution is
made;
|
|
|
20.6.1.3
|
any
liquidator, trustee in bankruptcy, judicial custodian, compulsory manager,
receiver, administrative receiver, administrator or similar officer is
appointed in respect of it or any of its
assets;
|
|
|
20.6.1.4
|
its
directors or other officers request the appointment of a liquidator,
trustee in bankruptcy, judicial custodian, compulsory manager, receiver,
administrative receiver, administrator or similar officer;
or
|
|
|
20.6.1.5
|
any
other analogous step or procedure is taken in any
jurisdiction.
|
|
|
20.6.2
|
Clause
20.6.1 does not apply to (i) a petition for winding-up presented by a
creditor which is being actively contested in good faith and with due
diligence and with a reasonable prospect of success or (ii) a voluntary
solvent winding-up, amalgamation, reconstruction or reorganisation or
otherwise part of a solvent scheme of arrangement, in each case on terms
approved by the Majority Lenders.
|
|
20.7
|
Creditors'
process
|
A
distress, attachment, execution or other legal process material in relation to
the Company's ability to perform its payment obligations under this Agreement is
levied, enforced or sued out on or against the assets of the Company and is not
discharged or stayed within 90 days.
|
20.8
|
Licence
|
Either
(1) the Authority gives notice in writing of the revocation of the Licence in
accordance with its terms and that notice is not withdrawn or contested in good
faith by appropriate proceedings or (2) the Licence is revoked, in either case,
other than in circumstances which permit the Company or its Affiliates to carry
on the distribution business of the Company either without a licence as a result
of any change in the Act or regulatory regime or with a new licence, permitting
the distribution of electricity in the authorised areas covered by the Licence,
issued under the Act or pursuant to the Utilities Act, 2000.
|
20.9
|
Balancing and Settlement
Code
|
|
|
20.9.1
|
The
Company ceases to be a party to the Balancing and Settlement Code
Framework Agreement other than in circumstances where the Company is able
to carry its distribution business;
or
|
|
|
20.9.2
|
the
Company breaches the Balancing and Settlement Code and such breach has or
is reasonably likely to have a Material Adverse Effect other than in
circumstances where the Company is able to carry on its distribution
business.
|
|
20.10
|
Unlawfulness and
invalidity
|
|
|
20.10.1
|
It
is or becomes unlawful for the Company to perform any of its obligations
under the Finance Documents in any material
respect.
|
|
|
20.10.2
|
Any
obligation or obligations of the Company under any Finance
Documents are not (subject to the Legal Reservations) or cease
to be legal, valid, binding or enforceable and the cessation individually
or cumulatively materially and adversely affects the interests of the
Lenders under the Finance
Documents.
|
|
20.11
|
Cessation of
business
The Company suspends or ceases to carry on
(or threatens to suspend or cease to carry on) all or a material part of
its business except as a result of a disposal permitted by clause
19.6.
|
|
20.12
|
Material Adverse
Effect
Any event or circumstance occurs which has
or is reasonably likely to have a Material Adverse
Effect.
|
|
20.13
|
Acceleration
If an Event of Default is outstanding, the
Facility Agent may, and must if so instructed by the Majority Lenders, by
notice to the Company:
|
|
|
20.13.1
|
cancel
the Total Commitments; and/or
|
|
|
20.13.2
|
declare
that all or part of any amounts outstanding under the Finance Documents
are:
|
|
|
20.13.2.1
|
immediately
due and payable; and/or
|
|
|
20.13.2.2
|
payable
on demand by the Facility Agent acting on the instructions of the Majority
Lenders.
|
Any
notice given under this subclause will take effect in accordance with its
terms.
|
21.
|
THE ADMINISTRATIVE
PARTIES
|
|
21.1
|
Appointment and duties of the
Facility Agent
|
|
|
21.1.1
|
Each
Finance Party (other than the Facility Agent) irrevocably appoints the
Facility Agent to act as its agent under the Finance
Documents.
|
|
|
21.1.2
|
Each
Finance Party irrevocably authorises the Facility Agent
to:
|
|
|
21.1.2.1
|
perform
the duties and to exercise the rights, powers and discretions that are
specifically given to it under the Finance Documents, together with any
other incidental rights, powers and discretions;
and
|
|
|
21.1.2.2
|
execute
each Finance Document expressed to be executed by the Facility
Agent.
|
|
|
21.1.3
|
The
Facility Agent has only those duties which are expressly specified in the
Finance Documents. Those duties are solely of a mechanical and
administrative nature.
|
|
21.2
|
Role of the Mandated Lead
Arranger
|
Except as
specifically provided in the Finance Documents, no Mandated Lead Arranger has
any obligations of any kind to any other Party in connection with any Finance
Document.
|
21.3
|
No fiduciary
duties
|
Except as
specifically provided in a Finance Document, nothing in the Finance Documents
makes an Administrative Party a trustee or fiduciary for any other Party or any
other person. No Administrative Party need hold in trust any moneys
paid to it for a Party or be liable to account for interest on those
moneys.
|
21.4
|
Individual position of an
Administrative Party
|
|
|
21.4.1
|
If
it is also a Lender, each Administrative Party has the same rights and
powers under the Finance Documents as any other Lender and may exercise
those rights and powers as though it were not an Administrative
Party.
|
|
|
21.4.2
|
Each
Administrative Party may:
|
|
|
21.4.2.1
|
carry
on any business with the Company or its related entities (including acting
as an agent or a trustee for any other financing);
and
|
|
|
21.4.2.2
|
retain
any profits or remuneration it receives under the Finance Documents or in
relation to any other business it carries on with the Company or its
related entities.
|
|
21.5
|
Reliance
|
The
Facility Agent may:
|
|
21.5.1
|
rely
on any notice or document believed by it to be genuine and correct and to
have been signed by, or with the authority of, the proper
person;
|
|
|
21.5.2
|
rely
on any statement made by any person regarding any matters which may
reasonably be assumed to be within his knowledge or within his power to
verify;
|
|
|
21.5.3
|
engage,
pay for and rely on professional advisers selected by it (including those
representing a Party other than the Facility Agent);
and
|
|
|
21.5.4
|
act
under the Finance Documents through its personnel and
agents.
|
|
21.6
|
Majority Lenders'
instructions
|
|
|
21.6.1
|
The
Facility Agent is fully protected if it acts on the instructions of the
Majority Lenders in the exercise of any right, power or discretion or any
matter not expressly provided for in the Finance Documents. Any
such instructions given by the Majority Lenders will be binding on all the
Lenders. In the absence of instructions, the Facility Agent may
act as it considers to be in the best interests of all the
Lenders.
|
|
|
21.6.2
|
The
Facility Agent is not authorised to act on behalf of a Lender (without
first obtaining that Lender's consent) in any legal or arbitration
proceedings in connection with any Finance
Document.
|
|
|
21.6.3
|
The
Facility Agent may require the receipt of security satisfactory to it,
whether by way of payment in advance or otherwise, against any liability
or loss which it may incur in complying with the instructions of the
Majority Lenders.
|
|
21.7
|
Responsibility
|
|
|
21.7.1
|
No
Administrative Party is responsible to any other Finance Party for the
adequacy, accuracy or completeness
of:
|
|
|
21.7.1.1
|
any
Finance Document or any other document;
or
|
|
|
21.7.1.2
|
any
statement or information (whether written or oral) made in or supplied in
connection with any Finance
Document.
|
|
|
21.7.2
|
Without
affecting the responsibility of the Company for information supplied by it
or on its behalf in connection with any Finance Document, each Lender
confirms that it:
|
|
|
21.7.2.1
|
has
made, and will continue to make, its own independent appraisal of all
risks arising under or in connection with the Finance Documents (including
the financial condition and affairs of the Company and its related
entities and the nature and extent of any recourse against any Party or
its assets); and
|
|
|
21.7.2.2
|
has
not relied exclusively on any information provided to it by any
Administrative Party in connection with any Finance
Document.
|
|
|
21.7.3
|
|
|
21.7.3.1
|
Nothing
in this Agreement will oblige the Facility Agent to satisfy any know your
customer requirement in relation to the identity of any person on behalf
of any Finance Party.
|
|
|
21.7.3.2
|
Each
Finance Party confirms to the Facility Agent that it is solely responsible
for any know your customer requirements it is required to carry out and
that it may not rely on any statement in relation to those requirements
made by any other person.
|
|
21.8
|
Exclusion of
liability
|
|
|
21.8.1
|
The
Facility Agent is not liable or responsible to any other Finance Party for
any action taken or not taken by it in connection with any Finance
Document, unless directly caused by its gross negligence or wilful
misconduct.
|
|
|
21.8.2
|
The
Facility Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under the
Finance Documents to be paid by the Facility Agent, if the Facility Agent
has taken all necessary steps as soon as reasonably practicable to comply
with the regulations or operating procedures of any recognised clearing or
settlement system used by the Facility Agent for that
purpose.
|
|
|
21.8.3
|
No
Party may take any proceedings against any officer, employee or agent of
the Facility Agent in respect of any claim it might have against the
Facility Agent or in respect of any act or omission of any kind by that
officer, employee or agent in connection with any Finance
Document. Any officer, employee or agent of the Facility Agent
may rely on this Subclause and enforce its terms under the Contracts
(Rights of Third Parties) Xxx 0000.
|
|
21.9
|
Default
|
|
|
21.9.1
|
The
Facility Agent is not obliged to monitor or enquire whether a Default has
occurred. The Facility Agent is not deemed to have knowledge of
the occurrence of a Default.
|
|
|
21.9.2
|
If
the Facility Agent:
|
|
|
21.9.2.1
|
receives
notice from a Party referring to this Agreement, describing a Default and
stating that the event is a Default;
or
|
|
|
21.9.2.2
|
is
aware of the non-payment of any principal or interest or any fee payable
to a Lender under this Agreement,
|
it must
promptly notify the Lenders.
|
21.10
|
Information
|
|
|
21.10.1
|
The
Facility Agent must promptly forward to the person concerned the original
or a copy of any document which is delivered to the Facility Agent by a
Party for that person.
|
|
|
21.10.2
|
Except
where a Finance Document specifically provides otherwise, the Facility
Agent is not obliged to review or check the adequacy, accuracy or
completeness of any document it forwards to another
Party.
|
|
|
21.10.3
|
Except
as provided above, the Facility Agent has no
duty:
|
|
|
21.10.3.1
|
either
initially or on a continuing basis to provide any Lender with any credit
or other information concerning the risks arising under or in connection
with the Finance Documents (including any information relating to the
financial condition or affairs of the Company or its related entities or
the nature or extent of recourse against any Party or its assets) whether
coming into its possession before, on or after the date of this Agreement;
or
|
|
|
21.10.3.2
|
unless
specifically requested to do so by a Lender in accordance with a Finance
Document, to request any certificate or other document from the
Company.
|
|
|
21.10.4
|
In
acting as the Facility Agent, the agency division of the Facility Agent is
treated as a separate entity from its other divisions and
departments. Any information acquired by the Facility Agent
which, in its opinion, is acquired by it otherwise than in its capacity as
the Facility Agent may be treated as confidential by the Facility Agent
and will not be treated as information possessed by the Facility Agent in
its capacity as such.
|
|
|
21.10.5
|
The
Facility Agent is not obliged to disclose to any person any confidential
information supplied to it by a member of the Group solely for the purpose
of evaluating whether any waiver or amendment is required to any term of
the Finance Documents.
|
|
|
21.10.6
|
The
Company irrevocably authorises the Facility Agent to disclose to the other
Finance Parties any information which, in its opinion, is received by it
in its capacity as the Facility
Agent.
|
|
21.11
|
Indemnities
|
|
|
21.11.1
|
Without
limiting the liability of the Company under the Finance Documents, each
Lender must indemnify the Facility Agent for that Lender's Pro Rata Share
of any loss or liability incurred by the Facility Agent in acting as the
Facility Agent, except to the extent that the loss or liability is caused
by the Facility Agent's gross negligence or wilful misconduct or to the
extent that the Facility Agent has been reimbursed in full by the Company
for such loss or liability.
|
|
|
21.11.2
|
The
Facility Agent may deduct from any amount received by it for a Lender any
amount due to the Facility Agent from that Lender under a Finance Document
but unpaid.
|
|
|
21.11.3
|
The
Company must indemnify the Facility Agent against any loss or liability
properly incurred by the Facility Agent as a result
of:
|
|
|
21.11.3.1
|
investigating
any event which the Facility Agent reasonably believes to be a Default;
or
|
|
|
21.11.3.2
|
acting
or relying on any notice which the Facility Agent reasonably believes to
be genuine, correct and appropriately
authorised.
|
|
21.12
|
Compliance
The Facility Agent may refrain from doing
anything (including disclosing any information) which might, in its
opinion, constitute a breach of any law or regulation or be otherwise
actionable at the suit of any person, and may do anything which, in its
opinion, is necessary or desirable to comply with any law or
regulation.
|
|
21.13
|
Resignation of the Facility
Agent
|
|
|
21.13.1
|
The
Facility Agent may resign and appoint any of its Affiliates as successor
Facility Agent by giving notice to the Lenders and the
Company.
|
|
|
21.13.2
|
Alternatively,
the Facility Agent may resign by giving notice to the Lenders and the
Company, in which case the Majority Lenders may appoint a successor
Facility Agent.
|
|
|
21.13.3
|
If
no successor Facility Agent has been appointed under clause 21.13.2 above
within 30 days after notice of resignation was given, the Facility
Agent may appoint a successor Facility
Agent.
|
|
|
21.13.4
|
The
person(s) appointing a successor Facility Agent must, if practicable,
consult with the Company prior to the appointment. Any
successor Facility Agent must have an office in the
U.K.
|
|
|
21.13.5
|
The
resignation of the Facility Agent and the appointment of any successor
Facility Agent will both become effective only when the successor Facility
Agent notifies all the Parties that it accepts its
appointment. On giving the notification, the successor Facility
Agent will succeed to the position of the Facility Agent and the term
"Facility Agent"
will mean the successor Facility
Agent.
|
|
|
21.13.6
|
The
retiring Facility Agent must, at its own cost, make available to the
successor Facility Agent such documents and records and provide such
assistance as the successor Facility Agent may reasonably request for the
purposes of performing its functions as the Facility Agent under the
Finance Documents.
|
|
|
21.13.7
|
Upon
its resignation becoming effective, this Clause will continue to
benefit the retiring Facility Agent in respect of any action taken or not
taken by it in connection with the Finance Documents while it was the
Facility Agent, and, subject to Clause 21.13.6 above, it will have no
further obligations under any Finance
Document.
|
|
|
21.13.8
|
The
Majority Lenders may, by notice to the Facility Agent, require it to
resign under Clause 21.13.2 above.
|
|
21.14
|
Relationship with
Lenders
|
|
|
21.14.1
|
The
Facility Agent may treat each Lender as a Lender, entitled to payments
under this Agreement and as acting through its Facility Office(s) until it
has received not less than five Business Days' prior notice from that
Lender to the contrary.
|
|
|
21.14.2
|
The
Facility Agent may at any time, and must if requested to do so by the
Majority Lenders, convene a meeting of the
Lenders.
|
|
|
21.14.3
|
The
Facility Agent must keep a register of all the Parties and supply any
other Party with a copy of the register on request. The
register will include each Lender's Facility Office(s) and contact details
for the purposes of this Agreement.
|
|
21.15
|
Facility Agent's management
time
If the Facility Agent requires, any amount
payable to the Facility Agent by any Party under any indemnity or in
respect of any costs or expenses incurred by the Facility Agent under the
Finance Documents after the date of this Agreement may include the cost of
using its management time or other resources and will be calculated on the
basis of such reasonable daily or hourly rates as the Facility Agent may
notify to the relevant Party. This is in addition to any amount
in respect of fees or expenses paid or payable to the Facility Agent under
any other term of the Finance
Documents.
|
|
21.16
|
Notice
period
Where this Agreement specifies a minimum
period of notice to be given to the Facility Agent, the Facility Agent
may, at its discretion, accept a shorter notice
period.
|
|
22.
|
EVIDENCE AND
CALCULATIONS
|
|
22.1
|
Accounts
Accounts maintained by a Finance Party in
connection with this Agreement are prima facie evidence of the matters to
which they relate for the purpose of any litigation or arbitration
proceedings.
|
|
22.2
|
Certificates and
determinations
Any certification or determination by a
Finance Party of a rate or amount under the Finance Documents will be, in
the absence of manifest error, conclusive evidence of the matters to which
it relates.
|
|
22.3
|
Calculations
|
Any
interest or fee accruing under this Agreement accrues from day to day and is
calculated on the basis of the actual number of days elapsed and a year of 360
or 365 days or otherwise, depending on what the Facility Agent determines is
market practice.
|
23.
|
FEES
|
|
23.1
|
Facility Agent's
fee
|
The
Company must pay to the Facility Agent for its own account an annual agency fee
in the manner agreed between the Facility Agent and the Company.
|
23.2
|
Participation
fee
|
The
Company must pay a participation fee in the manner agreed between the Mandated
Lead Arrangers and the Company.
|
23.3
|
Commitment
fee
|
|
|
23.3.1
|
Subject
to clause 23.3.2, the Company must pay a commitment fee computed at the
rate of 50 per cent. of the Margin on the undrawn, uncancelled amount of
each Lender's Commitment for the Availability Period calculated from the
date of this Agreement.
|
|
|
23.3.2
|
If
the first Utilisation Date occurs within 1 day of the date of this
Agreement, then the commitment fee referred to in clause 23.3.1 above
shall instead be calculated from that first Utilisation Date but, for the
avoidance of doubt, if the first Utilisation Date occurs more than
1 day after the date of this Agreement, then the commitment fee shall
be calculated from the date of this
Agreement.
|
|
|
23.3.3
|
The
commitment fee is payable quarterly in arrears. Accrued commitment fee is
also payable to the Facility Agent for a Lender on the date its Commitment
is cancelled in full.
|
|
23.4
|
Utilisation
fee
|
|
|
23.4.1
|
The
Company must pay to the Facility Agent for each Lender a utilisation fee
computed at the rate of 0.25% per annum on the Total Commitments for each
day on which the aggregate amount of all drawn Loans exceeds
£75,000,000.
|
|
|
23.4.2
|
Utilisation
fee is payable on the amount of each Lender's share in the
Loans.
|
|
|
23.4.3
|
Accrued
utilisation fee is payable quarterly in arrear. Accrued
utilisation fee is also payable to the Facility Agent for a Lender on the
date its Commitment is cancelled in
full.
|
|
24.
|
INDEMNITIES AND BREAK
COSTS
|
|
24.1
|
Currency
indemnity
|
|
|
24.1.1
|
The
Company must, as an independent obligation, indemnify each Finance Party
against any loss or liability which that Finance Party incurs as a
consequence of:
|
|
|
24.1.1.1
|
that
Finance Party receiving an amount in respect of the Company's liability
under the Finance Documents; or
|
|
|
24.1.1.2
|
that
liability being converted into a claim, proof, judgment or
order,
|
in a
currency other than the currency in which the amount is expressed to be payable
under the relevant Finance Document.
|
|
24.1.2
|
Unless
otherwise required by law, the Company waives any right it may have in any
jurisdiction to pay any amount under the Finance Documents in a currency
other than that in which it is expressed to be
payable.
|
|
24.2
|
Other
indemnities
|
The
Company shall within 15 days of demand indemnify the Facility Agent and each
Lender against any funding or other cost, loss, expense or liability in an
amount certified by it in reasonable detail (together with documentation in
support) sustained or incurred by it as a direct result of:
|
|
24.2.1
|
the
occurrence of any Event of Default;
|
|
|
24.2.2
|
(other
than by reason of negligence or default by a Finance Party) a Loan not
being made after a Request has been delivered for that Loan;
or
|
|
|
24.2.3
|
the
receipt or recovery by any party (or the Facility Agent on its behalf) of
all or any part of a Loan or overdue sum due from the Company otherwise
than on the Final Maturity Date or Maturity Date (as relevant) of that
Loan or, in the case of an overdue sum, the last day of an interest period
relating to that overdue sum, as the case may be or a Loan or any part
thereof not being prepaid in accordance with a notice of
prepayment.
|
|
24.3
|
Break
Costs
|
|
|
24.3.1
|
The
Company must pay to each Lender its Break
Costs.
|
|
|
24.3.2
|
Break
Costs are the amount (if any) determined by the relevant Lender by
which:
|
|
|
24.3.2.1
|
the
interest which that Lender would have received for the period from the
date of receipt of any part of its share in a Loan or an overdue amount to
the last day of the applicable Term for that Loan or overdue amount if the
principal or overdue amount received had been paid on the last day of that
Term;
|
exceeds
|
|
24.3.2.2
|
the
amount which that Lender would be able to obtain by placing an amount
equal to the amount received by it on deposit with a leading bank in the
appropriate interbank market for a period starting on the Business Day
following receipt and ending on the last day of the applicable
Term.
|
|
|
24.3.3
|
Each
Lender must supply to the Facility Agent for the Company details of the
amount of any Break Costs claimed by it under this
Subclause.
|
|
25.
|
EXPENSES
|
|
25.1
|
Initial
costs
|
The
Company must pay to each Administrative Party the amount of all costs and
expenses (including legal fees) reasonably incurred by it in connection with the
negotiation, preparation, printing and execution of the Finance
Documents.
|
25.2
|
Subsequent
costs
|
The
Company must pay to the Facility Agent the amount of all costs and expenses
(including legal fees) reasonably incurred by it in connection
with:
|
|
25.2.1
|
the
negotiation, preparation, printing and execution of any Finance Document
(other than a Transfer Certificate) executed after the date of this
Agreement; and
|
|
|
25.2.2
|
any
amendment, waiver or consent requested by or on behalf of the Company or
specifically allowed by this
Agreement.
|
|
25.3
|
Enforcement
costs
|
The
Company must pay to each Finance Party the amount of all costs and expenses
(including legal fees) incurred by it in connection with the enforcement of, or
the preservation of any rights under, any Finance Document.
|
26.
|
AMENDMENTS AND
WAIVERS
|
|
26.1
|
Procedure
|
|
|
26.1.1
|
Except
as provided in this Clause, any term of the Finance Documents may be
amended or waived with the agreement of the Company and the Majority
Lenders. The Facility Agent may effect, on behalf of any
Finance Party, an amendment or waiver allowed under this
Clause.
|
|
|
26.1.2
|
The
Facility Agent must promptly notify the other Parties of any amendment or
waiver effected by it under clause 26.1.1 above. Any such
amendment or waiver is binding on all the
Parties.
|
|
26.2
|
Exceptions
|
|
|
26.2.1
|
An
amendment or waiver which relates
to:
|
|
|
26.2.1.1
|
the
definition of Majority
Lenders in Clause 1.1
(Definitions);
|
|
|
26.2.1.2
|
an
extension of the date of payment of any amount to a Lender under the
Finance Documents;
|
|
|
26.2.1.3
|
a
reduction in the Margin or a reduction in the amount of any payment of
principal, interest, fee or other amount payable to a Lender under the
Finance Documents;
|
|
|
26.2.1.4
|
an
increase in, or an extension of, a Commitment or the Total
Commitments;
|
|
|
26.2.1.5
|
a
term of a Finance Document which expressly requires the consent of each
Lender;
|
|
|
26.2.1.6
|
the
right of a Lender to assign or transfer its rights or obligations under
the Finance Documents; or
|
|
|
26.2.1.7
|
this
Clause,
|
may only
be made with the consent of all the Lenders.
|
|
26.2.2
|
An
amendment or waiver which relates to the rights or obligations of an
Administrative Party may only be made with the consent of that
Administrative Party.
|
|
26.3
|
Change of
currency
|
If a
change in any currency of a country occurs (including where there is more than
one currency or currency unit recognised at the same time as the lawful currency
of a country), the Finance Documents will be amended to the extent the Facility
Agent (acting reasonably and after consultation with the Company) determines is
necessary to reflect the change.
|
26.4
|
Waivers and remedies
cumulative
|
The
rights of each Finance Party under the Finance Documents:
|
|
26.4.1
|
may
be exercised as often as necessary;
|
|
|
26.4.2
|
are
cumulative and not exclusive of its rights under the general law;
and
|
|
|
26.4.3
|
may
be waived only in writing and
specifically.
|
Delay in
exercising or non-exercise of any right is not a waiver of that
right.
|
27.
|
CHANGES TO THE
PARTIES
|
|
27.1
|
Assignments and transfers by
the Company
|
The
Company may not assign or transfer any of its rights and obligations under the
Finance Documents without the prior consent of all the Lenders.
|
27.2
|
Assignments and transfers by
Lenders
|
|
|
27.2.1
|
A
Lender (the Existing
Lender) may, subject to the following provisions of this Subclause,
at any time assign or transfer (including by way of novation) any of its
rights and obligations under this Agreement to any other person (the New
Lender).
|
|
|
27.2.2
|
Unless
the Company and the Facility Agent otherwise agree, a transfer of part of
a Commitment or rights and obligations under this Agreement by the
Existing Lender must be in a minimum amount of
£5,000,000.
|
|
|
27.2.3
|
An
Existing Lender must consult with the Company for no more than five
Business Days before it may make an assignment or transfer unless the New
Lender is another Lender or an Affiliate of a Lender or an Event of
Default has occurred and is
outstanding.
|
|
|
27.2.4
|
The
Facility Agent is not obliged to execute a Transfer Certificate until it
has completed all know your customer requirements to its
satisfaction. The Facility Agent must promptly notify the
Existing Lender and the New Lender if there are any such
requirements.
|
|
|
27.2.5
|
A
transfer of obligations will be effective only if
either:
|
|
|
27.2.5.1
|
the
obligations are novated in accordance with the following provisions of
this Clause; or
|
|
|
27.2.5.2
|
the
New Lender confirms to the Facility Agent and the Company in form and
substance satisfactory to the Facility Agent that it is bound by the terms
of this Agreement as a Lender. On the transfer becoming
effective in this manner the Existing Lender will be released from its
obligations under this Agreement to the extent that they are transferred
to the New Lender.
|
|
|
27.2.6
|
Unless
the Facility Agent otherwise agrees, the New Lender must pay to the
Facility Agent for its own account, on or before the date any assignment
or transfer occurs, a fee of
£1,750.
|
|
|
27.2.7
|
Any
reference in this Agreement to a Lender includes a New Lender but excludes
a Lender if no amount is or may be owed to or by it under this
Agreement.
|
|
27.3
|
Procedure for transfer by way
of novations
|
|
|
27.3.1
|
In
this Subclause:
|
Transfer Date means, for a
Transfer Certificate, the later of:
|
|
27.3.1.1
|
the
proposed Transfer Date specified in that Transfer Certificate;
and
|
|
|
27.3.1.2
|
the
date on which the Facility Agent executes that Transfer
Certificate.
|
|
|
27.3.2
|
A
novation is effected if:
|
|
|
27.3.2.1
|
the
Existing Lender and the New Lender deliver to the Facility Agent a duly
completed Transfer Certificate; and
|
|
|
27.3.2.2
|
the
Facility Agent executes it.
|
The
Facility Agent must execute as soon as reasonably practicable a Transfer
Certificate delivered to it and which appears on its face to be in
order.
|
|
27.3.3
|
Each
Party (other than the Existing Lender and the New Lender) irrevocably
authorises the Facility Agent to execute any duly completed Transfer
Certificate on its behalf.
|
|
|
27.3.4
|
On
the Transfer Date:
|
|
|
27.3.4.1
|
the
New Lender will assume the rights and obligations of the Existing Lender
expressed to be the subject of the novation in the Transfer Certificate in
substitution for the Existing Lender;
and
|
|
|
27.3.4.2
|
the
Existing Lender will be released from those obligations and cease to have
those rights.
|
|
27.4
|
Limitation of responsibility of
Existing Lender
|
|
|
27.4.1
|
Unless
expressly agreed to the contrary, an Existing Lender is not responsible to
a New Lender for the legality, validity, adequacy, accuracy, completeness
or performance of:
|
|
|
27.4.1.1
|
any
Finance Document or any other document;
or
|
|
|
27.4.1.2
|
any
statement or information (whether written or oral) made in or supplied in
connection with any Finance
Document,
|
and any
representations or warranties implied by law are excluded.
|
|
27.4.2
|
Each
New Lender confirms to the Existing Lender and the other Finance Parties
that it:
|
|
|
27.4.2.1
|
has
made, and will continue to make, its own independent appraisal of all
risks arising under or in connection with the Finance Documents (including
the financial condition and affairs of the Company and its related
entities and the nature and extent of any recourse against any Party or
its assets) in connection with its participation in this Agreement;
and
|
|
|
27.4.2.2
|
has
not relied exclusively on any information supplied to it by the Existing
Lender in connection with any Finance
Document.
|
|
|
27.4.3
|
Nothing
in any Finance Document requires an Existing Lender
to:
|
|
|
27.4.3.1
|
accept
a re-transfer from a New Lender of any of the rights and obligations
assigned or transferred under this Clause;
or
|
|
|
27.4.3.2
|
support
any losses incurred by the New Lender by reason of the non-performance by
the Company of its obligations under any Finance Document or
otherwise.
|
|
27.5
|
Costs resulting from change of
Lender or Facility Office
|
If:
|
|
27.5.1
|
a
Lender assigns or transfers any of its rights and obligations under the
Finance Documents or changes its Facility Office;
and
|
|
|
27.5.2
|
as
a result of circumstances existing at the date the assignment, transfer or
change occurs, the Company would be obliged to pay a Tax Payment or an
Increased Cost,
|
the
Company need only pay that Tax Payment or Increased Cost to the same extent that
it would have been obliged to if no assignment, transfer or change had
occurred.
|
27.6
|
Changes to the Reference
Banks
|
|
|
27.6.1
|
If
a Reference Bank (or, if a Reference Bank is not a Lender, the Lender of
which it is an Affiliate) ceases to be a Lender, the Facility Agent must
(in consultation with the Company) appoint another Lender or an Affiliate
of a Lender to replace that Reference
Bank.
|
|
|
27.6.2
|
If
a Reference Bank ceases to have a London office or novates or assigns all
its rights and obligations under this Agreement or if any Commitments of
any Reference Bank are cancelled or if Loans it has advanced are prepaid
it shall be replaced as a Reference Bank by such other Bank with an office
in London as the Facility Agent (after consultation with the Company)
shall designate by notice to the Company and the
Banks.
|
|
28.
|
Disclosure of
Information
|
|
|
28.1.1
|
Each
Finance Party must keep confidential any information supplied to it by or
on behalf of the Company in connection with the Finance Documents.
However, a Finance Party is entitled to disclose
information:
|
|
|
28.1.1.1
|
which
is publicly available, other than as a result of a breach by that Finance
Party of this Clause;
|
|
|
28.1.1.2
|
in
connection with any legal or arbitration
proceedings;
|
|
|
28.1.1.3
|
if
required to do so under any law or
regulation;
|
|
|
28.1.1.4
|
to
a governmental, banking, taxation or other regulatory
authority;
|
|
|
28.1.1.5
|
to
its professional advisers;
|
|
|
28.1.1.6
|
to
the extent allowed under clause 28.1.2 below;
or
|
|
|
28.1.1.7
|
with
the agreement of the Company.
|
|
|
28.1.2
|
A
Finance Party may disclose to an Affiliate or any person with whom it may
enter, or has entered into, any kind of transfer, participation or other
agreement in relation to this Agreement (a participant):
|
|
|
28.1.2.1
|
a
copy of any Finance Document; and
|
|
|
28.1.2.2
|
any
information which that Finance Party has acquired under or in connection
with any Finance Document.
|
However,
before a participant may receive any confidential information, it must agree
with the relevant Finance Party to keep that information confidential on the
terms of clause 28.1.2.1 above.
This
Clause supersedes any previous confidentiality undertaking given by a Finance
Party in connection with this Agreement prior to it becoming a
Party.
|
29.
|
SET-OFF
|
A Finance
Party may set off any matured obligation owed to it by the Company under the
Finance Documents (to the extent beneficially owned by that Finance Party)
against any obligation (whether or not matured) owed by that Finance Party to
the Company, regardless of the place of payment, booking branch or currency of
either obligation. If the obligations are in different currencies,
the Finance Party may convert either obligation at a market rate of exchange in
its usual course of business for the purpose of the set-off.
|
30.
|
PRO RATA
SHARING
|
|
30.1
|
Redistribution
|
If any
amount owing by the Company under this Agreement to a Lender (the recovering Lender) is
discharged by payment, set-off or any other manner other than through the
Facility Agent under this Agreement (a recovery), then:
|
|
30.1.1
|
the
recovering Lender must, within three Business Days, supply details of the
recovery to the Facility Agent;
|
|
|
30.1.2
|
the
Facility Agent must calculate whether the recovery is in excess of the
amount which the recovering Lender would have received if the recovery had
been received by the Facility Agent under this Agreement;
and
|
|
|
30.1.3
|
the
recovering Lender must pay to the Facility Agent an amount equal to the
excess (the redistribution).
|
|
30.2
|
Effect of
redistribution
|
|
|
30.2.1
|
The
Facility Agent must treat a redistribution as if it were a payment by the
Company under this Agreement and distribute it among the Lenders, other
than the recovering Lender,
accordingly.
|
|
|
30.2.2
|
When
the Facility Agent makes a distribution under clause 30.2.1 above, the
recovering Lender will be subrogated to the rights of the Finance Parties
which have shared in that
redistribution.
|
|
|
30.2.3
|
If
and to the extent that the recovering Lender is not able to rely on any
rights of subrogation under clause 30.2.2 above, the Company will owe the
recovering Lender a debt which is equal to the redistribution, immediately
payable and of the type originally
discharged.
|
|
|
30.2.4
|
If:
|
|
|
30.2.4.1
|
a
recovering Lender must subsequently return a recovery, or an amount
measured by reference to a recovery, to the Company;
and
|
|
|
30.2.4.2
|
the
recovering Lender has paid a redistribution in relation to that
recovery,
|
each
Finance Party must reimburse the recovering Lender all or the appropriate
portion of the redistribution paid to that Finance Party, together with interest
for the period while it held the re-distribution. In this event, the
subrogation in clause 30.2.2 above will operate in reverse to the extent of the
reimbursement.
|
30.3
|
Exceptions
|
Notwithstanding
any other term of this Clause, a recovering Lender need not pay a redistribution
to the extent that:
|
|
30.3.1
|
it
would not, after the payment, have a valid claim against the Company in
the amount of the redistribution;
or
|
|
|
30.3.2
|
it
would be sharing with another Finance Party any amount which the
recovering Lender has received or recovered as a result of legal or
arbitration proceedings, where:
|
|
|
30.3.2.1
|
the
recovering Lender notified the Facility Agent of those proceedings;
and
|
|
|
30.3.2.2
|
the
other Finance Party had an opportunity to participate in those proceedings
but did not do so or did not take separate legal or arbitration
proceedings as soon as reasonably practicable after receiving notice of
them.
|
|
31.
|
SEVERABILITY
|
|
31.1
|
If
a term of a Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not
affect:
|
|
|
31.1.1
|
the
legality, validity or enforceability in that jurisdiction of any other
term of the Finance Documents; or
|
|
|
31.1.2
|
the
legality, validity or enforceability in other jurisdictions of that or any
other term of the Finance
Documents.
|
|
32.
|
COUNTERPARTS
|
Each
Finance Document may be executed in any number of counterparts. This
has the same effect as if the signatures on the counterparts were on a single
copy of the Finance Document.
|
33.
|
NOTICES
|
|
33.1
|
In
writing
|
|
|
33.1.1
|
Any
communication in connection with a Finance Document must be in writing
and, unless otherwise stated, may be
given:
|
|
|
33.1.1.1
|
in
person, by post, or fax or any other electronic communication approved by
the Facility Agent; or
|
|
|
33.1.1.2
|
if
between the Facility Agent and a Lender and the Facility Agent and the
Lender agree, by e-mail or other electronic
communication.
|
|
|
33.1.2
|
For
the purpose of the Finance Documents, an electronic communication will be
treated as being in writing.
|
|
|
33.1.3
|
Unless
it is agreed to the contrary, any consent or agreement required under a
Finance Document must be given in
writing.
|
|
33.2
|
Contact
details
|
|
|
33.2.1
|
Except
as provided below, the contact details of each Party for all
communications in connection with the Finance Documents are those notified
by that Party for this purpose to the Facility Agent on or before the date
it becomes a Party.
|
|
|
33.2.2
|
The
contact details of the Company for this purpose
are:
|
|
Address:
|
Xxxxxxxx,
Xxxxxx Xxxx, Xxxxxxx, XX0 0XX
|
|
|
Fax
number:
|
00000
000000
|
|
|
Phone
number:
|
0000
000 0000
|
|
|
E-mail:
|
xxxxx0@xxxxxxxxxxxx.xx.xx
|
|
|
Attention:
|
Xxxxx
Xxxx.
|
|
|
The
contact details of the Facility Agent for this purpose are:
|
||
|
Address:
|
0
Xxxxxx Xxxxxx, Xxxxxx X00 0XX
|
|
|
Phone
number:
|
000
0000 0000
|
|
|
Fax
number:
|
000
0000 0000
|
|
|
Attention:
|
Xxxxxx
Xxxxxxx, Corporate Trust and Loan
Agency
|
|
|
|
33.2.3
|
Any
Party may change its contact details by giving five Business Days' notice
to the Facility Agent or (in the case of the Facility Agent) to the other
Parties.
|
|
|
33.2.4
|
Where
a Party nominates a particular department or officer to receive a
communication, a communication will not be effective if it fails to
specify that department or officer.
|
|
33.3
|
Effectiveness
|
|
|
33.3.1
|
Except
as provided below, any communication in connection with a Finance Document
will be deemed to be given as
follows:
|
|
|
33.3.1.1
|
if
delivered in person, at the time of
delivery;
|
|
|
33.3.1.2
|
if
posted, five days after being deposited in the post, postage prepaid, in a
correctly addressed envelope; and
|
|
|
33.3.1.3
|
if
by fax, when received in legible
form.
|
|
|
33.3.2
|
A
communication given under clause 33.3.1 above but received on a
non-working day or after business hours in the place of receipt will only
be deemed to be given on the next working day in that
place.
|
|
|
33.3.3
|
A
communication to the Facility Agent will only be effective on actual
receipt by it.
|
|
33.4
|
The
Company
|
All
formal communication under the Finance Documents to or from the Company must be
sent through the Facility Agent.
|
34.
|
LANGUAGE
|
|
|
34.1.1
|
Any
notice given in connection with a Finance Document must be in
English.
|
|
|
34.1.2
|
Any
other document provided in connection with a Finance Document must
be:
|
|
|
34.1.2.1
|
in
English; or
|
|
|
34.1.2.2
|
(unless
the Facility Agent otherwise agrees) accompanied by a certified English
translation. In this case, the English translation prevails
unless the document is a statutory or other official
document.
|
|
35.
|
GOVERNING
LAW
|
This
Agreement and any non-contractual obligations arising out of or in connection
with it are governed by English law.
|
36.
|
ENFORCEMENT
|
|
36.1
|
Jurisdiction
|
|
|
36.1.1
|
The
English courts have exclusive jurisdiction to settle any dispute in
connection with any Finance Document including a dispute relating to any
non-contractual obligation arising out of or in connection with this
Agreement.
|
|
|
36.1.2
|
The
English courts
are the most appropriate and convenient courts to settle any such dispute
and the Company waives objection to those courts on the grounds of
inconvenient forum or otherwise in relation to proceedings in connection
with any Finance Document.
|
|
|
36.1.3
|
This
Clause is for the benefit of the Finance Parties only. To the
extent allowed by law, a Finance Party may
take:
|
|
|
36.1.3.1
|
proceedings
in any other court; and
|
|
|
36.1.3.2
|
concurrent
proceedings in any number of
jurisdictions.
|
This
Agreement has been entered into on the date stated at the beginning of this
Agreement.
SCHEDULE
1
Original
Parties
|
Name
of Original Lender
|
Commitments
|
|
HSBC
Bank plc
|
£50,000,000
|
|
Lloyds
TSB Bank plc
|
£40,000,000
|
|
Clydesdale
Bank PLC
|
£40,000,000
|
|
Alliance
& Leicester PLC
|
£25,000,000
|
|
Deutsche
Bank AG London Branch
|
£25,000,000
|
|
Bayerische
Landesbank London Branch
|
£20,000,000
|
|
The
Governor and Company of The Bank of Ireland
|
£10,000,000
|
SCHEDULE
2
Conditions
Precedent Documents
Company
|
1.
|
A
certified copy of the constitutional documents of the
Company.
|
|
2.
|
A
certified copy of a resolution of the board of directors or a committee of
the board of directors of the Company approving the terms of, and the
transactions contemplated by, the Finance
Documents.
|
|
3.
|
A
specimen of the signature of each person authorised on behalf of the
Company to execute or witness the execution of any Finance Document or to
sign or send any document or notice in connection with any Finance
Document.
|
|
4.
|
A
certificate of the Company (signed by a director) confirming that
borrowing the Total Commitments would not cause any borrowing limit
binding on the Company to be
exceeded.
|
Legal
opinions
|
5.
|
A
legal opinion of Eversheds LLP, legal advisers to the Mandated Lead
Arranger and the Facility Agent addressed to the Finance
Parties.
|
Other
documents and evidence
|
6.
|
Evidence
that all fees and expenses then due and payable from the Company under
this Agreement have been or will be paid no later than the first
Utilisation Date.
|
|
7.
|
The
Original Financial Statements.
|
|
8.
|
Evidence
that the Existing Facility Agreement has expired or will be prepaid and
cancelled in full on or by the first Utilisation
Date.
|
|
9.
|
The
Information Package.
|
|
10.
|
A
copy of any other Authorisation or other document, opinion or assurance
which the Facility Agent notifies the Company is necessary or desirable in
connection with the entry into and performance of the transactions
contemplated by any Finance Document or for the validity and
enforceability of any Finance
Document.
|
SCHEDULE
3
Form
of Request
|
To:
From:
Date:
|
HSBC BANK PLC as Facility
Agent
[ ]
[ ]
|
WESTERN POWER DISTRIBUTION (SOUTH
WEST) PLC - £210,000,000 Facility Agreement dated [ ] (as amended and restated from time
to time) (the "Agreement")
1. We
refer to the Agreement. This is a Request.
2. We
wish to borrow a Loan on the following terms:
(a) Utilisation
Date:
[ ]
(b) Amount/currency:
[ ]
(c) Term:
[ ].
3. Our
payment instructions are:
[ ].
|
4.
|
We
confirm that each condition precedent under the Agreement which must be
satisfied on the date of this Request is so
satisfied.
|
|
5
|
We
confirm that as at [relevant testing date]
Consolidated EBITDA was
[ ]
and Interest Payable was
[ ];
therefore, the ratio of Consolidated EBITDA to Interest Payable was [
] to 1.
|
|
6.
|
We
confirm that as at [relevant testing date] Regulatory Asset Base
was [
|
]
and Total Net Debt was [
|
];
therefore, Total Net Debt does not exceed an amount equal to 85% of the
Regulatory Asset Base.
|
7. This
Request is irrevocable.
By:
[ ]
SCHEDULE
4
Calculation
of the mandatory cost
|
1.
|
The
Mandatory Cost is an addition to the interest rate to compensate Lenders
for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions) or (b) the
requirements of the European Central
Bank.
|
|
2.
|
On
the first day of each Term (or as soon as possible
thereafter) the Facility Agent shall calculate, as a percentage
rate, a rate (the "Additional Cost Rate")
for each Lender, in accordance with the paragraphs set out
below. The Mandatory Cost will be calculated by the Facility
Agent as a weighted average of the Lenders' Additional Cost Rates
(weighted in proportion to the percentage participation of each Lender in
the relevant Loan) and will be expressed as a percentage rate per
annum.
|
|
3.
|
The
Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender
to the Facility Agent. This percentage will be certified by
that Lender in its notice to the Facility Agent to be its reasonable
determination of the cost (expressed as a percentage of that Lender's
participation in all Loans made from that Facility Office) of complying
with the minimum reserve requirements of the European Central Bank in
respect of loans made from that Facility
Office.
|
|
4.
|
The
Additional Cost Rate for any Lender lending from a Facility Office in the
United Kingdom will be calculated by the Facility Agent as
follows:
|
|
(a)
|
in
relation to a sterling Loan:
|
|
AB
+ C(B - D) +
E
x
0.01
100 - (A +
C)
|
Per cent. per annum |
|
(b)
|
in
relation to a Loan in any currency other than
sterling:
|
|
E
x
0.01
300
|
Per cent. per annum. |
Where:
|
A
|
is
the percentage of Eligible Liabilities (assuming these to be in excess of
any stated minimum) which that Lender is from time to time required to
maintain as an interest free cash ratio deposit with the Bank of England
to comply with cash ratio requirements.
|
|
|
B
|
is
the percentage rate of interest (excluding the Margin and the Mandatory
Cost and, if the Loan is an Unpaid Sum, the additional rate of interest
specified in clause 9.3.1 (Interest on overdue
amounts)) payable for the relevant Term on the Loan.
|
|
|
C
|
is
the percentage (if any) of Eligible Liabilities which that Lender is
required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
|
|
|
D
|
is
the percentage rate per annum payable by the Bank of England
to the Facility Agent on interest bearing Special
Deposits.
|
|
|
E
|
is
designed to compensate Lenders for amounts payable under the Fees
Rules and is calculated by the Facility Agent as being the
average of the most recent rates of charge supplied by the Reference Banks
to the Facility Agent pursuant to paragraph 7 below and expressed in
pounds per £1,000,000.
|
|
|
5.
|
For
the purposes of this Schedule:
|
|
|
(a)
|
"Eligible Liabilities"
and "Special
Deposits" have the meanings given to them from time to time under
or pursuant to the Bank of England Act 1998 or (as may be appropriate) by
the Bank of England;
|
|
|
(b)
|
"Fees Rules" means the
rules on periodic fees contained in the FSA Supervision Manual or such
other law or regulation as may be in force from time to time in respect of
the payment of fees for the acceptance of deposits;
|
|
|
(c)
|
"Fee Tariffs" means the
fee tariffs specified in the Fees Rules under the activity group A.1
Deposit acceptors (ignoring any minimum fee or zero rated fee required
pursuant to the Fees Rules but taking into account any applicable discount
rate);
|
|
|
(d)
|
"Tariff Base" has the
meaning given to it in, and will be calculated in accordance with, the
Fees Rules; and
|
|
|
(e)
|
"Unpaid Sum" means any
sum due and payable but unpaid by the Company under the
Finance Documents.
|
|
|
6.
|
In
application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent. will be included in the formula
as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting
figures shall be rounded to four decimal places.
|
|
|
7.
|
If
requested by the Facility Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority, supply
to the Facility Agent, the rate of charge payable by that Reference Bank
to the Financial Services Authority pursuant to the Fees Rules in respect
of the relevant financial year of the Financial Services Authority
(calculated for this purpose by that Reference Bank as being the average
of the Fee Tariffs applicable to that Reference Bank for that financial
year) and expressed in pounds per £1,000,000 of the Tariff Base of that
Reference Bank.
|
|
|
8.
|
Each
Lender shall supply any information required by the Facility Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information on
or prior to the date on which it becomes a Lender:
|
|
|
(e)
|
the
jurisdiction of its Facility Office; and
|
|
|
(f)
|
any
other information that the Facility Agent may reasonably require for such
purpose.
|
|
|
Each
Lender shall promptly notify the Facility Agent of any change to the
information provided by it pursuant to this paragraph.
|
||
|
9.
|
The
percentages of each Lender for the purpose of A and C above and the rates
of charge of each Reference Bank for the purpose of E above shall be
determined by the Facility Agent based upon the information
supplied to it pursuant to paragraphs 7 and 8 above and on the assumption
that, unless a Lender notifies the Facility Agent to the
contrary, each Lender's obligations in relation to cash ratio deposits and
Special Deposits are the same as those of a typical bank from its
jurisdiction of incorporation with a Facility Office in the same
jurisdiction as its Facility Office.
|
|
|
10.
|
The
Facility Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by
any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above is
true and correct in all respects.
|
|
|
11.
|
The
Facility Agent shall distribute the additional amounts received as a
result of the Mandatory Cost to the Lenders on the basis of the Additional
Cost Rate for each Lender based on the information provided by each Lender
and each Reference Bank pursuant to paragraphs 3, 7 and 8
above.
|
|
|
12.
|
Any
determination by the Facility Agent pursuant to this Schedule in relation
to a formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable to a Lender shall, in the absence of manifest error, be conclusive
and binding on all Parties.
|
|
|
13.
|
The
Facility Agent may from time to time, after consultation with the
Company and the
Lenders, determine and notify to all Parties any amendments which are
required to be made to this Schedule in order to comply with any change in
law, regulation or any requirements from time to time imposed by the Bank
of England, the Financial Services Authority or the European Central Bank
(or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all
Parties.
|
|
SCHEDULE
5
|
To:
|
HSBC BANK PLC as Facility
Agent
|
|
From:
|
[THE
EXISTING LENDER] (the Existing Lender) and
[THE NEW LENDER] (the New
Lender)
|
|
Date:
|
[ ]
|
WESTERN POWER DISTRIBUTION (SOUTH
WEST) PLC - £210,000,000 Facility Agreement dated [ ] (as amended and restated from time
to time) (the
Agreement)
We refer
to the Agreement. This is a Transfer Certificate.
|
1.
|
The
Existing Lender transfers by novation to the New Lender the Existing
Lender's rights and obligations referred to in the Schedule below in
accordance with the terms of the
Agreement.
|
|
2.
|
The
proposed Transfer Date is
[ ].
|
|
3.
|
The
administrative details of the New Lender for the purposes of the Agreement
are set out in the Schedule.
|
|
4.
|
This
Transfer Certificate and any non-contractual obligations arising out of or
in connection with it are governed by English
law.
|
THE
SCHEDULE
Rights
and obligations to be transferred by novation
[insert
relevant details, including applicable Commitment (or part)]
Administrative
details of the New Lender
[insert
details of Facility Office, address for notices and payment details
etc.]
[EXISTING
LENDER] [NEW LENDER]
By: By:
The
Transfer Date is confirmed by the Facility Agent as
[ ].
[ ]
By:
SCHEDULE
6
Intentionally
left blank
SCHEDULE
7
Form
of Compliance Certificate
To: HSBC BANK PLC as Facility
Agent
From: WESTERN POWER DISTRIBUTION (SOUTH
WEST) PLC
Date: [ ]
WESTERN POWER DISTRIBUTION (SOUTH
WEST) PLC -
£210,000,000 Facility Agreement dated
[ ]
(as amended and restated from time to time) (the Agreement)
|
1.
|
We
refer to the Agreement. This is a Compliance
Certificate.
|
|
2.
|
We
confirm that as at [relevant testing date],
Consolidated EBITDA was
[ ]
and Interest Payable was [], therefore the ratio of Consolidated EBITDA to
Interest Payable was [] to 1.
|
|
3.
|
We
confirm that as at [relevant testing date], Regulatory Asset Base was
[ ] and Total Net Debt was
[ ]; therefore Total Net
Debt does not exceed 85% of the Regulatory Asset
Base.
|
|
4.
|
We
set out below calculations establishing the figures in paragraph 2
above:
|
[ ].
|
5.
|
We
confirm that the following companies were Material Subsidiaries at
[relevant testing date]:
|
[ ].
|
6.
|
[We
confirm that no Default is outstanding as at [relevant testing date].]1
|
WESTERN
POWER DISTRIBUTION (SOUTH WEST) PLC
By:
Director
Director
___________________________________
|
1
|
If this statement cannot be made,
the certificate should identify any Default that is outstanding and the
steps, if any, being taken to remedy
it.
|
SIGNATORIES
THE
COMPANY
WESTERN
POWER DISTRIBUTION (SOUTH WEST) PLC
|
By:
|
Xxxxxx
Xxxxxxxxxx
|
|
Address:
|
Xxxxxxxx,
Xxxxxx Xxxx, Xxxxxxx, XX0 0XX
|
|
Fax:
|
00000
000000
|
THE
MANDATED LEAD ARRANGERS
HSBC
BANK PLC
|
By:
|
Xxxx
Xxxxx
|
|
Address:
|
0
Xxxxxx Xxxxxx, Xxxxxx X00 0XX
|
|
Fax:
|
000
0000 0000
|
LLOYDS
TSB BANK PLC
|
By:
|
Somchart
Sucharitkul
|
|
Address:
|
Wholesale
Loans Servicing, Xxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxx, XX0 0XX
|
|
Fax:
|
0000
000 0000
|
CLYDESDALE
BANK PLC
|
By:
|
Xxxx
Xxxxx
|
|
Address:
|
Corporate
& Structured Finance, 0xx Xxxxx, 00 Xxxxxxxxxxx Xxxxxx, Xxxxxx, XX0X
0XX
|
|
Fax:
|
000
0000 0000
|
THE
FACILITY AGENT
HSBC
BANK PLC
|
By:
|
Xxxx
Xxxxx
|
|
Address:
|
0
Xxxxxx Xxxxxx, Xxxxxx X00 0XX
|
|
Fax:
|
000
0000 0000
|
THE
ORIGINAL LENDERS
HSBC
BANK PLC
|
By:
|
Xxxx
Xxxxx
|
|
Address:
|
Process
Manager, Loans Administration, 00xx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx, X00
0XX
|
|
Fax:
|
000
0000 0000
|
LLOYDS
TSB BANK PLC
|
By:
|
Somchart
Sucharitkul
|
|
Address:
|
Wholesale
Loans Servicing, Xxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxx, XX0 0XX
|
|
Fax:
|
000
0000 0000
|
CLYDESDALE
BANK PLC
|
By:
|
Xxxx
Xxxxx
|
|
Address:
|
Corporate
& Structured Finance, 0xx Xxxxx, 00 Xxxxxxxxxxx Xxxxxx, Xxxxxx,XX0X
0XX
|
|
Fax:
|
000
0000 0000
|
DEUTSCHE
BANK AG LONDON BRANCH
|
By:
|
Xxxxxxx
Xxxxxxx-Xxxxx Xxxxxxxx
Xxxxxxxxx
|
|
Address:
|
Great
Winchester house, 0 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX
|
|
Fax:
|
000
0000 0000
|
ALLIANCE
& LEICESTER PLC
|
By:
|
X.X.
Xxxxxx
|
|
Address:
|
FAO
Corporate Administration Manager, 000 Xxxxxxxxx, Xxxxxxxxxx, X0
0XX
|
|
Fax
|
0000
000 0000
|
THE
GOVERNOR AND COMPANY OF THE BANK OF IRELAND
|
By:
|
Xxxxx
Xxxxxxx Xxxxxxx Xxxxxxx
|
|
Address:
|
Bow
Xxxxx Xxxxx, 0 Xxxxx Xxxxxx, Xxxxxx, XX0X 0XX
|
|
Fax:
|
000
0000 0000
|
BAYERISCHE
LANDESBANK LONDON BRANCH
|
By:
|
Xxxxxxxx
Xxxxxxxx Xxxxxxx Xxxxx
|
|
Address:
|
Bayern
LB London Branch, 00/00 Xxxxxx Xxxxxx, Xxxxxx, XX0X 0XX
|
|
Fax:
|
000
0000 0000
|
